Who Polices the Police?

Photo of Daniel Fitzsimmons, a Chartered Legal Executive who discusses who polices the police

Daniel Fitzsimmons, Chartered Legal Executive, discusses who polices the police in this blog post.

By Daniel Fitzsimmons, Chartered Legal Executive

At first glance, these three police officers have little in common:

  • PC Benjamin Monk, who killed Dalian Atkinson
  • PC Wayne Couzens, who killed Sarah Everard
  • Sergeant Melvin Dawson, who allegedly assaulted my client.

But dig deeper and you’ll find that their cases highlight an important issue: despite what the police want you to think, misconduct investigations often fail to “police the police”.

Thankfully, there is an alternative system in place to help people get justice for police misconduct. Read on to find out:

  1. why police misconduct and disciplinary proceedings fail
  2. why we need an alternative
  3. what you should know about it.

PC Benjamin Monk (and his victim Dalian Atkinson)

Until very recently, PC Benjamin Monk was a West Mercia Police officer.

On 23 June he was sentenced to eight years in prison for the manslaughter of Dalian Atkinson, the former Aston Villa, Ipswich Town, and Sheffield Wednesday football player.

Before unlawfully killing Mr Atkinson, PC Monk (it appears, dishonestly) withheld details of cautions for theft and drunkenness.

Cautions are formal warnings given by the police to adults. They are admissions of guilt and must be disclosed by the person receiving them if they seek work in “notifiable occupations”, such as the police.

But Benjamin Monk failed to disclose his cautions when applying to become a police officer.

(The caution for theft would have been especially problematic because theft is an honesty offence. It probably would have prevented Monk from getting a job as a police officer.)

Mr Monk got lucky. West Mercia Police’s vetting procedures did not pick up the cautions, even though they are required to be recorded on the Police National Computer used by the force.

Nine years later the officer’s failure to disclose his cautions came to light. By this time, PC Monk was a member of an elite force operations support team and armed with a Taser.

In 2011 he faced a disciplinary misconduct panel which found that the serving officer had:

breached the required standards for honesty and integrity by not disclosing the offences.

The finding proved that he could not be trusted twice. He:

  1. committed the theft offence which resulted in a police caution
  2. failed to disclose both cautions when applying to the police.

But instead of dismissing PC Monk, the panel issued a final written warning and allowed him to keep his job.

Unlawful Killing of Dalian Atkinson by a West Mercia Police Officer

On 15 August 2016 PC Monk fatally assaulted Dalian Atkinson with a Taser for 33 excruciating seconds, six times longer than the standard procedure.

The (then) West Mercia Police officer then kicked Mr Atkinson twice in the head. The assaults were so hard that Monk’s shoelaces left marks in his victim’s head.

Tragically, Dalian Atkinson died from his injuries.

On 9 July, PC Monk was dismissed from the force. At his police misconduct hearing, Chief Constable Anthony Bangham said:

Given that PC Monk is now a serving prisoner, having been sentenced to a term of imprisonment of eight years, the only outcome is therefore dismissal without notice.

But, as West Mercia Police reported,

The outcome of the misconduct hearing is subject to the normal appeals process.

(As a side note, the force’s press release is misleading. It suggests that officers on the Barred List are prevented from serving in the police:

PC Monk will also be placed on the College of Policing Barred List and will not be employable within the UK Police Service.

But, as Kevin Donoghue points out in this blog post: What You Should Know About the Police Barred List, former police officers and other police staff can get their details removed in certain circumstances. Then they can be re-employed by the police if they satisfy other vetting procedures.  In Monk’s case, serving in future is very unlikely, but not impossible as stated by West Mercia Police.)

PC Wayne Couzens (and his victim Sarah Everard)

On 3 March 2021, this (now former) Metropolitan Police officer kidnapped, raped, and murdered Sarah Everard.

Just like PC Monk, he was allowed to continue serving in the police despite allegations of misconduct. The officer was accused of indecent exposure in 2015 in Kent, and February 2021 in London.

The Independent Office for Police Conduct is reviewing the police’s investigations and other matters relating to Sarah Everard’s case.

So far, it has issued 12 gross misconduct or misconduct notices.

Two of the notices relate to Metropolitan Police Service officers who are being investigated for:

failures to investigate two allegations of indecent exposure linked to PC Couzens in London in February 2021.

Sergeant Melvin Dawson (and his victim, my client)

This North Wales Police sergeant was accused of using force which was not “necessary, proportionate or reasonable in all the circumstances” against 15 detainees during 2018 and 2019.

A police disciplinary and misconduct panel heard that he was:

“quick on the draw” in spraying people, seemingly to punish them for being disruptive in their cells.

It was also alleged that Sergeant Dawson:

used Captor spray “closer than the minimum recommended distance, and from behind locked cell doors” on several occasions.

To back up these claims, the panel considered:

  • CCTV video and audio footage
  • live witness evidence (including from my client)
  • a Professional Standards Department report.

Despite the weight of evidence, the police misconduct panel found that Sergeant Dawson wrongly used PAVA captor spray (commonly known as “pepper spray”) in just one case.

He kept his job despite this finding of misconduct. Instead, the misconduct panel issued a written warning.

Why Police Misconduct Investigations Fail

All three police officers kept their jobs following:

  • reports and/ or
  • investigations and/ or
  • proven findings

about their misconduct.

Questions must be asked about why.

But even getting to the point where a misconduct hearing takes place is unusual.

This is because disciplinary misconduct panels hear cases against police officers only if considered necessary and justified by the police themselves.

In most cases, police officers are investigated by their own colleagues at “in-house” Professional Standards Departments. Police officer investigators:

  • handle reports of alleged misconduct
  • conduct investigations
  • prepare reports and make sanction recommendations.

This happens even in high profile cases. As the IOPC noted in the Sarah Everard case:

A total of nine other conduct referrals in relation to PC Couzens were made to us by the MPS which, following assessment, were sent back for local investigation by the force. Two of these were in relation to the kidnap, murder and rape of Sarah Everard and another concerned allegations of indecent exposure. As these matters are subject to investigation by the MPS it would be inappropriate for us to provide further details.

(My emphasis)

Professional Standards officers are supposed to “police the police”. Investigators are meant to be separate from other serving officers. But they may know the officers and police staff personally, especially in smaller forces.

Ask yourself, how can they be impartial?

It gets worse. Even if the investigating officers refer their fellow officers to disciplinary panels, those hearings are not what you might expect.

As the College of Policing’s guidance on outcomes in police misconduct proceedings says, police misconduct disciplinary panel hearings are:

not designed to punish police officers.

Instead, they are employment proceedings rather than formal legal proceedings. This means that:

  1. panels hearing these cases are small. As Kevin Donoghue explains here, they are usually made up of only three people, and one of them is usually a senior police officer from the same force as the officer accused of misconduct
  2. the rules of evidence do not apply, and misconduct panels have wide discretion on how to deal with matters. For example, witnesses are rarely called, as disciplinary panels usually prefer to consider written evidence provided in Professional Standards Department reports.

How police misconduct disciplinary panels deal with witnesses

In my client’s case, she was called to give evidence before the misconduct panel convened to hear Sergeant Dawson’s case. This put her in the same room as her alleged attacker.

She bravely put herself in this stressful position to help North Wales Police hold Dawson to account, and I arranged for a colleague to attend with her.

My client expected questions about her experience. The panel was there to consider Sergeant Dawson’s alleged misconduct after all.

But instead, she says that the panel asked only why she had legal representation at the misconduct hearing.

In my client’s opinion, the panel avoided hearing negative things about Sergeant Dawson because they did not want to give him a harsher sanction.

Sure enough, the officer kept his job.

My client thinks that the written warning was little more than a “slap on the wrist”. She still cannot believe that the panel, which, it should be noted, included a senior officer from North Wales Police, found in favour of Sergeant Dawson in all but one incident, including her own case.

So, who really polices the police?

As these, and many other cases show, the police disciplinary and misconduct process is failing victims. In my nearly 15 years’ experience as a lawyer who helps people bring civil actions against the police, I have found that they are usually a waste of time.

But if the police cannot be trusted to police themselves, who can?

That is where lawyers like me and my colleagues come in. We hold the police to account when others fail to do so by fearlessly representing victims of police misconduct in civil court proceedings.

My client is recovering from Sergeant Dawson’s alleged assault. But she has suffered lasting physical and psychological personal injuries. If anything, the misconduct proceedings have given her more motivation to fight for justice in a civil action against the police.

By bringing civil claims, we aim to put clients in the pre-incident position. Courts cannot turn back time; but they can award compensation. In some cases, we also help our clients get:

  • formal written apologies
  • promises that lessons will be learned
  • other things.

(Find out more on this page: Remedies in Claims Against the Police.)

But the system is not perfect. For example:

  • as agents of the State police forces have (virtually) unlimited resources, unlike their victims
  • many judges and juries are pro-police, which can tip the scales in their favour
  • police forces, officers, and their lawyers use delaying and other tactics to undermine claims.

Despite these issues, as our case reports show, people can get justice in the civil courts when criminal and misconduct proceedings against officers fail.

We need them to.

We all benefit when brave victims of police misconduct stand up and fight for their rights. Because without them, no one polices the police.

Daniel Fitzsimmons is a Chartered Legal Executive at Donoghue Solicitors. Read more about him here.

What You Should Know About the Police Barred List

 

Photo of Solicitor Kevin Donoghue, who explains what to know about the police barred list.

Kevin Donoghue, solicitor, explains how the police barred list works and what you should know about it.

By Kevin Donoghue, solicitor

When police officers are dismissed for gross misconduct their victims often express relief. They think that the officers will:

  1. never serve in the police again
  2. have their details added to a publicly-searchable barred list to protect others.

But, in many cases, neither of these things are true. Here I show that there are ways for disgraced former officers to:

  1. avoid getting their details added to the barred list (or associated advisory list), or
  2. to get off the lists and back into policing.

