A police constable has kept her job despite being found guilty of gross misconduct for using excessive force when she repeatedly hit an ex-footballer with her baton after he was Tasered to the ground.
An independent tribunal found that Mary Ellen Bettley-Smith, a West Mercia Police officer, acted wrongly when she struck Dalian Atkinson three times with her police-issue baton in the early hours of 15 August 2016, after which the former sportsman died.
The panel could have sacked Bettley-Smith without notice but instead handed her a final written warning.
Former Aston Villa striker Mr Atkinson died after being kicked at least twice in the head by Ms Bettley-Smith’s more experienced colleague, PC Benjamin Monk, outside the victim’s father’s home in Telford, Shropshire, six-and-a-half years ago.
Monk was jailed for eight years in 2021 after his conviction at Birmingham Crown Court for manslaughter.
After Mr Atkinson was Tasered to the ground and kicked in the head by Monk, Ms Bettley-Smith used her baton on him, claiming she “perceived” he was trying to get up, although several civilian witnesses recalled the 48-year-old was not moving and “was not resistant”.
Ms Bettley-Smith, 33 – known as Ellie – was cleared of assaulting Mr Atkinson after a trial last year, but the Independent Office for Police Conduct (IOPC) found there was a gross misconduct disciplinary case to answer for her use of force.
The retired footballer, who also played for Sheffield Wednesday and Ipswich Town, was rushed to hospital following the attack but died after suffering a cardiac arrest.
Police sent a written apology to his family in 2021.
While the misconduct tribunal found three initial strikes – before Monk’s kicks – were lawful, it found her decision to then hit Mr Atkinson another three times, after police back-up arrived, were “unnecessary, disproportionate and unreasonable in all the circumstances and therefore unlawful”.
She had told her trial in September that she had been sure she would have come to serious harm if Mr Atkinson had managed to get to his feet.
Delivering the tribunal’s findings, chairman Karimulla Khan said: “In those circumstances, the panel finds the first three baton strikes were lawful.
“There was then the intervening kick, by Pc (Ben) Monk, at which point, Pc Bettley-Smith then applied a second set of three baton strikes – the second set of three baton strikes, in light of the kicks.
“And the panel finds that the second set of three baton strikes were unnecessary, disproportionate and unreasonable in all the circumstances and were therefore unlawful.”
Following the panel’s findings, barrister Dijen Basu KC, putting the case against Pc Bettley-Smith, said: “The conduct is indeed serious but the circumstances were complex, fast-moving, and the panel have looked at the context of the decisions and actions of the officer.
“She was plainly on the periphery of the actions taken by Pc Monk, which were entirely different, several stages of magnitude different.
“The panel may wish to consider a final written warning (as its sanction) as well as dismissal.”
Mr Basu said West Mercia’s Police’s deputy chief constable had instructed that the panel be asked to consider the lesser sanction, as well as dismissal without notice.
Patrick Gibbs KC, acting for Pc Bettley-Smith, said: “The six-and-a-half years… must be a significant punishment in itself and there will have been a long time of reflection for what happened on that night.”
He said the conduct of Pc Bettley-Smith, a University of Hull graduate originally from Staffordshire, “had, until that moment, been admirable, certainly unimpeachable conduct” and that her unlawful baton strikes had occurred in the space of a 27-second period, following which she had again presented “admirable conduct”.
“This involves a miscalculation in the heat of the moment in the degree of force which still now needed to be used,” he added.