Two recent reports show how some police officers take advantage of victims of domestic abuse. The stories share common themes and fit with my clients’ experiences. This suggests that the problem is widespread, but that it can be readily identified by motivated police officers and, hopefully, prevented.
Metropolitan Police Sergeant Dismissed for Gross Misconduct
On 11 June the Independent Office for Police Conduct confirmed that Police Sergeant Neil Nash, 38, was sacked from the Metropolitan Police Service. In 2015 Nash was the custody sergeant at Plumstead Police Station when a woman was arrested and cautioned for a domestic incident. He obtained her details and went to the woman’s home on numerous occasions. The woman was known to be vulnerable. Despite this the Police Sergeant kissed and attempted to touch her intimately.
The woman complained about PS Nash’s misconduct. On 7 June, the officer was found guilty of gross misconduct and dismissed. Jonathan Green, the Regional Director of the Independent Office for Police Conduct, said,
“Officers are trusted to uphold professional standards of behaviour especially when they come into contact with people who are at their most vulnerable.
“Instead of providing the service expected of a sergeant, PS Nash abused his position of trust, overstepped clear boundaries, and caused psychological harm to this woman.”
A Chief Inspector of Merseyside Police Faces Police Misconduct Panel
The misconduct panel heard that, on 31 March 2011, the Chief Inspector attended a report of a domestic incident and “fondled a domestic violence victim before ‘snogging her’ and groping her breast”. It is also alleged that he returned to the victim’s home address the next day, “without a legitimate policing purpose”.
His conduct is alleged to be in breach of the Standards of Professional Behaviour in respect of Discreditable Conduct. Sanctions for this can include dismissal for gross misconduct. The officer denies the allegations. The hearing continues.
Unscrupulous police officers can take advantage of vulnerable victims of “domestic incidents”. (These can include victims of domestic violence or domestic abuse).
But, as (former) PS Nash’s case shows, internal police Professional Standards Departments take a dim view of this kind of abuse of position for a sexual purpose. This is because it is a form of serious corruption, which is defined as:
“Any behaviour by a police officer or police staff member, whether on or off duty, that takes advantage of their position as a member of the police service to misuse their position, authority or powers in order to pursue a sexual or improper emotional relationship with any member of the public. This includes: committing a sexual act, initiating sexual contact with, or responding to any perceived sexually motivated behaviour from another person; entering into any communication that could be perceived as sexually motivated or lewd; or for any other sexual purpose.”
And the cases described above highlight another pattern which came out in that report: police officers abusing vulnerable victims of domestic abuse.
HMICFRS said that 40% of allegations involved vulnerable victims of crime, and that 39% of accusations of police abuse of position for sexual gain involved victims of domestic abuse.
This shocking statistic may be under-reported. As the 2017 report noted, between 1 December 2013 and 30 November 2014 only 33 officers had been dismissed after having a relationship with a vulnerable person.
This “apparent disconnect” between the number of alleged cases and disciplinary action suggests that some of these predators are still serving, giving them the opportunity to repeat their misconduct.
Common Theme in Domestic Violence Cases
I currently represent, and have previously represented, women across the country who have suffered similar experiences to the two described above. Their stories follow a familiar pattern:
The (female) victim reports a domestic incident. This is usually an incident of domestic violence or a pattern of abuse. She is considered a vulnerable person because of her circumstances.
A (male) police officer attends on his victim at home, strikes up a friendly relationship, and shares contact details.
The officer makes repeated contact, by personal visit, text message, phone calls. These communications become more friendly/ flirty. Often the victim is flattered by the interest from a police officer, someone she holds in high esteem, is attentive, and makes her feel safe.
The police officer makes a sexual advance. In many cases it is unwanted and immediately declined. But, if not immediately rebuffed, he pursues a sexual relationship.
The victim recognises, either immediately or shortly afterwards, that the police officer’s conduct is inappropriate. She reports it and makes a police complaint.
The victim assists the police’s Professional Standards Department with their enquiries by providing evidence, statements, and even evidence at a hearing. This adds to her feelings of stress, guilt, and shame. In some cases, the police abuse leads to long-term psychological damage. It cannot be rationalised or explained away by telling the victim she is not to blame, and that the male officer is the one who abused his position by targeting a vulnerable woman.
While individual circumstances vary, the common theme of a vulnerable victim being abused by a sexual predator is ever-present.
Two out of every five reported incidents of police abuse of position for a sexual purpose involve vulnerable victims of domestic incidents. There may be many more.