What is the police barred list?

The barred list came into effect under The Police Barred list and Police Advisory list Regulations (2017).

The list shows:

people who have been dismissed from policing through the Police Conduct and Performance Regulations.

The following people can have their details added to the Barred list:

  • police officers
  • special constables
  • police community support officers
  • police staff.

Once added, they are not eligible for employment by:

  • police forces in England and Wales
  • offices of Police and Crime Commissioners
  • Her Majesty’s Inspectorate of Constabularies and Fire & Rescue Services
  • the Independent Office for Police Conduct.

Who is responsible for the barred list?

The barred list is maintained by the College of Policing, which describes itself as:

a professional body for everyone working across policing. It is an operationally independent arm’s-length body of the Home Office.

As well as the barred list, the College of Policing also maintains an advisory list.

What is the Police Advisory List?

The police advisory list is just as important as the barred list. It is:

a list of all officers, special constables and staff members who have resigned or retired during an investigation or who leave before an allegation comes to light. It also includes designated volunteers who have had their designated status withdrawn because of conduct or performance matters.

Section 88I of the Policing and Crime Act 2017 allows for:

  • police officers
  • special constables
  • community support or policing support volunteers
  • civilian employees

to have their details added to the advisory list.

What you should know about the barred and advisory lists

1. The barred list

You can search the public barred list here. But you might be wasting your time because there are many exceptions.

It is important to note that the Regulations only apply if police force members are dismissed after an investigation under the Police (Conduct) Regulations 2012 or Police (Performance) Regulations 2012.

And the public barred list:

  • only includes police officers and special constables
  • does not include PCSOs or police staff
  • holds information on the public list for five years only
  • is updated monthly, with names added by the end of the following month after dismissal
  • has exemptions for “national security, ongoing investigations and any significant harm which may be caused to the individual or others.”

These exceptions mean that the College of Policing’s “Search the barred list” website page is lacking, perhaps on purpose:

Screenshot of the Search the Barred List page.

The College of Policing’s Search the Barred List page lacks context.

2. The advisory list

The barred list is incomplete, but at least we can see it.

The advisory list is private, with no public access.

This means that former police staff can avoid having their details made public by resigning or retiring at any time before disciplinary proceedings are brought or concluded.

Misconduct proceedings take time to investigate, prepare, and deal with. I have represented clients in civil actions against the police for over 20 years. In my experience, officers frequently quit before disciplinary and misconduct hearings. That way they avoid appearing on the publicly-searchable barred list.

3. Both lists

Former police officers who are dismissed after a misconduct hearing can ask for anonymity when their details are added to the lists.

As this report in The Guardian shows, an officer who was found guilty of gross misconduct for racist comments:

would have been dismissed had he not resigned from the force.

The officer did not bother to attend the hearing. Instead, he:

instructed his Police Federation representative, Moray Anderson, to say the proceedings infringed his right to a private life under article eight of the Human Rights Act.

Anderson asked for Sgt X not to be named on the barred list to avoid the “public shame” this would lead to.

The Disciplinary Panel was swayed despite its serious finding and the former officer’s apparent contempt for the proceedings. Sergeant X was granted anonymity and his details will be kept private by the College of Policing.

4. Removal from the barred and advisory lists

This can happen in three ways:

a)     Automatic removal from the barred list

Regulation 8 of The Police Barred list and Police Advisory list Regulations 2017 says that certain people must have their details removed from the barred list automatically if:

  1. the person on the barred list was dismissed and had their details added to the list for “unsatisfactory performance (not amounting to gross incompetence) or unsatisfactory attendance”, and
  2. they were on the list for at least 12 months, or
  3. they die.

b)     Automatic removal of details from the advisory list

Former officers who resigned or retired before dismissal will get their details removed automatically from the advisory list if:

  1. their details were added for issues other than conduct, and
  2. they were on the list for at least five years, or
  3. they die.

c)     Discretionary removal of details from the barred and advisory lists

Former officers, special constables, PCSOs,  and police staff can apply to the College of Policing to have their names removed from the barred list after:

  • three years for performance matters
  • five years for conduct matters.

(The time period is five years for those on the advisory list.)

The removal process is flawed because the College of Policing:

will not review the reasons for the original dismissal, and will only consider whether it is proportionate for the individual to remain on the barred list. 

Instead, the College of Policing says the process involves:

taking into account a number of factors, including:

  • whether the individual has demonstrated their suitability to return to policing
  • the circumstances which led to the original decision/finding
  • the impact removing an individual’s barred status might have on public confidence in the police.

Barred and advisory list confusion

Perhaps understandably, some journalists reporting on policing issues do not seem to know how the barred and advisory lists work. Neither do the police, which is less forgivable.

For example, as this news report wrongly says:

A former West Midlands Police worker who was convicted of conspiring to supply drugs while off duty will never work in policing again, the force has said.

In that case Cherelle Ying, a former West Midlands Police officer, was convicted of conspiring to supply drugs. She resigned before being fired for gross misconduct. Her details were added to “a barred list” (which was probably the advisory list). The article’s writer said:

West Midlands Police confirmed she has also been placed on a barred list – meaning she will be unable to work in policing again.

I expect the reporter was quoting West Midlands Police’s own write-up, which says:

Ying resigned from the force in February this year ahead of a disciplinary panel on 8 April which found that Ying’s action amounted to gross misconduct and, had she not resigned, she would have been dismissed. She has also been placed on a barred list meaning she will be unable to work in policing again.

(my emphasis)

While it is very unlikely that Ms Ying will be re-admitted to the police, it is not an absolute as stated above. She could get back in if she can convince the College of Policing review panel and pass force vetting procedures.

Consequences for the public

These days, most companies conduct due diligence before hiring former police and staff. This includes internet searches. But they only work if the applicant’s misdeeds are published online.

Some police officers and staff get anonymity in disciplinary and misconduct hearings. And the failings of the barred and advisory lists mean that they can easily avoid negative publicity. Their reputations and employment prospects are unharmed.

Contrast that with people whose details are added to the Disclosure and Barring Service. As our clients Lisa McCullough and James Williams found, even the threat of being added to the DBS check list was frightening because it could end their careers in disgrace.

Eventually, some former officers and staff will get another police job. The government is committed to hiring 20,000 new officers by 2023. Recruiting is hard. Forces are under pressure to meet the target.

A former officer who convinces the College of Policing to remove their details from the barred or advisory lists would probably have better prospects than a rookie. All they need to do is wait out the three (or five) year period before applying. Because the Regulations took effect on 15 December 2017, some may have already done so.

The fact that former officers found guilty of gross misconduct can get back into policing means It is only a matter of time before their victims might see them in a uniform again. Situations like the one my colleague Daniel Fitzsimmons described here (Should a Criminal Conviction Prevent a Police Officer From Serving?) are even more likely.

The trauma for victims of police misconduct could be devastating.

And the failings of the barred and advisory lists undermine public confidence in the police.

Kevin Donoghue is the solicitor director of Donoghue Solicitors. Contact him here.

 

 

Five Ways Police Sexual Misconduct Goes Unchecked

Photo of Kevin Donoghue, a solicitor who explains how police sexual misconduct goes unchecked.

Solicitor Kevin Donoghue offers five reasons why police sexual misconduct goes unchecked in this blog post.

By Kevin Donoghue, Solicitor

Recently BBC Woman’s Hour and Newsnight reported on the issue of police sexual misconduct, including sexual abuse within the police’s ranks.

Listen to their disturbing report on Woman’s Hour here.

Sadly, incidents of police sexual misconduct are not new.

In January 2017, Her Majesty’s Inspectorate of Constabulary and Fire & Rescue Services (HMICFRS) reported that police abuse of position for a sexual purpose, which includes cases within the police’s own ranks, is a nationwide problem. I highlighted the issue here: Police Abuse of Position for a Sexual Purpose – No More Excuses.

And, in 2019, ITV reported on sexual abuse by police officers, which I wrote about here: Will an ITV Documentary Help End Sexual Abuse by Police Officers?

In the latest report by the BBC, the journalists made two Freedom of Information Act (FOIA) requests to learn more about how police officers abuse their positions of authority for sexual gain.

Among other things, the BBC’s FOIA reports showed how predatory police officers avoid accountability for sexually abusing their colleagues. They exploit failings in the system, including:

  1. the duty to report police misconduct and risk of bad faith accusations
  2. the lack of independent investigations into police sexual misconduct
  3. the Police Federation’s conflict of interest when representing both officers involved in sexual abuse cases
  4. the way police misconduct proceedings protect abusers’ identities
  5. how police forces avoid accountability by ignoring or avoiding legitimate FOIA requests.

Here I review the evidence found by the BBC and explain how this form of police officer corruption goes unchecked.

What the BBC Freedom of Information Act Reports Showed

  1. The first FOIA request for information from the police about sexual misconduct

The first FOIA request was a collaboration between Woman’s Hour and BBC Newsnight. It sought information about police sexual misconduct from all 46 police forces in the UK. Only 32 forces replied.

The request covered the past five years. It uncovered nearly 1,500 cases of police sexual misconduct.

But only 204 cases resulted in disciplinary action. As a result, a paltry:

  • 7% of the accused officers in the reported cases were dismissed
  • 7% were reprimanded but allowed to keep serving as police officers
  • 52 (or 3%) of the accused officers’ cases went to court.
  1. The second FOIA request

This FOIA request covered the last three years.

It also dealt with allegations of police sexual misconduct, which included serious criminal offences as well as matters which were serious enough to report but not regarded as crimes. These included:

Only 19 of the 46 forces responded to the second FOIA. Despite this small number, it revealed:

  • 29 rapes (including one of a child)
  • 149 sexual assaults (including during strip searches).

The FOIA responders described disturbing behaviour by the police including:

  • stalking
  • indecent exposure
  • revenge porn
  • two allegations of attempting to converse with a child or possessing or making indecent images of children.

