This is the story:

A probationer police officer named Ian Tolmaer finished his shift at around 2am in the morning of 20 April 2003. Two hours later, still wearing his full police uniform, and displaying his police radio, numbered epaulettes and warrant card, Tolmaer was sitting in his car outside a local night-club waiting for a victim to happen along. Eventually, a young woman (“N”) was carried out of the club, severely intoxicated. Tolmaer approached the first aider who was caring for N and persuaded both of them that he was an on-duty police officer who was going to help N by taking her to a police station. She got into his car and he drove away, past three police stations, to his home. There, over a period of several hours, he raped and assaulted her. He made videos and still pictures of the assaults, which showed that N was asleep or unconscious during the attacks. He was 36. She was 18.

In March 2004, having earlier pleaded guilty to several counts of rape and indecent assault, Tolmaer was sentenced to 12 years in prison. There was no evidence that he had actually drugged N (by all accounts it was not necessary) or the sentence might have been even higher.

So far, so good.

Everybody takes the opportunity (police, newspapers, judge – see here and here) to condemn roundly the horrendously exploitative and totally unacceptable conduct of the police officer, who committed a gross and unimaginable breach of trust. Blah blah blah. You know, the kind of stuff that would be nice to hear if you thought they actually meant it, if you thought you might hear it again in another case one day, one where the evidence isn’t so inescapable that even a police officer accused of raping a drunken woman can’t think of a way to smear her name badly enough to escape conviction.

Anyhoo…

The law says* that “In respect of [wrongs] committed by constables… in the… purported performance of their functions… [a Chief Constable] shall in respect of any such

be treated for all purposes as joint [wrongdoer].” Which would mean that the Chief Constable would have to compensate any person wronged by one of the constables for which she is responsible (“vicarious liability”).

[* section 88(1) of the Police Act 1996.]

To you or I, if a policeman uses the trust that people place in his uniform to persuade a vulnerable member of the public to get into his car for help, with the intention of taking that person to another place where he can attack and abuse them – he is committing a wrong in the purported performance of his functions. The police themselves know this, in the quotes published in newspapers where he is described as a disgrace to the uniform, bringing the whole of the force into disrepute, making it doubly hard for them to win the trust of the public…

Yet Mr Justice Nelson did not see this at all.

In a judgement dated 16 November 2006, he analyses a number of cases on vicarious liability.

In the yes camp:

  • Lister (2002) – warden of a boarding house systematically sexually abuses two boys in his care. Since the owners of the school were responsible for the boys’ care, they are vicariously liable for the warden’s acts.
  • Mattis (2003) – doorman gets into a fight in the course of his duties, and later goes home to get a knife and stabs the victim on the streets. Since the stabbing was the “unfortunate culmination” of an incident that started when the doorman was on duty, the night-club owners were responsible for his later actions.
  • Weir (2003) – off duty policeman helping his girlfriend to move purports to arrest some youths rummaging amongst her belongings, throws one of them down the stairs and locks him up in a borrowed police van. Since he was “apparently acting in his capacity as a constable”, the police force was responsible for his action.
  • Bernard (2005) – police officer uses his status to try and get priority use of a payphone, then shoots a member of the public who isn’t having any of it, later arresting the victim for obstructing an officer in his duties. Since at all times he purported to act as an officer, the force was vicariously liable for his acts.

In the no camp:

  • Makanjuola (1989) – police officer uses his warrant card to gain admission to certain premises, then threatens a woman with deportation if she did not give him sexual favours. The court held that merely using one’s warrant card to obtain access to premises did not mean that the police authorities were responsible for the indecent assaults which the police officer later committed. (The judge in N’s case, however, suggested that this case may have been wrongly decided because the judge did not consider the officer’s conduct as a whole. I would agree.)
  • Hartwell (2004) – police officer helps himself to a police gun and goes to a bar where his girlfriend is working. Not purporting in any way to be acting as a police officer, he fires several shots in a jealous rampage, injuring a bystander. The police authorities were not held responsible for his actions since: “From first to last, …[his] activities had nothing whatever to do with any police duties, either actually or ostensibly.” (my emphasis).

To me, the cases most like this one are Lister (abusing position to commit sexual abuse against person entrusted to warden’s care), Bernard (abusing position to get an unwarranted access to something, in this case a telephone, that the officer in fact wanted for private purposes) and Makanjuola (abusing warrant card and position of authority in a premeditated attempt to get non-consensual sexual gratification).

However, the judge decided that actually Hartwell was the most relevant case which should be applied. His reasons?

There was no convincing explanation why Lister, Bernard and Makanjuola were different from N’s case.

