Two police officers who used a Taser and synthetic pepper spray on a one-legged 92-year-old man have been cleared of assault.
Pc Stephen Smith, 51, and Pc Rachel Comotto, 36, were accused of using excessive force on Donald Burgess during a confrontation at Park Beck care home in St Leonards-on-Sea, East Sussex, in June 2022.
Jurors returned their unanimous verdicts on both Sussex Police officers at Southwark Crown Court after around two hours of deliberations on Wednesday.
They found Smith not guilty of two counts of assault occasioning actual bodily harm for his use of Pava spray and for using a baton, whilst Comotto was found not guilty of one count for deploying her Taser.
Both officers will however face proceedings for gross misconduct, Assistant Chief Constable Paul Court, from Sussex Police, said in a statement he delivered outside court.
He said: “I would like to acknowledge how incredibly difficult this period must have been for Mr Burgess’s family and I offer them my sincere condolences.
“I recognise and understand the impact that this case has had on public confidence.
“It is with profound regret this happened.
“Police officers can find themselves in challenging and unpredictable situations where they must make split-second decisions to keep the public safe, and to do so with measure, compassion and skill.
“We support them to do this and this is what our communities expect.
“Use of force must be reasonable, necessary and proportionate and officers know they will be held accountable every time.
“The officers in this case have been held accountable to a criminal threshold and we respect the jury’s decision.
“While this concludes the criminal investigation, both officers will now face gross misconduct proceedings.”
The Independent Office for Police Conduct (IOPC) said that both officers should face a gross misconduct hearing 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 made on social media after the incident.
The watchdog said it would liaise with Sussex Police about the misconduct hearings now that criminal proceedings are over.
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.”
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.
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 Comotto deploying her Taser, all within a minute and 23 seconds of entering the wheelchair-bound pensioner’s room.
Mr Burgess was taken to hospital after the incident and later contracted Covid.
He died 22 days later aged 93.
Care home manager Steve Cooper previously told jurors Burgess had been threatening staff for more than 30 minutes with a serrated knife before they decided to call 999.
“He was very aggressive and threatening to hurt my members of staff,” he told the court.
“We tried to use different de-escalation techniques. He wasn’t responding to anything we said.
“He had a look in his eyes I’ve never seen before – he wasn’t the Donald I knew.”
He said Mr Burgess jabbed the knife towards him and told him: “I’m going to murder you, and I’ll enjoy it.”
The court heard both Smith and Comotto repeatedly asked Mr Burgess to drop the knife, with Smith warning him: “Put the knife down mate, or you will be sprayed or tasered. That’s up to you.”
Footage from body-worn cameras played to the jury during the trial showed Smith then discharging the spray directly into Mr Burgess’s face.
Mr Burgess then raised the knife a couple of times as Smith uses his baton to try and get the knife out of his hand.
When this failed, Comotto deployed her Taser.
Pc Smith previously told jurors he did not see that Mr Burgess was disabled and using a wheelchair until after the incident as he was focused on the knife the pensioner was holding in his hand.
He added he believed Mr Burgess “could clearly understand what we were saying to him” as Mr Burgess reportedly asked “Are there many more of them coming?” – suggesting he was aware Smith and Comotto were police officers.
During his evidence, Pc Smith also denied hitting Mr Burgess with a baton, claiming he instead flicked the baton towards the pensioner’s wrist to “knock the knife out” of his hand.
Smith said: “The way he had been threatening staff members – the threat was the knife, to the staff there and also to himself.
“I just wanted the knife out of the gent’s hand.”
During her evidence, Pc Comotto said she believed using the Taser was the safest way to “protect” Mr Burgess as she feared her colleague using the baton again would cause more harm.
She added she knew from her training the risk of injury to Mr Burgess was higher with a baton than with a Taser.
She said: “It was proportionate because other tactics had failed. If I didn’t act, something worse could happen.”
“I’m not a trigger-happy officer,” she added. “It’s the first time I’ve fired my Taser.”