Ruth’s Story of Sexual Abuse by a Police Officer

The figures uncovered by the BBC showed how police officers to abuse their power for sexual gain.

But it is important to remember that these are not just numbers. They account for real people whose lives have been changed by sexual abuse and misconduct.

The Woman’s Hour report brought the statistics to life through the story of “Ruth”, a former officer. Her interview described how victims of sexual abuse by colleagues in the police are mistreated, and why they may be reluctant to report.

You can listen to Ruth’s interview here or read my transcript:

I was a probationary officer and I’d worked with this male officer for several months.

We had got on well then on a works outing I got sexually assaulted by him.

He touched my chest multiple times saying, “you touch mine and I’ll touch yours.”

No one else saw and he was my line manager so I felt like I couldn’t say anything.

I felt violated.

I was really uncomfortable. I told my partner, and he was fuming.

Q. What happened next?

A. The next day I got a text from him saying, “hope you had a good time.”

I decided to reply saying he was inappropriate and if it happened again, I would report him.

He sent a text back apologising.

Q. Could you move on from that?

A. No. I didn’t want to work alongside him anymore. But when I told my superiors they said I was duty bound to say why.

When I did, they said I had to tell professional standards and make a complaint.

I said no. I didn’t want to risk my job.

I was eventually persuaded to speak to professional standards and was interviewed as an assault victim (only for professional standards I didn’t make a criminal complaint at that stage).

Q. What happened with professional standards?

A. By the time the hearing was due I had been transferred and found out that my new boss was a friend and colleague of the man who assaulted me.

He issued me with a development plan to improve my performance. I was upset as I believed there was nothing to justify this.

They said if I didn’t complete it, I would be marked as underperforming. In the same meeting they told me I wasn’t cut out to be a cop and they were extending my two-year probation period by four months. This felt to me more like a disciplinary than anything else.

Sometime later in training I was served with allegations about my honesty and integrity. This was a month before the misconduct hearing against my former line manager was due to be heard. I had to wait months to get full details.

I got served with 19 other allegations including that I’d lied about my health and that a back injury caused at work had actually happened in my own time.

At the time officers from the professional standards department would turn up unannounced when I was working.

I wasn’t allowed to get my Police Federation representative along.

The Federation was, of course, also supporting the man who assaulted me. I was pregnant at the time.

All of this made me very ill. I got depression and anxiety. I ended up going to hospital with stress at one time.?

Q. What was going on with the investigation into the other officer at this time?

A. His hearing was postponed four times. They were dealing with mine instead.

I kept being told I was not entitled to legal advice.

Eventually I got independent legal advice and I made a criminal complaint about the officer. But after a 12- month wait I was told there would be no further action saying it didn’t meet the evidential threshold to be sent to the Crown Prosecution Service.

It was over a year later that the professional standards hearing into the allegations about me took place and I was dismissed.

I couldn’t believe it.

I wrote to the Police and Crime Commissioner for backing but I never heard anything.

I didn’t know what to do.

Q. What happened to the officer you complained about?

A. He resigned but they still allowed him to give evidence at my hearing and make counter allegations. Now he has no stain on his character, but I am on the policing barred list. I can never be an officer and it’s all for something I didn’t do.

I can’t believe it. I got assaulted it was never dealt with and I lost my job. I’m now taking legal action.

Ruth’s story showed that sexual abuse within the police is a systemic and institutional issue. Others echoed her comments. One messaged the programme saying:

I was an officer with the Met. I was dismissed after I reported sexual assault.

Here are five reasons why police officers get away with abusing their colleagues:

1. The duty to report police sexual misconduct and risk of bad-faith accusations

The BBC’s second FOIA report noted that only 40% of police sexual misconduct investigations started with a report from a fellow officer. This is despite the fact that police officers must report misconduct by their colleagues when they see it. The police Code of Ethics says:

 I will report, challenge or take action against the conduct of colleagues which has fallen below the standards of professional behaviour.

It makes clear that:

You have a positive obligation to question the conduct of colleagues that you believe falls below the expected standards and, if necessary, challenge, report or take action against such conduct.

But:

You will not be supported, and may be subject to disciplinary procedures, if your report is found to be malicious or otherwise made in bad faith.

Many sexual assault or misconduct cases involve one person’s word against another. The chances of a “he-said-she-said” situation are great. The consequences for the innocent victim could be that they are accused of making a bad faith allegation. If their abuser is believed, they could suffer disciplinary action and even dismissal.

The conflict between the:

  1. duty to report, and
  2. risk of disciplinary action after being accused of making a bad faith accusation.

means that victims are stuck between a rock and a hard place.

No wonder only 40% of accusers came from within the police’s ranks.

2. The lack of independent investigations into police sexual misconduct

As Harriet Wistrich, director of the Centre for Womens’ Justice pointed out on Woman’s Hour:

Women are very reluctant to report sexual assault and other forms of misconduct to the police and that probably, almost certainly, is amplified where the alleged perpetrator is a police officer. Because who are they reporting to? To the police.

The Centre for Women’s Justice is pursuing a “super-complaint” looking into police abuse and sexual misconduct. Ms Wistrich says that they have had more than 150 women come forward since they launched the complaint.

One of the Centre’s recommendations is that there is:

 an independent reporting channel so that women have confidence to come forward and independent investigation because often the very same people who are investigating know the officers concerned, they are in the same police force (particularly in the smaller police forces) and this is very undermining of confidence.

This makes perfect sense. And yet the current system does not allow for it.

Instead, police force internal Professional Standards Departments investigate the bulk of sexual misconduct investigations. Only rarely does the Independent Office for Police Conduct get involved, as I described in this blog post: Are police sexual exploitation cases being brushed under the carpet?

3. Police Federation conflict of interest when representing both officers involved in sexual abuse cases

Ruth’s story also highlights the nonsensical situation where both the accused and accuser are represented by the same organisation.

Both police officers in her case were members of the Police Federation. The Federation, which is considered the police officers’ union, describes itself as:

the staff association for police constables, sergeants and inspectors (including chief inspectors), having first established in 1919.

We are one of the largest staff associations in the UK representing more than 130,000 rank and file officers.

Despite Ruth seeking the support of her union, it appears that the Police Federation sided with the accused officer and supported him throughout the disciplinary process. This could be because she was only a probationary officer, and he had a higher rank.

Someone also wrongly told her that she was not entitled to legal advice.

To her credit, Ruth got a second opinion and brought a criminal complaint. But the Crown Prosecution Service evidently felt that the criminal standard of proof could not be met. To do this, the court would have to find beyond reasonable doubt that the officer Ruth accused was guilty of a criminal offence.

Ruth said that “no one else saw” what happened. It is likely that the “he-said-she-said” nature of her case was a factor in the CPS’s decision not to prosecute.

Contrast a criminal case with police misconduct and disciplinary proceedings. They are conducted on the civil standard, also known as “the balance of probabilities”. Police Misconduct Panels must decide if it is more probable than not that the allegations are made out. Perhaps that is why the officer who assaulted Ruth resigned before taking the chance of being sacked at a misconduct hearing.

4. The way police misconduct proceedings protect abusers’ identities

In my previous blog post you can read how the Police (Conduct) Regulations help cover up sexual abuse by protecting the anonymity of sexual abuser police officers and their employer police forces.

The Regulations allow for anyone involved in the proceedings, including police officers accused of sexual misconduct and their police force employers, to seek orders from the Police Misconduct Panel. Orders can protect the identity of the officers involved by:

  • preventing public and media access to disciplinary hearings,
  • limiting the use of live witness evidence, and
  • putting publicity restrictions on cases, anonymising details of the police officers involved.

Police sexual abuse is one of the most serious forms of corruption and gross misconduct. The Police Conduct Regulations and Misconduct Panels can help it get “brushed under the carpet”.

5. How police forces avoid accountability by ignoring or avoiding legitimate Freedom of Information Act requests.

It is telling that both FOIA requests filed by the BBC had low participation rates from the police:

  • fewer than 70% of police forces responded to the first FOIA request
  • only 41% of them responded to the second request.

The forces which failed to respond either:

  • did not meet the deadline, or
  • said it was too costly to provide the information.

Neither of these excuses pass the smell test. Police forces are well-resourced and familiar with the FOIA process. If some forces can provide the information, then all can.

A failure to respond, or accurately report, suggests that forces have a wider problem with police sexual abuse and misconduct. But by concealing the extent of the problem, they make it easier for sexual abusers within their ranks to continue their corrupt behaviour.

Public Confidence Impact

The numbers reported by the BBC should be considered an undercount for two reasons:

  1. the responding forces will not have included every instance. As Ruth’s story showed, officers are reluctant to report misconduct by their colleagues.
  2. the investigation uncovered nearly 1,500 instances of police sexual misconduct. It stands to reason that this is a bigger problem. This is because about 30% of forces in the first FOIA request and nearly 60% of forces in the second FOIA request failed to answer.

Police forces have no excuse for allowing this serious form of corruption to continue. Chief Constables:

  • undermine public confidence in their forces, and
  • damage morale within their ranks

by enabling police officers who abuse their power for sexual gain.

And, as Ruth’s story showed, the personal and professional toll can be devastating.

Kevin Donoghue is a solicitor who specialises in police abuse of authority for sexual gain compensation claims.

 

 

How the Police Conduct Regulations Help Cover Up Sexual Abuse

 

Solicitor Kevin Donoghue discusses the Police Conduct Regulations and how they can be used to cover up sexual abuse here.

Solicitor Kevin Donoghue explains how the Police (Conduct) Regulations 2020 can be used to cover up sexual abuse.

By Kevin Donoghue, solicitor

Last week I went to BBC Television Centre in London for an interview with Newsnight’s Yasminara Khan. My client “Sara” and I helped with a story about how police deal with sexual abusers within their ranks.

The piece was aired on Newsnight on Wednesday night. Watch it by clicking on the iPlayer link below:

A longer discussion about police sexual misconduct was part of BBC Radio’s Woman’s Hour on Tuesday.

