A police officer accused of lying about what he said before a man was struck and killed by a police car has been cleared of misconduct after insisting he was “traumatised by the incident” and genuinely believed his inaccurate account was true.
PC James Taylor Fosbury was sitting in the front passenger seat of a Sussex Police vehicle driven by PC Corker during a pursuit on April 30, 2022.
The Specialist Enforcement Unit had become involved in the pursuit of an Audi driven by Arthur Hoelscher-Ermert.
Towards the end of the chase, Mr Hoelscher-Ermert ran from his vehicle and across the road, where he was struck by the police car.
He died at the scene.
What followed was a misconduct case centred on a crucial discrepancy between what Fosbury later said had happened and what recordings from inside the police vehicle revealed.
In his first written account, completed in the early hours of May 1, Fosbury stated: “I said that we would have to turn back and take the turning prior that we had just passed.”
Four days later, after viewing body-worn video and footage from the police vehicle, he gave a more detailed account.
This time he recalled telling PC Corker words to the effect of: “We will not be able to turn up it, sorry, we will have to turn and go back up the last junction.”
But there was a major problem with his recollection.
When the missing audio was recovered, it became apparent that Fosbury had not said he needed to turn around at the point described in his statements.
The Appropriate Authority alleged he had deliberately lied in an attempt to exculpate either PC Corker or himself from responsibility for the collision.
Alternatively, it alleged he had been careless and failed to exercise proper diligence when preparing the inaccurate accounts.
Fosbury denied both allegations.
He maintained that the inaccuracies arose amid the stressful circumstances of a post-incident procedure following a fatality and said he genuinely believed, when writing his statements, that the words he recorded were words he had actually spoken.
Giving evidence, Fosbury told the Panel: “I was traumatised by the incident, that might have been the reason I said what I thought I did.”
There was evidence supporting his description of his condition following the collision.
Acting Superintendent Sarah Gillies, who was involved in the post-incident procedure, told the hearing that Fosbury appeared “emotional and exhausted.”
The Panel described Gillies as a credible witness and gave significant weight to her evidence.
Fosbury also pointed out that if he had later been allowed to revisit his statement after hearing the recovered audio, he would have corrected it.
He told the hearing: “If I had been given the chance to amend my statement (after I listened to the audio recording), I would have done so.”
The Panel heard competing expert evidence about the reliability of human memory.
Professor Fiona Gabbert said Fosbury’s recollection that he told PC Corker to turn back could represent an honestly held but inaccurate memory.
She concluded that such an error was “entirely plausible”, with factors including high cognitive load, divided attention and the difficulty of distinguishing between something that had been thought and something actually said.
But another expert, Dr Baljit Rana, raised doubts over whether ordinary memory problems alone explained what had happened.
Dr Rana said the pattern was “more consistent with a selective reconstruction of events.”
However, the Panel was concerned that this opinion appeared to proceed on an incorrect premise about Fosbury’s alleged denials or rejection of evidence and consequently did not give weight to that part of Dr Rana’s opinion.
Instead, it preferred Professor Gabbert’s evidence.
The Panel also examined what Fosbury had actually said during the pursuit.
Just minutes before the fatal collision, at 11.06pm, he was recorded telling PC Corker: “Er, do a u-turn [unintelligible] because there’s a round about at the end where you can do it.”
The Panel considered the similarity between statements Fosbury made during the pursuit and the wording he subsequently included in his accounts.
It also noted that his disputed statement was the only error in an otherwise accurate account.
There was no evidence of collusion between Fosbury and PC Corker and no evidence of a strong relationship between the two officers.
The Panel further noted that Fosbury was inexperienced, the pursuit was his first and he had never previously gone through the formal post-incident procedure.
After considering the evidence, the Panel concluded that it was more likely than not that Fosbury honestly believed his account was truthful and accurate.
It also found that ordinary decent people would not have considered his conduct dishonest in the circumstances.
The allegation of dishonesty was therefore not proven.
The Panel separately rejected the alternative case that Fosbury had been careless or failed to exercise proper diligence.
It noted that he had complied with the post-incident procedure, had taken several hours over his first account and a full day over his second, and had viewed footage multiple times before completing the latter.
That allegation was also not proven.
As a result, the Panel found that neither the Honesty and Integrity nor Duties and Responsibilities Standards of Professional Behaviour had been breached.
