Two police officers who Tasered and pepper-sprayed a 92-year-old amputee in a care home have been found not guilty of assault occasioning actual bodily harm.
PC Stephen Smith, 51, and PC Rachel Comotto, 36, were both cleared of charges relating to Donald Burgess, a single-leg amputee and wheelchair user, after he was restrained at Park Beck care home in St Leonards-on-Sea, East Sussex.
The jury at Southwark Crown Court returned a verdict just hours after being sent out for deliberations by a judge earlier today.
PC Smith has been cleared of two charges relating to the discharge of Pava spray and a baton, while PC Comotto was cleared of a charge related to discharging her Taser.
After the verdict, the IOPC said both officers would face gross misconduct proceedings for potential breaches of the police standards of professional behaviour relating to use of force, and authority, respect and courtesy, with PC Comotto facing a further misconduct allegation relating to comments she later made on social media referring to the incident.
The care home had called 999 after Mr Burgess, a single-leg amputee and wheelchair user, reportedly grabbed a knife he was given to cut his food and threatened to stab staff.
The court previously heard this was ‘out of character’ for Mr Burgess, whose movements with the knife were described by deputy care home manager Donna Gardner as ‘extremely quick’.
‘The reason for his behaviour that day, we now know, is that he was delirious as a result of a urinary tract infection,’ judge Christopher Hehir told jurors.
Mr Burgess was taken to hospital after the incident and later contracted Covid-19. He died 22 days after the incident
PC Stephen Smith, 51, and PC Rachel Comotto, 36, have been cleared at Southwark Crown Court accused of assault occasioning actual bodily harm
Prosecutor Paul Jarvis KC said Mr Burgess was sitting in his wheelchair holding a serrated cutlery knife when the officers entered the room
PC Smith sprayed synthetic Pava pepper spray into Mr Burgess’s face and used his baton to try and knock the knife out of Mr Burgess’s hand, with PC Comotto deploying her Taser, all within a minute and 23 seconds of entering the wheelchair-bound pensioner’s room.
It was alleged that PC Smith had emptied almost an entire full canister of the Pava spray into Mr Burgess’ face – a claim he denied.
Bodycam footage of the incident showed how, at one point, Mr Burgess told officers: ‘I’m dying’. He was then handcuffed in his wheelchair and taken outside.
Later, another officer outside the care home asks if Smith had used a ‘Smithy special’. Smith responded by describing the incident as a ‘stand-off’.
‘Even after spraying he clutched on to it (the knife) to the point where I was going to knock it out of his hands,’ he said. ‘Just a stand-off with him – gave him all the options.’
Speaking to care home manager Steve Cooper shortly after the incident, Comotto says: ‘We don’t like doing that at all, but what can you do?’
Prosecutors say the force used against Mr Burgess – who had been threatening staff with a serrated cutlery knife and telling them he would take pleasure in murdering them – was excessive and unnecessary given his age and physical condition.
Mr Burgess had also poked a staff member in the stomach with the knife.
PC Stephen Smith arriving at Westminster Magistrates’ Court, London – he was today cleared of assault occasioning actual bodily harm
Sussex Police officer PC Rachel Comotto at Southwark Crown Court in London, where she and PC Stephen Smith were found not guilty by jurors
Mr Burgess, who suffered from multiple health conditions including diabetes and carotid artery disease, had been a resident at the home since 2018
In a statement given during a police interview and read to the court by prosecutor Paul Jarvis KC, PC Comotto said: ‘Our objective was clear – it was to disarm Mr Burgess as quickly and safely as possible.
‘I do not believe that my use of the Taser was disproportionate. I believe he posed an immediate and significant risk to himself.’
She denied failing to treat Mr Burgess with tolerance, respect and courtesy.
‘When he asked how many more knives there were, he demonstrated a clear, real-time awareness of the situation,’ she stated.
‘This made his continual refusal to drop the knife all the more concerning for me.’
PC Comotto said she only learned of Mr Burgess’s age after the incident and was ‘very shocked’, saying she thought he was much younger.
‘I treated Mr Burgess with respect and courtesy before and after the force was used,’ she added.
‘I treated Mr Burgess with the utmost respect, even though he tried to stab PC Smith earlier that did not negatively affect my treatment of Mr Burgess.’
Comotto also said: ‘I do not believe in conscience that my use of the taser was disproportionate, excessive or unreasonable – that is my honestly held belief.
‘He had a knife in his right hand in a particularly strong grip which ultimately took the combined efforts of two police officers to remove from his grip.
PC Comotto discharged her Taser during the incident, within 83 seconds of entering the amputee’s room
PC Smith used both his Pava spray and a police baton to try and make Mr Burgess drop the knife he was holding
‘The blade was serrated [and] several inches long.’
She said Mr Burgess refused to ‘relinquish the position of the knife’ which meant ‘using tactical options to disarm him from a distance.’
‘He indicated he would use the knife violently against anyone who stepped into his fighting arc.’
PC Comotto said it was the first time she had discharged her taser in four and a half years, despite being specially trained to use it.
In his statement, PC Smith said he was not aware that Mr Burgess was 92 or that he was a wheelchair user at the time.
He said: ‘I was not aware of these vulnerabilities at the time when I first encountered him, therefore they did not impact my thought process when considering the most appropriate action.
‘At that time I was totally focused on the knife in his right hand.’
The pensioner was taken to hospital after the incident and later contracted Covid.
He was diagnosed with a ‘catheter associated urinary tract infection and delirium’ following the incident.
He died 22 days later aged 93.
IOPC Director Emily Barry said: ‘Our thoughts and sympathies remain with the family of Donald Burgess.
‘We know this case – including the police body-worn footage that was released during the trial – has caused understandable concern in the community.
‘It was right that the evidence was put before a jury so the officers could be held accountable and we respect the jury’s decision.’
This is a breaking news story and is being updated.