Among other things, we discussed how officers and forces involved in police misconduct proceedings can cover up police abuse of position for a sexual purpose.

This is how the Police (Conduct) Regulations 2020 help them do it.

What is Police Abuse of Position for a Sexual Purpose

Police abuse of position for a sexual purpose (also known as police abuse of authority for sexual gain) has been described by HMICFRS Inspector Mike Cunningham as the “most serious” form of corruption within the police.

It 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.”

As I explained in my blog post: Police Abuse of Position for a Sexual Purpose – No More Excuses, it is a nationwide problem. It affected all but one police force in 2017.

And, as Her Majesty’s Inspectorate of Constabulary and Fire & Rescue Services (HMICFRS) found:

  • 40% of allegations involved vulnerable victims of crime
  • less than half (48%) of all the police sexual exploitation cases it identified were reported to the Independent Police Complaints Commission (now Independent Office for Police Conduct) for an independent investigation
  • 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 means that some of these predators are still serving with the police, giving them the opportunity to repeat their misconduct.

Why is Police Sexual Abuse Grounds for Dismissal for Gross Misconduct

Gross misconduct by the police is defined as:

a breach of the Standards of Professional Behaviour which is so serious that dismissal would be justified.

Police abuse of authority for a sexual purpose clearly fits within that definition and is strong grounds for immediate dismissal from the police. As Inspector Cunningham said:

“Make no mistake about it, the sexual exploitation of vulnerable women is corruption. It is using authority for personal gain, which is a definition of corruption.

“It is the most serious corruption problem in the sense that it is the ultimate betrayal of trust, where the guardian becomes the abuser. That is what we are seeing in these cases, and we’re seeing too many.”

Dismissal for this form of corruption is considered at police misconduct hearings.

What are Police Misconduct Hearings?

Police misconduct hearings are the way allegations of misconduct are dealt with by police forces.

Douglas Readings, a Chair of Police Misconduct Hearings, explains here that:

The Police Misconduct Hearing is unique. It combines features of a number of judicial and quasi-judicial bodies. It is both inquisitorial and adversarial. It is not part of HMCTS.

Who is Involved in Misconduct Hearings?

Police misconduct hearings are set up in a way many people will recognize from court t.v. dramas, even though, as Mr Readings says, they are not formal court proceedings.

Often there are three “judges” in these hearings. The “Misconduct Hearing Panel” is usually made up of:

  • a legally-qualified chair
  • a senior police officer (Superintendent, Chief Superintendent, or higher ranked officer)
  • a lay person.

The “prosecutor” is a senior police officer within the force, known as the “Appropriate Authority”. That officer works within the force’s Professional Standards Department. They take statements and prepare a report which is used by those involved in the misconduct hearing to consider the case against the accused officer.

The Appropriate Authority usually instructs a trained lawyer to present the case.

The “defendant” police officer is usually represented by counsel too, and often accompanied by a member of the police officers’ union, the Police Federation.

Witnesses are rarely called because they have already given evidence to the Professional Standards Department which is included in the Appropriate Authority’s report.

Despite this, the Panel has the power to ask witnesses to attend in person. It might do this if there is a fact in dispute which must be resolved before considering sanctions against the officer.

Why Police Misconduct Hearings Should Be Public

As I previously described in this blog post: How police ignore guidance on outcomes in police misconduct proceedings, “misconduct proceedings are not designed to punish police officers”.

Instead, as Mr Readings notes, sanctions at police misconduct hearings are intended to:

  • protect the public,
  • maintain public confidence in the police service, and
  • uphold high standards in policing and deter misconduct.

Misconduct hearings ought to be public for these reasons too. But often they are not, because of the way those involved can use the Police (Conduct) Regulations 2020, the law which applies to these proceedings.

How the Police (Conduct) Regulations 2020 Deal with Police Misconduct Hearings

Police misconduct hearings are governed by strict rules set out in The Police (Conduct) Regulations 2020.

The law came into force on 1 February 2020.

Among other things, it describes how police forces may (but do not have to) publicise full details of the officer involved, including allegations of misconduct in advance (my emphasis is in bold throughout):

36.—(1) The person chairing a misconduct hearing (“the chair”) may require the appropriate authority or, as the case may be, the originating authority, to give notice of the hearing which contains information relating to one or more of—

(a)the name of the officer concerned;

(b)the date of the hearing;

(c)the time of the hearing;

(d)the place at which the hearing will take place, and

(e)the conduct that is the subject matter of the case and how that conduct is alleged to amount to misconduct or gross misconduct, as the case may be, as set out in the notice given in accordance with regulation 30(1)(a).

(2) Where the chair requires notice to be given in accordance with paragraph (1), the appropriate authority or, as the case may be, the originating authority, must publish the notice on its website as soon as practicable after notice of the hearing is given under regulation 35(1).

 

There are many exceptions to the basic principle about publicity, which is why s.36(1) is a “may” not a “shall” rule.

Section 36 also makes clear that anyone involved, including the accused officer and their police force employers, can seek to vary the publicity requirements described above or exclude someone from attending:

(3) Any person to whom this paragraph applies may make written representations to the chair in relation to—

(a)whether, and (if so) the extent to which, the chair should exclude any person from the whole or part of the hearing under regulation 39(3)(a);

(b)whether the chair should impose any conditions under regulation 39(3)(b);

(c)whether the chair should give directions prohibiting the publication of any matter relating to the proceedings under regulation 39(3)(c);

(d)in the light of the representations made under sub-paragraphs (a) to (c)—

(i)whether the chair should require notice to be given under paragraph (1);

(ii)which types of information mentioned in paragraph (1)(a) to (e) should be included in any such notice.

(4) Paragraph (3) applies to—

(a)the officer concerned;

(b)the appropriate authority or, as the case may be, the originating authority;

(c)the complainant;

(d)any interested person;

(e)any witness, and

(f)the Director General.

When read with section 39 below, it is easy to see how the Police (Conduct) Regulations 2020 help undermine the presumption of publicity.  It means that accused police officers and/or their force employers can have misconduct hearings:

  • in private
  • with limited attendance by excluding victims, journalists, and other interested parties
  • set up to limit or exclude witnesses from the proceedings
  • without publicity before, during, or after the hearing. This last point can be justified on shockingly vague grounds:

Reporting restrictions, participation and exclusions from proceedings

39.—(1) Subject to paragraph (3), a misconduct hearing must be in public.

(2) Subject to regulations 38 and 40, a misconduct meeting must be in private.

(3) Having considered any representations received under regulations 33(8)(f), 36(3) and 36(5), the person conducting or chairing the misconduct proceedings may—

(a)in relation to the attendance at the proceedings of a person under regulation 40 or this regulation, exclude any person as they see fit from the whole or a part of those proceedings;

(b)impose such conditions as they see fit relating to the attendance under regulation 40 or this regulation of any person at the proceedings in order to facilitate the proper conduct of those proceedings, and

(c)in the case of a chair appointed under regulation 28(4), give such directions as they think appropriate prohibiting the publication of any matter relating to the proceedings.

(4) Where it appears to the person conducting or chairing the misconduct proceedings that any person may, in giving evidence, disclose information which ought not to be disclosed to any person, other than a party to the proceedings, attending the proceedings because it is information to which paragraph (7) applies, they must require such attendees to withdraw while the evidence is given.

(5) Subject to any contrary decision by the person conducting or chairing a misconduct meeting, a witness other than a complainant, interested person or the officer concerned may only attend the misconduct meeting for the purpose of giving their evidence.

(6) Where a person is to give evidence as a witness at misconduct proceedings, the witness (and any person accompanying the witness) must not be allowed to attend the proceedings before giving evidence.

(7) This paragraph applies to information in so far as the person conducting or chairing the misconduct proceedings considers that preventing disclosure of it to an attendee is—

(a)necessary for the purpose of preventing the premature or inappropriate disclosure of information that is relevant to, or may be used in, any criminal proceedings;

(b)necessary in the interests of national security;

(c)necessary for the purpose of the prevention or detection of crime, or the apprehension or prosecution of offenders;

(d)necessary for the purpose of the prevention or detection of misconduct by other police officers or police staff members or their apprehension for such matters;

(e)necessary and proportionate for the protection of the welfare and safety of any informant or witness;

(f)otherwise in the public interest.

How the Police use the Law to Hide Gross Misconduct

The exceptions outlined above mean that, in practice, police forces and their officers easily avoid publicity, and with it, public scrutiny and accountability.

For example, West Mercia Police describes the purpose of public hearings on their website:

Misconduct hearings are held to present the facts of the case and allow the person to give an explanation of their conduct and the circumstances surrounding the allegation. Witnesses may also be called to give evidence.

The purpose of a public hearing is to show that our disciplinary system is open and transparent. It will demonstrate that we do hold officers who breach the standards of professional behaviour, or those where misconduct is found proven, accountable for their actions.

While that sounds good, the force then explains how it puts obstacles in the way of making the system “open and transparent”:

  1. it allocates places at misconduct hearings on a first-come-first-served basis.
  2. the public must apply using a booking form.
  3.  “the Chair may also decide to impose other conditions before or during the hearing.”
  4. “Sometimes a misconduct hearing is not held in public or only a part is heard in public. To decide this, the Chair takes into account:
  • national security
  • whether it interferes with the prevention or detection of crime
  • the welfare of parties involved

If the Chair decides that the evidence to be given by a witness or anyone else should not be disclosed in public, they’ll ask that the public be removed from the hearing.”

How Police Use the Publicity Exceptions Cover Up Misconduct

The effect of the Police (Conduct) Regulations 2020 publicity exceptions can be found in notices the police issue about misconduct hearings.