Sadly, this is an entirely preventable problem which affects countless victims and undermines public confidence in the police. But this type of serious corruption often follows predictable patterns. Fellow officers and internal police force investigators need to be aware of them to prevent misconduct by the abusers in uniform.
Since writing that piece Donoghue Solicitors has been contacted by people who have been wrongly convicted using false positive drug test evidence. I recently spoke with one such client, John (name changed). We now represent him in his pursuit of justice.
Consequences of a False Positive Drug Test
In December 2016 John was pulled over by the police while driving. During the stop the police told him they wanted to perform a roadside drug test. John agreed as he had nothing to hide. To his shock, the result was positive for cannabis in his system.
Despite his protests, John was arrested for “drug driving” and escorted to a local police station. The police took a blood sample and bailed him, pending the outcome of a forensic drug test.
As required, John returned to the police station in February 2017. He was sure the test results would be negative. But the blood test report, provided by Randox Testing Services, came back with a (false) positive result for cannabis, recording a high rating of 5.5. This was over twice the legal limit.
The police charged John with drug driving. He was bailed to appear at his local magistrates’ court in February 2017. At court John discussed the matter with the duty solicitor. Even though he was sure the Randox Testing Services toxicology report was incorrect, the evidence was backed by science and bound to be accepted by the court.
He pleaded guilty and was convicted for “driving a vehicle when the proportion of a controlled drug exceeded the specified limit”. John got a 12 month ban, and was ordered to pay a £300 fine, victim surcharge, and costs. His local newspaper also published details of the case.
Effects of a Drug Driving Conviction
The conviction had a devastating impact on John’s life. He had no previous convictions and was upset and embarrassed by the stain on his character. The newspaper report meant that his family, friends, and local community knew what had happened. He felt guilty about letting everyone down.
The financial impact of the drug driving conviction was huge. John lost his job as an IT support professional because of it. Before his arrest, John’s well-paid role meant he had responsibility for IT systems in area schools. The job was demanding in terms of work, but also character, as only the most trusted professionals with clean records could do on-site school visits. When his company found out about the positive drug test they stopped him making on-site calls. He relied on his car to get to and from work and other jobs while waiting for his court date. But, after his driving ban, John’s employers felt that they had no alternative but to let him go.
Understandably, all this became too much for John. He felt helpless. He was depressed and frustrated at his circumstances and the loss of independence.
Setting Aside the Conviction
In February 2018, John’s duty solicitors contacted him out of the blue.
They said that the Crown Prosecution Service had been in touch and that John’s original sample of blood had been re-tested returning a result which was below the legal limit.
John’s criminal solicitors applied to the court to re-open the case on the basis that the prosecution relied on unsafe evidence, namely the false positive drug test. The magistrates accepted this argument and the CPS immediately withdrew the charge. This meant that John’s conviction and sentence had been set aside.
But by this time John had completed his 12-month ban and experienced significant personal and professional losses. Understandably, he felt wronged by what had happened. He contacted my firm after seeing that we are solicitors who help people who have suffered miscarriages of justice due to the Randox Testing Services scandal.
We are now working with John to help him get his life back on track. After everything he’s been through, justice and compensation from those responsible is the least he deserves.
Recently, a criminal defence solicitor called me about a potential new client. (I regularly receive referrals from criminal lawyers as I specialise in actions against the police.) The solicitor told me her client was caught up in the Randox Testing Services scandal.
I researched the matter. What I found out was shocking.
The solicitor told me that her client had been convicted of drug-driving. The prosecution relied on a forensic toxicology report from Randox Testing Services (RTS).
Randox is a private company which provided forensics tests. It is in the middle of “the biggest forensic science scandal in the UK for decades”. Last month, Nick Hurd, the Minister of State for Policing and the Fire Service, updated Parliament on the ongoing criminal investigation into the company’s activities.
He confirmed that, in January 2017, Randox Testing Services reported to Greater Manchester Police that “there may have been manipulation of test results at their laboratories”. He continued, “The alleged manipulation raises doubts about the reliability of some test results, which may have been subsequently relied on in court proceedings (criminal, coroners and family).”
The Government Minister confirmed that “Most drug tests from RTS between 2013 and 2017 are being treated as potentially unreliable.” More than 10,000 cases have been identified. It is expected to take up to three years to retest the evidence.