  • Lister was said to be crucially different because the boys had been entrusted to the warden’s care in circumstances where the employer already owed the boys a duty of care. In this case, the police do not owe a general duty of care to members of the public, and there was nobody who did owe N a duty of care who entrusted that care to Tolmaer. But surely, once N (and the first aider who was keeping an eye on her) had entrusted herself to the care of a police officer whilst in a highly vulnerable state, surely then the police do owe her a duty to at least keep her safe?
  • Bernard was said to be different because the police officer tried to arrest the victim after the shooting, thereby proving that he saw himself as (pretending to act as) a police officer throughout, whereas in this case Tolmaer was “on the prowl” and did not do anything, once he had got N into his car, to show that he was in any way acting as a police officer or thinking of himself as (pretending to act as) a police officer. So, if he had tried to arrest her after the rape that would have made a difference, would it?
  • No attempt was made to distinguish Makanjuola at all. This may be because the decision in the actual case of Makanjuola was that there was no vicarious liability, but since the judge cast doubt on the correctness of the decision, it would have been helpful to say why this case is different. The tenor of the judgement suggests one difference which is that, like the Bernard case, the officer could be taken to have been acting in an official capacity when threatening deportation rather than using his warrant card only to create his opportunity. But, as I will argue below, the warrant card and uniform in fact were more than just Tolmaer’s “opportunity” in this case. They were crucial to his whole plan.

Nor was there any convincing explanation why Hartwell was the same. The judge pointed out superficial factual similarities, in that Tolmaer and the police officer in Hartwell were both off-duty and away from the geographical area where they would have been if they had been on duty. But he did not explain why these differences were at all relevant. Some of the police officers referred to in other cases were off-duty and off-beat, too.

And what about the fact that, in Hartwell, the police officer had not at any time from first to last, either actually or ostensibly acted as a police officer? The only connection between his being a police officer and the eventual shooting was that he used a police gun. This was seen as vital by the judges in Hartwell. Tolmaer, on the other hand, did actively claim to be acting in the course of his duties, and used his status to get N into his car and into his care, which was of course a vital prerequisite for him to carry out the rest of his plan. Being a police officer was crucial to his crime. There was no way to get the care of a drunken or drugged victim otherwise.

However, the judge did not think that this distinction was relevant. He gave no explanation for this, other than to say: “I do not accept the argument… When the facts are considered in the broad context of the case… it is neither fair nor just that vicarious liability should be imposed. The misuse of a warrant card by a rogue police constable, whenever he forms the intention to assault, is not sufficient to impose vicarious liability.” Why not? If a police officer uses his status to put members of the public in a vulnerable position, entrusting themselves to his care – being in fact entrusted to his care by others (first-aiders or friends) who might otherwise kick up a fuss if he abducted a semi-comatose woman – why is it then “unjust” that this should be taken to be something he did as a police officer?

The answer is simple. The judge admitted clearly that no one factor was decisive, that it was a matter of judgement. And his judgement was that the chief constable should not be responsible for the acts of police officers who use their uniform to rape women.

Because of course, as we all know,

NO
POLICE
OFFICER
EVER
RAPED
A
WOMAN
EVER
EVER
EVER
EVER
EVER.
RIGHT?

BUT
THAT
ONLY
HAPPENS
IN
FOREIGN
COUNTRIES.
RIGHT?

The sad truth is that the judge either does not see that there is a police culture that fosters rape and other abuse – not just police rapists, but also police officers who enable others to get away with rape, time and time again – or he does see it, but he does not see that this is the police’s problem. He does not see that they should do anything about it.

In my post yesterday, an American policeman accused of sexual assault was acquitted, but his employers paid out. In this case, an English policeman accused of rape was convicted (he was bang to rights even under our system), but his employers were not held to account.

If anyone is going to change the culture underlying these police attacks, it is the employers. It is the police authorities. For that reason, I would almost rather we did things the American way. Perhaps it would be better for one more rapist to walk free and for the system then to change, than to let the system forever remain unchallenged.

Or then, we could have justice. We could jail the rapist AND change the system. Now, wouldn’t that be something?

Amusing postscript?

Mr Tolmaer has learned something about oppression. In a “star letter” to Inside Times, for which he won £25, he says:

Where a group of people are isolated from mainstream society, and there is an obvious split between the weak and the powerful, it is easy for a culture of degradation, humiliation and infringement of rights to exist. For those ‘on the outside’ it would be unbelievable that such a culture of apathy and victimization could be perpetuated for years without being brought to the attention of the public. Yet those of us ‘on the inside’ endure these oppressive attitudes on a daily basis. It has existed for so long that it is perceived as ‘normal’…Being treated as merely an object is not a pleasant experience, yet it happens every day in various guises. Requests are denied, personal space is invaded and embarrassment is caused. Jokes made at [our] expense are passed off as ‘just having some fun’. Those who are justifiably depressed and unable to cope are told to ‘buck up’ and ‘not be so miserable’. Small wonder that some reach breaking point…

Is he talking about the women whom he has long objectified and victimised? Hell no. He’s learned his lesson the hard way. He’s talking about being a prisoner – and it sounds like poetic justice to me. Sweet.

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