West Mercia Police’s website shows how it’s done:

Notice of a misconduct hearing for Police Officer

IN THE MATTER OF THE POLICE (CONDUCT) REGULATIONS 2020
AND IN THE MATTER OF A West Mercia Police Officer.
PUBLICITY NOTICE

On the 7th – 16th July 2021 at 1000hrs, a Misconduct Hearing under the provisions of the Police (Conduct) Regulations 2020 will take place in Worcester in relation to a West Mercia Police Officer.

The officer will answer allegations that his conduct amounted to a breach of the Standards of Professional Behaviour, namely;

Authority, Respect and Courtesy

BREACHES OF THE STANDARDS OF PROFESSIONAL BEHAVIOUR

It is alleged that the officer’s actions were in breach of the Standards of Professional Behaviour.

If proved, it is contended that the officer’s actions singularly or in their totality amounted to gross misconduct.

The chair of the meeting, Mr Callum Cowx has directed that anonymity and reporting restrictions are to be granted to the police officer, but that this shall be revisited in the event of a finding adverse to the officer.

If you wish to attend, please go to our ‘Upcoming misconduct hearings page’ and click the ‘Start’ button.

(my emphasis in bold)

The effect of this notice is that the officer’s anonymity is protected by the Chair despite an allegation of gross misconduct, which isso serious that dismissal would be justified.”

Any media report will not include their details before or during the proceedings. Restrictions may only be lifted after the hearing “in the event of a finding adverse to the officer”, and then only at the Chair’s discretion.

How Anonymity Affects Victims of Police Sexual Abuse

For victims of sexual abuse this veil of anonymity means that:

  1. they do not get to talk about what happened publicly.

As Yasminara Khan said in the BBC Newsnight report:

“We understand a detective handling Sara’s case told her she could not discuss what happened to her with friends, family, colleagues or in fact anyone other than medical professionals or her counsellor.

The reporting restrictions mean Sara cannot report what happened at the misconduct hearing but she feels the limits of those restrictions haven’t been made clear and that she’s been left without closure.”

And, as my client explained:

“I feel like I’m not able to talk about this, they have emphasized that I can only talk to either law professionals or mental health professionals, and I don’t understand why.I need to be able to talk to people. I can’t talk to my family, I can’t talk to my friends – I’m not allowed”

  1. other victims are unlikely to find out about the disciplinary proceedings unless the reporting restrictions are lifted. This means that serial sexual abuser police officers (and their employers) may never account for the full extent of their crimes. As Sara said:

“I feel like when I initially reported him, I wanted not just justice for myself, but to safeguard others – that was my main motivator and now as time’s gone on throughout the investigation I’ve been made to feel like I’m being punished for telling the truth, if that makes sense. I don’t think the justice was enough”

Public Accountability Avoided

Ms Khan noted in her report that victims are rarely named in sexual abuse cases. Neither are the officers.

The effect of the Police Conduct Regulations is that corrupt police officers, and the forces that enabled them, can use the law to avoid public accountability.

I don’t know if the officer involved in the West Mercia Police case above is accused of such serious and corrupt misconduct as police abuse of position for a sexual purpose.

He or she may not be. We may never know.

And that’s the point.

Kevin Donoghue is a solicitor who specialises in police abuse of authority for sexual gain compensation claims.

 

Five Ways Online Reviews Help Clients and Solicitors

Photo of Daniel Fitzsimmons, a Chartered Legal Executive, who discusses online reviews

Many in the legal profession have been slow to adopt online reviews. Daniel Fitzsimmons explains why Donoghue Solicitors embraces them.

By Daniel Fitzsimmons, Chartered Legal Executive

It’s a fact. People leave and read online reviews of law firms. A recent report from a company in the USA found that 81% of consumers look at lawyers’ reviews and think they are important. (The numbers are even higher for other products or services.)

My firm has been listed on many online customer review sites for years. You can read genuine reviews of Donoghue solicitors on:

·       Google

·       Facebook

·       Freeindex

·       the reviews page of our website.

As a law firm based in Liverpool which represents clients throughout England and Wales, we’re happy to be found through internet search engines, review platforms, social media etc. to engage with reviewers.

We have found that the internet is a valuable way potential clients from all over can learn more about us and how we treat people.

Online Reviews Trial

The legal profession has slowly woken up to the reality that online reviews are being left and read.

Recently the SRA, Council for Licensed Conveyancers and CILEx Regulation began a pilot scheme working with comparison sites and about 70 law firms who volunteered to be part of the experiment.

The trial:

“aims to increase the amount of easily accessible, comparable information on the quality of legal services providers which is available to the public.”

It is ongoing and the results are unknown. Despite this, another legal standards regulator, the Legal Services Board, is considering forcing law firms to sign up for review websites.

The Law Society Gazette reports that a paper in support of the possible requirement says:

“action is needed to ‘catalyse’ change in the legal market.”

Some commenters on the Gazette article make clear their disgust at being forced to sign up:

Anonymous Commented on:9 June 2021 4:23am

This really hits the bottom of regulatory stupidity. After which we know that they will start to dig.

Anonymous Commented on:8 June 2021 9:40am

Out of curiosity, is there any other trade, profession or occupation in the UK for which a listing on a comparison website is mandatory?

I suspect that Joe Public’s ‘problem’ with solicitors is that solicitors are very rarely needed in most people’s lives, so when they do need one they haven’t a clue where to go. And what we do is technical, dull stuff which most people don’t understand except in terms of the outcome (claim won, house bought … but none of the palaver to get to the outcome).

Anonymous Commented on:8 June 2021 8:31am

If this comes to pass, we will in due course inform the LSB that we have no intention whatsoever of pandering to such an absurd diktat.

The LSB (and its “subsidiaries”) has lost all touch with reality and appears to exist entirely for its own benefit.

While I agree with the view that solicitors’ firms should not be forced into any form of marketing, let alone one which is so time and money hungry as online review management, internet-based reviews have their place.

Here are five reasons why they help solicitors and clients alike:

1. Reviews let us know how we are doing

Clients are free to leave reviews on many websites, including those I listed earlier, at any time. All it takes is a few taps or clicks.

We encourage reviews because they give us valuable information about how we are performing as a firm and individually.

If our client’s leave positive reviews and go away from the case satisfied, then we can be too. We use the positive things we learned to help others.

Equally, negative comments and fewer-than-five-star reviews can help us improve.

2. Online reviews help reassure potential clients if they instruct us

One reason we’re so keen on online reviews at Donoghue Solicitors is that we use them too.

I often read reviews and star ratings on sites like:

  • Tripadvisor, before booking holidays
  • Amazon, when buying electronics
  • Google, when booking restaurants.

Our clients do the same when researching law firms. For most people, instructing a solicitor is an unusual event. Getting reassurance from others about a firm and its lawyers can help put their minds at rest.

This form of “social proof” helps generate both local business and clients from further afield.

I often talk to new clients who tell me they got in touch because of our online reviews. I’m glad my clients read the reviews, because it helps them get a sense of the firm and its people, and what kind of customer experience they can expect.

3. Reviews show the limits of what we can do and who we can help

Like all businesses, we get the occasional negative review. More often than not, these are from people who asked us to represent them, but we could not help. Often this is because of resources, merits, or other reasons which you can read about in my colleague Kevin Donoghue’s blog post: Why won’t a solicitor take my no win no fee claim?

We respond to bad reviews by explaining the situation. This is for:

  1. the benefit of the person leaving the review, and
  2. others who may be thinking about using our firm.

By responding to negative reviews fully we hope to:

  1. reassure the person who left the negative review that we were genuine in our reasons, and
  2. save others the time and effort of contacting us if our firm is not suitable for their needs. (There are plenty of other lawyers out there who might be able to help. We recommend the Law Society’s free Find a Solicitor service.)

4. Reviews help us fulfil our regulatory burdens

Despite our enthusiasm for internet marketing, Donoghue Solicitors is not required to have an online presence.

One reason is because we are not bound by the SRA’s transparency rules.

The SRA is promoting transparency rules on service and pricing for conveyancers and employment lawyers, among others. It expects firms which offer those services to publish details online (if they have websites).

The regulator has not yet forced such rules on compensation claims lawyers like me and my colleagues. But I expect it’s only a matter of time, and getting online reviews now helps us prepare.

5. Internet reviews inspire us to keep going in the hard times

Like all jobs, there are good and bad days in the law. Getting a positive online review when things are tough can be the tonic we need.

Recently one of my clients left this review on Google, for which I’m truly grateful:

Matthew Kirtley

 23 hours ago

My tremendous thanks to Daniel Fitzsimmons and the Donoghue Solicitors team for their work on my claim. Along with being friendly, Daniel’s expertise really has shone through. Daniel was able to break down my story and clearly lay out what I should be looking to claim for, and then proceeded to set out a clear plan of action for gathering evidence and preparing my claim. Throughout my time as a client Daniel kept me clearly informed as to the status of my claim and the path going forward. When it came to dealing with my opponent, Daniel was an excellent negotiator. Daniel pushed firmly on my behalf, clearly anticipating my opponent’s responses and seeing through their attempts to deflect and undermine my claim. As a result, Daniel secured an excellent settlement from my opponent. He negotiated a much larger compensation package than anticipated through his persistence, and also obtained a written apology and several other important concessions. A fantastic outcome. Daniel genuinely believed in the merits of my case and was clearly motivated by a desire to secure justice. He’s a friendly, principled, and extremely capable solicitor and I wouldn’t hesitate to recommend him. He and the team at Donoghue Solicitors have been exceptional, and represent the best side of the legal profession.

Positive Impact of Online Reviews

I understand the legal profession’s reluctance to embrace online reviews. No one like to be criticized, and there are real problems with fake reviews, review site manipulation of rankings, and other questionable practices.

On the whole though, the positives outweigh the negatives, for both clients and lawyers alike.

Daniel Fitzsimmons is a Chartered Legal Executive at Donoghue Solicitors. Contact him here.

 

Why I Hope My Client Wins a Community Hero Award

Photo of Kevin Donoghue, Director of Donoghue Solicitors and expert in actions against the police claims.