The company also gave reports to parties in civil cases such as family law matters to:
– local authorities dealing with child protection decisions
– private employers for drug and alcohol testing.
Another company, Trimega Laboratories, carried out similar forensic tests between 2010-2014. The government considers those “potentially unreliable” too. But it does not know how many people might have been affected by similar, unreliable, reports. This is because of the time elapsed and poor record-keeping.
What Did Randox Do Wrong?
A positive result in a sample showed that the tested drug was present, but
Reports about the amount of drugs in the sample could be inaccurate because the comparison data was manipulated.
A liquid sample is taken from a suspect and analysed for the presence of an illegal substance.
To verify that the testing system is functioning correctly, a Quality Control material with a known amount of the illegal substance is tested in parallel. This ensures that the system is delivering accurate results.
If a sample tested positive then the drug was present to some degree in the sample.
The Quality Control materials are used to ensure that the positive results reported are within an acceptable 20% variance.
If the Quality Control value is not within this variance then the results cannot be used in court.
The analysts were manipulating the Quality Control data and because of this RTS cannot confidently state (before further testing) that the samples tested in runs where the controls were manipulated, fell within this 20% variance.
Regardless of whether the Quality Control fell inside or outside this variance, any positive samples in the run contained the drug.
Neither the Samples, nor the Quality Control materials themselves have been interfered with.
Having discovered this “data manipulation” we immediately reported this to the Forensic Regulator, UKAS and the NPCC and have worked very closely with all authorities to resolve the issue.
Can the Randox Samples Be Retested?
Randox says, the samples taken from those affected were not interfered with by the rogue staff members. This means that they could be re-tested using accurate quality control data. Those involved “are prioritising the most serious and pressing cases but all cases where there could have been an impact on prosecution will be assessed, retested and appropriate action taken.”
But, as the National Police Chiefs Council (NPCC) points out, retesting might not always be possible. 10% of samples are no longer held, cannot be retested or relied upon. The NPCC says that in those cases “a full disclosure pack will be created and passed to the CPS for review and to determine appropriate action.” The difficulty for the CPS will be determining how crucial the forensic test results were in securing convictions or increasing sentences.
The Crown Prosecution Service is seeking adjournments in ongoing cases where it is relying on Randox testing reports.
Why Do These Forensic Tests Matter in Court Proceedings?
Randox Testing Services was a well-respected company which contracted with most of our police forces. A positive toxicology report from it could be crucial in securing convictions. Prosecutors and jurors alike put great faith in the science, especially in serious criminal cases. A desire to see “justice” done can influence the dispassionate analysis of evidence.
Some people who have been convicted in cases involving Randox reports are bringing legal challenges. Two men who were jailed for years after drug-driving convictions are taking action in the Court of Appeal. Both will seek to have their convictions quashed on the basis that the forensic evidence was unreliable.
They are not alone. Billal Hartford has already had his wrongful conviction for drug-driving overturned after the court agreed that Randox Testing Services’ report was inaccurate. And, the BBC reports, around 50 other drug-driving prosecutions have been dropped because the original test results may have been manipulated.
Is Randox Testing Services Liable to Pay Compensation?
Randox Testing Services says that it has “no idea” why its employees manipulated the data. The company describes their behaviour as “incomprehensible and bizarre”, because it took more effort to execute the “data manipulation”. The company says:
“We regret the impact of this, and the subsequent hassle and upset it has caused.”
While this is helpful, it does not necessarily absolve the company of blame. The courts expect a lot of expert witnesses, particularly those providing forensic evidence. This is because of the potential for miscarriages of justice mentioned above.
“But a high degree of responsibility is entrusted to expert witnesses in family cases. Erroneous expert evidence may lead to the gravest miscarriage of justice imaginable – the wrongful removal of children from their families.”
Trimega was ordered to pay legal costs in that case, and again in a later case, due to its inaccurate reporting.
So far, re-tests on samples involved in sexual offence cases, violence or homicide have showed no change.
The retesting process will take years. If Randox’s erroneous reporting directly resulted in wrongful convictions it is possible that claims in negligence could be made. A Claimant must meet three tests to prove negligence:
The tortfeasor (Randox Testing Services) owes the Claimant (wrongfully convicted person) a duty of care
Randox failed in that duty
The Claimant suffered a loss.
Looking at these in turn:
There are strong arguments to show a duty of care, despite there being no direct relationship between the Claimant and Randox. Depending on the circumstances, the effect of the forensic report may have led to a conviction or more serious penalty. As Mr Justice Baker said, the courts hold experts to a high standard. Costs orders are made against them when they fail to live up to those standards. And, in these cases, the Defendant would be the company, not the individual (rogue) scientists.
