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The family of a black man who died after being restrained by police officers who denied having heard him say “I can’t breathe” have condemned the police discipline system after two officers were cleared of gross misconduct.
Kevin Clarke, 35, died while in police custody in 2018, with the restraint having lasted more than 30 minutes.
Two Metropolitan police officers, PC Danielle Barnes and PC Elizabeth McAleenan, were cleared of gross misconduct and said they never heard Clarke say that he could not breathe.
An earlier inquest into the death the jury concluded at least one of the officers had heard him.
The discipline panel, which had an independent legal chair, found there was insufficient evidence to find either officer guilty of gross misconduct.
Tellecia Strachen, the sister of Clarke, who suffered from paranoid schizophrenia, said: “There is something wrong with the system – the system is broken and it’s not fit for purpose.
“It’s disrespectful to my brother as a human being – I’m extremely angry, disappointed, and I think it’s a waste of time.”
Catherine Elliott, the legally qualified chair of the panel, said: “The panel were not able to conclude that the words ‘I can’t breathe’ were uttered by Mr Clarke.
“The panel finds it not proved that either PC Barnes or PC McAleenan heard Mr Clarke say that he could not breathe. It follows that there cannot be a misconduct finding.”
Clarke was detained by police who believed he was suffering a serious mental health episode. He was placed in handcuffs and leg restaints.
Elliott said: “Once [Clarke] is in hand and leg restraints, his behaviour was more challenging.
“On a couple of occasions, it is possible that the words ‘I can’t breathe’ were said. His speech was so muffled that one couldn’t be confident of this.”
Elliott said there was “nothing to indicate” that any of the officers present at the scene had heard these words, and that it would be “extremely unusual if any of these officers had heard these words and simply ignored them”.
In October 2020, an inquest jury found the use of restraints on Clarke had “escalated the situation to a medical emergency”.
Elliott, clearing the officers at the discipline panel, said: “It would appear the decision to use the restraints was that [Clarke] was making attempts to stand up, and the fear for his safety grew.”
Cyrilia Davies Knight, a solicitor for Clarke’s family, said: “The family are deeply disappointed by the panel’s decision … This finding stands in stark contrast to the findings of 11 jurors at the inquest, who unanimously agreed that Kevin repeatedly said ‘I can’t breathe’ during his restraint, and ‘that at least one officer would have heard him say I can’t breathe at least once’.
“Sadly, the family had no expectations of justice as they believe this system is clearly not designed to deliver accountability, particularly where there is a death in police custody.
“This outcome, while devastating for the family, was sadly, in their opinion, inevitable.”
Met Supt Louise Sargent said: “The panel accepted that the two officers did not hear what Mr Clarke was saying, as he became increasingly agitated and his speech very muffled and then inaudible.
“They very carefully considered a large amount of officers’ body-worn video from the incident which could not prove Mr Clarke said those words.
“The panel highlighted that if the words were said, no officer reacted – ignoring Mr Clarke would be ‘extremely unusual’ from officers who had assessed a serious mental health episode and were trying to calm Mr Clarke, keep him from harm and hand him into the expert care of paramedics.
“The situation was fast-paced and challenging for everyone who tried to help Mr Clarke that day and his death was a tragedy.”