Kevin Donoghue discusses how a client’s mental health campaigning led to a Community Hero award nomination.

By Kevin Donoghue, solicitor

Kieran Jones is a long-standing client of mine.

(He has given his permission for me to use his details and share what I know about him in this blog post.)

On Thursday, 3 June, Wigan Council is presenting the Our Town Awards. Kieran is nominated for the “Community Hero” award. I whole-heartedly support his nomination and wish him every success.

How I Know Kieran Jones

As many people do, Kieran came to me for legal help after being wronged by the police.

I agreed to represent him but warned Mr Jones that civil actions against the police can be hard-fought and take a long time. So it proved.

Kieran’s case is still ongoing, but my colleagues and I continue to fight hard for him to get the justice he deserves.

Facebook review by Kieran Jones

Mental Health Counselling Impact

Like so many of my clients, Kieran struggled with his mental health following the police encounter.

He “hit rock bottom”. But, unlike some people who try to hide their issues, Mr Jones reached out to me. I’m glad he did.

I recommend counselling to all clients who may be struggling with mental health issues. Kieran got the professional help he needed to work on his recovery.

Seeing how therapy helped his own mental health also gave Kieran a purpose.

Campaigning

Kieran knew that the counselling and treatment he received could help others.

So he started campaigning in his local community for mental health to be more widely treated and accepted.

He even organised a tough-mudder team to raise awareness and funds for Mind, the mental health charity. He included a youth team because, as he told me:

I am going to push to get mental health educated like sex education as when they dropped the age of sex education teenage pregnancy dropped.

Watch Kieran and his team compete here.

Photo of Wigan Council Our Town Award Community Hero nominee Kieran Jones' tough mudder team.

Kieran Jones’ tough mudder team before the event.

Community Hero Recognition

Kieran’s work in the community has been recognised by friends, family, and those who have benefitted from his work.

He has been nominated for the Our Town Community Hero award, for which Wigan Council sought nominations, asking:

Do you know someone who rolls up their sleeves and takes the initiative to bring your local community together?

Positive Mental Health Impact

Kieran’s community has benefitted from his experience. He suffered greatly at the hands of the police but turned it into something positive, even though he still lives with the trauma.

I take no credit for helping Kieran. He was the one who recognised that he needed help. And crucially, Mr Jones acted by bravely reaching out to me, doctors, and others.

As Kieran says on his website:

I understand the feeling of being lost alone and desperate and want to ensure no one ever feels that way again!

I wish him every success in the Our Town awards and hope that Kieran’s campaigning work helps bring lasting change to those who suffer with mental health issues.

 

How the Whiplash Reforms Could Affect You

Photo of Thomas O'Sullivan, a trainee chartered legal executive who discusses the whiplash reforms.

Thomas O’Sullivan considers the impact of the whiplash reforms and raise in the small claims limit.

By Thomas O’Sullivan, Trainee Chartered Legal Executive

Monday 31 May 2021 could be an important date in your life.

I hope this never happens, but if you are unfortunate enough to be injured in a road traffic accident on or after that date, when it happened could make a difference of thousands of pounds in compensation and a huge amount of extra stress.

Why?

Because from Monday new rules about accident claims in the Civil Liability Act 2018 come into effect.

What is the Civil Liability Act (2018)?

The Civil Liability Act is a UK law which passed on 20 December 2018.

Among other things, it affects innocent accident victims who were involved in road traffic accidents on or after 31 May 2021.

It does this by raising the small claims limit from £1,000 to £5,000 for personal injuries (with a £10,000 maximum for the overall claim) suffered in road traffic accidents.

Exceptions

There are exceptions to some of the issues caused by the higher small claims limit for motorcyclists, pillion passengers, children, and others.

But most people claiming whiplash-type injuries will be impacted by the increase.

The new rules affect many road traffic accident victims who claim compensation because those people:

  1. do not fall within the exceptions, and
  2. often suffer whiplash-type injuries.

The Civil Liability Act also introduced changes to the law, which are known collectively as “the whiplash reforms”.

What are the Whiplash Reforms?

The whiplash reforms are changes to the way claimants in certain low value road traffic accident claims are compensated. The reforms are detailed in the Civil Liability Act 2018 and its supporting statutory instrument, The Whiplash Injury Regulations 2021.

The reforms set compensation awards for whiplash injuries based on a tariff and outline the procedure by which claimants can seek damages.

What are Whiplash Injuries?

The Civil Liability Act defines whiplash broadly:

“Whiplash injury” etc

(1)In this Part “whiplash injury” means an injury of soft tissue in the neck, back or shoulder that is of a description falling within subsection (2), but not including an injury excepted by subsection (3).

(2)An injury falls within this subsection if it is—

(a)a sprain, strain, tear, rupture or lesser damage of a muscle, tendon or ligament in the neck, back or shoulder, or

(b)an injury of soft tissue associated with a muscle, tendon or ligament in the neck, back or shoulder.

 

Does that sit right with you? Would you consider a ruptured back ligament or tendon “whiplash”? Many wouldn’t. The serious nature of these injuries undermines the idea that whiplash is something people claim just because they can.

But it’s not all bad. The Act has exceptions for other personal injuries:

(3)An injury is excepted by this subsection if—

(a)it is an injury of soft tissue which is a part of or connected to another injury, and

(b)the other injury is not an injury of soft tissue in the neck, back or shoulder of a description falling within subsection (2).

Why Does Raising the Small Claims Limit Matter in Road Accident Claims?

Insurers have tried for years to cut the number of whiplash claims by blaming the non-existent compensation culture.

The government bought into the myth and introduced the whiplash reforms, increasing the small claims limit from £1,000 to £5,000 for personal injuries (£10,000 overall) in road traffic accidents in the process. It justified the changes by claiming that the reforms will reduce insurance premiums, even though past experience suggests that this promise is false.

But these reforms don’t just affect whiplash injury victims.

As the government explains here, “personal injuries” in road accident claims include, but are not limited to, whiplash injuries.

So even people who are injured in a car crash but do not claim whiplash could still be caught by the rule change and find that their personal injury cases are considered “small claims”.

Legal Costs in Small Claims Cases

So what?

Legal costs are not recoverable in small claims. Instead, only very limited costs are payable by the losing party, mostly for things like court fees.

As a result, many road accident injury claimants who want compensation on or after 31 May 2021 will:

  1. submit claims themselves using a government-run “portal” on the Official Injury Claim website, and
  1. get whiplash compensation based on a fixed tariff.

Tariff System to Calculate Whiplash Injuries

If:

  1. the responsible party’s insurers admit liability in a road traffic accident claim in which whiplash suffered in a vehicle (other than a motorcycle) is claimed
  2. the injured victim recovers (or is expected to recover) within two years

the insurers will offer whiplash compensation based on a fixed-fee tariff.

(Whiplash injuries which last more than two years are not calculated on the tariff system.)

The tariff system will be used instead of calculating damages by reference to previous cases and judicial guidelines.

The effect of this is that most people suffering whiplash injuries after 31 May will receive significantly less compensation than before.

This is because of the fixed amounts in the tariff, which apply to cases where claimants recover within two years:

Tariff of compensation for whiplash injuries.

The second column shows the amount of compensation for basic whiplash injuries. The third shows the amount for whiplash + one or more minor psychological injuries suffered on the same occasion as the whiplash injury or injuries. And note that there are circumstances where an uplift on the tariff amounts could be claimed, but it is not expected to apply to most cases.

As a Trainee Chartered Legal Executive with many years’ experience in personal injury claims, I know that these figures are significantly lower than those my clients presently receive. For many, the paltry amounts of compensation payable will not be worth the effort involved.

I’m not alone in thinking that the tariff compensation awards for whiplash are inadequate.

The Civil Justice Council, whose “primary role is to advise the Lord Chancellor, the Judiciary and the Civil Procedure Rule Committee on civil matters” noted that:

The introduction of the tariff will reduce general damages for the whiplash element of a motor-related personal injury claim.

Unfair Treatment of Whiplash Injury Victims

On my reading of the Civil Liability Act, a torn wrist ligament (which can happen when drivers hold the steering wheel tightly in a crash) is outside of the scope of the whiplash reforms.

Compensation for that would be calculated using judicial guidelines and case law (with expert help from a lawyer if the claim is excluded from the small claims regime).

By contrast, a torn back ligament is included within the Act and would be considered “whiplash”. Its value would be determined by reference to the tariff if the claimant recovered within two years, and the innocent victim would be expected to submit the claim themselves.

As a result of this setup, the torn wrist ligament victim would get more compensation than someone who suffered a torn back ligament.

I’m not sure those who suffer from torn back ligaments would see the sense in that.

The government says the tariff will be reviewed by the Lord Chancellor within three years, and then every three years after that. But it would be naïve to think this will result in meaningful increases for accident victims.

Whiplash compensation amounts have been permanently reduced by this legislation, saving money for insurers and making it less likely that people will claim.

How to Claim for Whiplash After 31 May 2021

The effect of the whiplash reforms is that most people involved in road traffic accidents on or after 31 May 2021, will be expected to bring claims themselves using the Official Injury Claims website “portal”.

The government claims that:

Substantial work has been undertaken to ensure that the service provides a fair, accessible and efficient system for all claimants. The service has been carefully designed with the claimant firmly at its heart and provides a modern, user-friendly digital system, supported by guidance. Digitally disadvantaged claimants who are unable to use the system may also seek assistance from the dedicated telephone support centre.

It remains to be seen if the portal delivers on these promises. It is a government-run scheme after all.

Cost to Bring a Small Claim for Personal Injury

Damages may not be agreed in these road traffic accident claims, despite the government’s view that the tariff is fair and that the portal will be easy to use.

If so, the claimant can ask a judge to decide how much their injury claim is worth at a court hearing.

But to do that the innocent claimant must pay expensive court fees out of their own pockets. They could be as high as £1,045 as the government explains here, and might not be paid back.