Producing inaccurate reports, no matter the reason, is a clear failure of the company’s duty. The company may argue that it is not responsible as, it would say, the rogue staff members were acting outside of their duties. There are strong arguments against that view.
A wrongful conviction could lead to compensation for various losses, including:
A claim in negligence could be made against Randox provided all these elements are present. But, as I said earlier, every case is unique, and Randox Testing Services would, no doubt, fight any such claims.
Even if it’s possible to bring a claim, that does not mean it will succeed.
Are the Police Responsible for Randox’s Failings?
It’s possible that the police forces which contracted with Randox are also responsible. This is because of a combination of common law and statutory obligations. Claims could include arguments based on:
The legal principle of vicarious liability.
Breach of the Data Protection Act 1998, in particular, the Schedule 1 Principle requirements that “Personal data shall be accurate and, where necessary, kept up to date” and “Appropriate technical and organisational measures shall be taken against unauthorised or unlawful processing of personal data and against accidental loss or destruction of, or damage to, personal data.”
Breaches of the Human Rights Act (1998). The Act gave effect to the European Convention on Human Rights. Claimants could argue breaches of Articles 5 (liberty and security), 6 (right to a fair trial), 8 (privacy), among others.
I expect that police forces would fight any claims based on flawed Randox Testing evidence. Some forces seem to operate a “fight every claim” policy. There’s no reason to think they would behave differently given the potential scale of miscarriages of justice.
But the police have another problem.
Government Minister Nick Hurd told Parliament that in January 2017 Randox Testing Services reported its concerns about data manipulation to Greater Manchester Police. Randox’s accreditation was pulled on 21 March. I don’t know if the company continued to provide reports before then. It is likely that they did because they contracted with most of the police forces in England and Wales.
So now Chief Constables of the police forces involved might be asked: what did you know, and when?
The CPS says that it will seek adjournments of ongoing cases so samples can be retested. But what about those cases where people were convicted on Randox forensic evidence between January and March 2017? What did the police and/or CPS do when they became aware of the problems at Randox Testing Services?
What About Claims Against Trimega Laboratories?
Trimega Laboratories also provided “potentially unreliable” forensic reports. But the situation at Trimega Laboratories Limited is even more complicated. Timega is in liquidation. Any potential claim would involve restoring it to the Companies register. And, as Nick Hurd pointed out, it may never be possible to identify all those affected by the data manipulation because of poor record-keeping. Even if they could be found, the Minister said:
Samples from Trimega cannot be retested, because of the extremely limited chain of custody records and the natural degradation over time of any remaining original samples.
Sadly, it may be impossible to prove that Trimega Laboratories was responsible for inaccurate reports for one, or both, of these factors.
Am I Out of Time to Claim Against Randox or Trimega?
Trimega produced potentially inaccurate reports as far back as 2010. Randox reports from 2013 are also suspect. This means that it may be too late to bring claims for some/ all heads of claim outlined above without court approval. Read more about time limits in these claims here.
How Can I Claim Against Randox or Trimega?
Do you think Randox or Trimega produced inaccurate forensic evidence in your case? Was that evidence used to secure your conviction (including if you pleaded guilty to an offence)? If so, these are the steps you could take:
Contact the solicitors who dealt with your criminal defence. Ask them to review your file to find out if Randox or Trimega produced a forensic report in your case. Don’t delay! Most of the time, solicitors can destroy files six years after closure. Contact us if you would prefer to use a different criminal defence solicitor. We can put you in touch with someone who specialises in criminal court appeals.
Your criminal solicitors should be able to find out if your sample can be retested. Depending on the circumstances, you may be able to get your conviction set aside.
If you are successful, we can review your case with you and your criminal solicitors. Where appropriate, we can help you claim compensation on a “no win no fee” basis.
A final thought: those in the criminal justice system trusted Randox Testing Services and Trimega Laboratories to provide accurate, incontrovertible evidence. The companies failed in their task, leading to potential miscarriages of justice with devastating consequences. I trust Randox, the government, and police will act with all due haste to identify cases based on unsafe evidence. And I invite those involved to take a sensible approach to paying compensation. The victims of these scandals have suffered enough.
Donoghue Solicitors is proud to give you a pre-launch preview of our new website today.
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