I don’t think this promotes access to justice, which is often quoted as a government goal, especially when compared to the existing system for those who have personal injury claims which are not part of these reforms. For those claimants, it is common for lawyers to take cases on a “no win no fee” basis and help with court fee payments (e.g. by seeking remission of court fees) on their clients’ behalf.

Why Many Solicitors Will Decline to Act in Whiplash Claims after 31 May

People are free to spend their money how they like, and for some, it might be worthwhile paying a lawyer to handle matters, even if legal fees are not recoverable.

But in most cases, qualified lawyers would advise against this.

Why?

Because we are under a duty to act in our client’s best interests.

Paying a lawyer privately in a small claims case (like a whiplash claim where the claimant recovers in under two years) would result in most, if not all, compensation awarded going towards legal fees. Some unlucky people might even be left out-of-pocket. So what’s the point?

Donoghue Solicitors’ Approach to Road Traffic Accident Claims After 31 May

For this reason, and with great regret, my firm no longer accepts instructions from road traffic accident victims with low-value (under £5,000 for personal injuries, £10,000 overall) and whiplash-type claims.

Anyone who contacts us about bringing such claims will be referred to the Law Society’s find a solicitor service and the Official Injury Claim website.

Despite this, we still represent people in their higher value road traffic accident claims.

Anyone with road traffic accident personal injury claims worth more than £5,000 (or claims worth more than £10,000 overall) should contact me directly for legal help.

(Find out how much your claim is worth by using our compensation calculator. Speak to me or one of my colleagues if you need more information.)

Whiplash Reforms Effect

It is telling that these increases in the small claims limit and the whiplash reforms only apply to road traffic accident claims. For now, other personal injury claims are unaffected.

But it is likely that the whiplash reforms and increase in the small claims limit in road traffic accident claims will make claiming compensation so difficult and financially unattractive that many won’t bother.

For insurers, that’s the point.

It pains me to say it but, in this case, motor insurers and the government won.

Thomas O’Sullivan is a Trainee Chartered Legal Executive at Donoghue Solicitors. Contact him here.

How College of Policing Guidance Enables Body Worn Camera Abuse

Photo of Kevin Donoghue, a solicitor who discusses College of Policing guidelines on body worn cameras in this blog post.

Kevin Donoghue, solicitor, reviews the College of Policing guidelines on body worn cameras in light of a recent court case.

By Kevin Donoghue, solicitor

For many years I have said that the College of Policing’s body worn camera (BWC) guidance is not fit for purpose. In particular, I have railed against the idea that the police can be trusted to use their cameras properly. A recent court report highlights the inevitable consequences.

Last week I read a shocking story by Neil Docking of the Liverpool Echo: “Bent coppers covered up officer battering man in his home.”

The story is worth reading in full by clicking on the link above. (It opens in a new tab so you can come back here afterwards.) It could be used as a case-study for police corruption and reflects very poorly on Merseyside Police.

Mr Docking describes how four police officers:

  • Darren McIntyre
  • Laura Grant
  • Lauren Buchanan-Lloyd
  • Garrie Burke

lied and lied after the victim was repeatedly punched and left pouring with blood.

His story includes details of:

  • an unprovoked police assault on an innocent man, Mark Bamber
  • threats of (unlawful) arrest to an innocent bystander for legally filming the incident
  • unlawful arrest and detention
  • police body worn video camera abuse
  • unauthorised review of footage
  • police officers colluding to avoid liability for misconduct
  • delays in uploading BWC evidence
  • lying in witness interviews/ statements
  • blanket denials by officers despite overwhelming evidence
  • criminal prosecution of Merseyside Police officers resulting in a Crown Court jury trial
  • police officers found guilty of perverting the course of justice and (in one case) assault.

Long-Standing Body Worn Camera Abuse Concerns

A key part of this case centred on the abuse of police body worn cameras. Sadly, concerns about this problem are not new.

Seven years I wrote this blog post: Why the Police Should Change Their Body Camera Policy

In it, I explained how the Metropolitan Police were trialling the use of body worn cameras. I noted that:

It is expected that the body cameras will only be used when the police respond to incidents and during stop & search operations, rather than during day-to-day interactions. The Commissioner says this is because leaving the cameras on all the time would be ‘too intrusive’.

I urged the Met, then led by former Merseyside Police Chief Constable Sir Bernard Hogan-Howe, to set a policy of recording every interaction with the public:

to counter suspicions that officers would deliberately not turn their body cameras on

noting that:

Other forces are watching with interest and are expected to adopt body cameras if the test is successful.

The Present Body Worn Video Camera Problem

When I wrote that blog post I was most concerned about cameras not being activated. But, as the Mark Bamber story shows, this did not go far enough. The problem extends to things like:

  • keeping body worn cameras running
  • officers turning away to avoid filming police assaults
  • delaying uploads of video footage
  • unauthorised viewing of footage
  • police officer collusion
  • fabricating statements.

College of Policing Body Worn Video Guidance

Merseyside Police employed all the officers in the Mark Bamber case.

That force applies the College of Policing’s 2014 guidance on body worn video. (It has its own Body Worn Video policy which you can read here.)

What is the College of Policing, and Why Do Police Forces Follow its Guidance?

The College of Policing describes itself as:

a professional body for everyone working across policing. It is an operationally independent arm’s-length body of the Home Office.

It claims that:

  • We connect everyone working in the police and law enforcement to understand their challenges.

  • We use evidence-based knowledge in everything we develop.

  • We help police officers and staff; researchers, academics and learning providers; the international policing community; and the public.

  • We give a voice to professional policing on standards, skills and capabilities.

Review of the College of Policing Body Worn Video Guidance

Here I refer to the College of Policing’s body worn video guidance instead of Merseyside Police’s policy. This is because the College issues best-practice guidance for all national police forces, including Merseyside Police.

The Relevant sections are as follows (my emphasis in bold):

Section 5 – principle 4 and principle 5

Principle 4 – The operational use of body-worn video must be proportionate, legitimate and necessary.

Principle 5 –Use of body-worn video will be incident specific. Officers will use common sense and sound judgment when using body-worn video, in support of the principles of best evidence.

Operational considerations

Recording an incident – basic principles and techniques

The decision to record or not to record an incident rests with the user. However, users should record incidents whenever they invoke a police power.

Under normal circumstances, all BWV users present at an evidential encounter, regardless of the fact that other BWV users may be present, should record the incident. Users should always take into account the circumstances and the people involved, for example, vulnerable persons. Failing to record an incident may require explanation in court, although in some instances it is not appropriate to make a video recording. In such cases users should record the fact in their pocket notebook.

Users may not indiscriminately record entire duties or patrols. Recordings must be incident specific (whether or not the recording is ultimately required for use as evidence).

All recordings can be used in evidence, even if it appears to the user at the time of the incident that this is unlikely (eg, a stop and search with a negative result). All recordings should be treated as evidential until it is confirmed otherwise. If it becomes obvious that the recording will not be evidential, unless there are other extenuating circumstances, users should stop recording immediately.

Users should capture as much evidence as possible (including the context of the encounter) and should always try to record as much of an incident as possible. Users should begin recording at the start of an incident or at the earliest opportunity thereafter, for example:

  • as soon as users are deployed to an incident
  • as soon as they become aware that any other encounter is likely to occur in front of them.

In order to comply with the DPA and HRA, wherever practicable, users should restrict recording to the areas and persons necessary in order to obtain evidence and intelligence relevant to the incident. Users should always attempt to minimise collateral intrusion on those not involved.

And note this section:

Selective capture

The BWV user should record entire encounters from beginning to end without interrupting the recording. There will, however, be occasions when the user may wish to consider interrupting the recording of an incident. In such circumstances the user may decide to start and stop recording at any point during an encounter. This practice is referred to as selective capture.

For example, it may be necessary to stop recording an incident in cases of a sensitive nature or if the incident has concluded prior to the arrival of the BWV user. In all cases the user should exercise their professional judgement in deciding whether or not to record all or part of an incident.

If the user chooses to interrupt or cease recording at an ongoing incident, they should record their decision and rationale (if practicable in the circumstances) by making a suitable verbal statement on the BWV material and also in a pocket notebook or other log.

Selective capture can also be used to describe the process of temporarily stopping and restarting recording in order to bookmark (see bookmarking) the recorded material.

Selective capture never involves deleting images. There are no circumstances in which the user can justify unauthorised deletion of any images that have already been recorded.

Any such action may result in legal or disciplinary proceedings.

Interpreting the College of Policing Guidance

There are four main points to take away:

  1. police officers have absolute and total discretion when to use their body worn cameras, subject to certain requirements (like invoking a police power)
  2. they should not leave cameras running and, instead, must target their use to specific events and people
  3. recordings must be treated as evidence (which means that they must be preserved unmolested)
  4. police officers should capture as much of the incident as possible, ie. Start recording when deployed or as soon as necessary to capture evidence. But this is open to interpretation, and officers can start or stop recordings during incidents as they see fit.

The practical effects of some of this guidance can be seen in Neil Docking’s Liverpool Echo report. Evidently, the officers used some of their training (described below in bold) before going rogue:

The jury was told McIntyre, Grant and Buchanan-Lloyd all switched their cameras on at the start of the incident, which they were trained to keep on, as it is key evidence.

However, Grant and Buchanan-Lloyd both turned off their cameras when things became violent, which Mr Barton [the Prosecutor in the case] said was a deliberate attempt to prevent independent evidence being recorded.

The court heard Grant hesitated then turned away from the violence to turn off her camera and Buchanan-Lloyd did the same.

Buchanan-Lloyd later said in an interview that she and Grant discussed turning their cameras off and whether they would say their batteries died, but decided this would be too suspicious.

No Excuses for Police Body Worn Camera Abuse

Clearly, giving individual officers’ wide discretion about using body worn cameras is problematic. The police don’t need to see their fellow officers prosecuted to know that. They have academic research to back it up.

In September 2020, a report by Cynthia Lum et al was published on the College of Policing’s own website.

(This is the same site where police officers can read the body worn camera guidance used by UK forces outlined above.)

The report described a meta-analysis of 30 studies considering the effects of body worn cameras on policing. Most of the studies were based on police in the USA, but some focused in whole or part on UK police forces.

Its authors noted that:

Today, BWCs are likely the most rapidly diffusing technologies in modern police history. Although it is difficult to determine how many BWCs are in circulation today, there have been some estimates. In the United Kingdom, one assessment by a privacy watchdog group found that over 70% of police forces had acquired cameras by 2019 and were rapidly moving toward full adoption.

It found that in most forces where body worn cameras were issued officers had to use them:

a large portion of the agencies (83%) had official policies that required officers to either turn on their cameras at the start of their shift or at least turn them on when carrying out most official duties.

BWC turned on by defaultFound in number of studies% of total
Yes2583.3
No13.3
Cannot tell413.3

But the authors found that allowing police officers wide discretion to activate cameras is unusual. Only 9 of the 30 studies found that the police had a “higher” level of discretion about when to turn cameras on or off:

Discretion regarding on‐offFound in number of studies% of total
Higher930.0
Moderate310.0
No or low1446.7
Cannot tell413.3

It is likely that the UK College of Policing guidelines mentioned above fit within the higher level definition of discretion because:

30% of studies involved agencies that gave officers much higher levels of discretion as to their BWC usage. In those studies, agencies left it up to officers to decide whether to turn on their cameras and provided wide latitude in this decision.

This means that nearly half of the studies (47%) found forces, many of which were in the USA, were more strict than those following the UK College of Policing guidance. The officers in those forces:

had no or low discretion as to when they could turn on or off their cameras. Policies in these agencies often specified only a handful of circumstances in which officers could turn off their cameras or included stringent rules and reporting requirements when officers turned off their cameras.

As a side note, the obligation to report is significant. I expect officers in “no or low discretion” forces would rather leave cameras running to avoid paperwork.

Impact of Removing Discretion

The report’s authors urged more targeted research, but in the studies they reviewed:

moderator analyses suggest that BWCs may be more likely to reduce police use of force if agencies highly restrict officers’ discretion in how they use the cameras.

They couldn’t be clearer: the College of Policing should review its policy and consider removing officer discretion from body worn camera use. This will likely reduce unlawful use of force incidents.

The 2020 report finding by Cynthia Lam and others is not new. It was anticipated in 2016.

Then Barak Ariel and others reported that body worn cameras reduced the level of police complaints by 93% when policies “stripped officers of their discretion to decide when, where, and under which conditions BWCs would be applied.”

In a blog post I wrote at the time (3 Ways the Police Could Improve Their Body Worn Cameras Policy) I urged the police to update their policies and gave recommendations to help restore public confidence. Nearly five years later the police have not made the changes suggested.

Merseyside Police Reputation Damage

Do senior police officers in the UK’s forces and the College of Policing still need convincing to remove user discretion with body worn cameras?

If so, they should think of the damage done to officer and force reputations.

Stories like the one Neil Docking published in the Liverpool Echo newspaper and on its website are widely shared. They live on past news cycles. The old adage that “today’s news is tomorrow’s chip paper” is no longer true.

Instead, Merseyside Police’s reputation has been harmed, with long-lasting consequences.

How can the public trust that its officers will follow force policy when using their body worn cameras?

Will officers:

  • use similar methods to PCs, McIntyre, Burke, Grant, and Buchanan-Lloyd to avoid investigations and accountability?
  • “turn away” and switch cameras off to avoid creating damaging evidence? Both PCs Grant and Buchanan-Lloyd did this at Mark Bamber’s home. (Were they taught this tactic from someone within the force? If so, who?)
  • lie in “inaccurate” statements to cover up what happened?

Disciplinary Proceedings Against the Police

Merseyside Police said that “PCs McIntyre, Burke and Grant are all currently suspended. Constable Buchanan-Lloyd is on restricted duties.”

I am astounded that Buchanan-Lloyd is still working for the force. The police seem to be excusing her misconduct due to youth and/or inexperience. Would other convicted criminals get the same break from their employers?

No doubt the force will bring swift disciplinary proceedings against all officers. But, as my colleague Daniel Fitzsimmons noted in this blog post many police forces continue to employ convicted criminals. The officers’ dismissal is not guaranteed despite their proven dishonesty and misconduct.

Policy Update Required

Merseyside Police has caused potentially permanent damage to its officers’ careers by allowing them to control their body cameras.

As a Merseyside resident, I am deeply concerned about this situation. And as a solicitor who specialises in civil actions against the police, I see that:

  • incentives for officers to act dishonestly when using body worn video remain, potentially
  • harming innocent victims of police misconduct.

It is long past time for the College of Policing to update its policies to reflect reality.

Kevin Donoghue is a solicitor who specialises in civil actions against the police. Contact him here.

UPDATE on 28 May 2021

The Guardian reports that two of the officers (Garrie Burke and Laura Grant) have both received 15-month prison sentences for their part in “what can only be described as a cover-up”.

Laura Buchanan-Lloyd was given a nine-month sentence, suspended for 18 months.

PC Darren McIntyre will be sentenced in July.

If the prospect of police officers serving prison time doesn’t bring about change then I don’t know what will.

Can We Trust the Police With Social Media?

 

Photo of Kevin Donoghue, a solicitor who asks if we can trust the police with social media.

Kevin Donoghue reviews some recent media reports and asks if we can trust the police with social media.

By Kevin Donoghue, solicitor

This week the Independent Office for Police Conduct (IOPC) took the unusual step of issuing a specific warning to police officers about their use of social media.

Michael Lockwood, the IOPC Director General noted that:

“From racist, sexist, and other discriminatory comments to photographing crime scenes and using social media to contact victims of crime for sexual activity, it is concerning that a small number of police officers appear to think that this is acceptable behaviour.

“In the most serious examples we have seen grossly offensive images and messages which the public would be appalled by. Making discriminatory remarks, and the sharing of graphic and offensive memes and images, is unacceptable under any circumstances.”

The article shared a letter Mr Lockwood wrote to the National Police Chiefs Council (NPCC).

In that letter he noted that:

  1. “only the most serious cases come to the IOPC for investigation and it is likely there are other similar cases being dealt with locally which we are not aware of.”
  2. “the cases we are seeing may be indicative of broader cultural issues within some police forces.”
  3. “we have been investigating an increasing number of cases where police officers have abused their position for sexual purpose and contacted vulnerable people using social media.”

He urged the NPCC:

“to consider what mechanisms could be strengthened or need to be put in place at a national level to ensure there is sufficient scrutiny of this issue to maintain public confidence in policing.”

How the Police Abuse Social Media

While there are undoubtedly many fine officers in the police’s ranks, not every one of them can make us proud.

What kinds of people are employed by our country’s police forces, and how are they using social media? Recent news stories shed some light on the issue:

  1. Former Metropolitan Police officer Ben Hannam was convicted of membership of a neo-Nazi terrorist organization. Hannam also admitted possessing an indecent image of a child. The Guardian reports that:

Hannam, of Edmonton, north London, had been working as a probationary officer for the Met for nearly two years before he was found on a leaked database of users of extreme rightwing forum Iron March.

The Metropolitan Police dismissed Hannam without notice following his criminal conviction because “his behaviour was found to amount to a breach of the standards of professional behaviour.”

He has since been jailed for 4 years and 4 months.

  1. The Crown Prosecution Service is pursuing a criminal case against two serving Metropolitan Police officers.

The CPS has charged them with misconduct in public office in connection with an investigation into the deaths of two women in Wembley in June 2020. The officers are alleged to have taken and shared photographs of the crime scene.

  1. Another (now former) Metropolitan Police officer, Detective Sergeant Marc Tuffrey, “sent a string of sexual messages to another police officer and behaved in ‘unwanted sexual manner’.” He also made discriminatory comments verbally and in writing.

A disciplinary panel found that the former Detective Sergeant breached professional standards. The panel’s Chair said Tuffrey would have been dismissed without notice if he was still serving.

Commander Paul Betts described the former Detective Sergeant’s misconduct as “a blatant abuse of the trust his position as a police officer and supervisor afforded Tuffrey.”

Using Social Media to Abuse Authority for Sexual Gain

These cases are by no means unusual, and not restricted to the Metropolitan Police.

I have helped people bring civil actions against the police for over 20 years. During that time, I have seen an increase in the number of cases involving officers who, like those described above, exploit technology to abuse victims.

Some of the gravest matters I deal with involve clients who have suffered sexual abuse by police officers.

Her Majesty’s Inspectorate of Constabulary and Fire & Rescue Services defines this activity as “police abuse of authority for sexual gain.” It is:

a type of serious corruption, whereby police officers or police staff abuse their powers to sexually exploit or abuse people.

The National Police Chiefs Council describes it as a “disease” within the police.

Many of the police abuse of authority for sexual gain cases I deal with involve “grooming”: the process by which predators develop an emotional connection with a victim to prepare them for sexual abuse.

In my experience, officers often do this after helping an already-vulnerable victim of crime as part of their job, such as a victim of domestic abuse.

They use the information gained during the meeting, such as mobile phone numbers and social media details, to contact the innocent victim.

These police officers then groom their victims using text messages and messenger services like Facebook Messenger, social media platforms like Twitter and Instagram, and encrypted apps like WhatsApp, Signal, and other tools.

When their abusive misconduct is finally revealed, police officers frequently argue that their interactions were private and consensual.

They were nothing of the sort.

Why is the Police Abuse of Social Media Happening?

Every case is different, but one constant appears to be that the guidance in the police’s Code of Ethics is not front-of-mind for many police officers.

The police have been bound by a Code of Ethics since 1829, when Sir Robert Peel’s Nine Principles of Policing were introduced (read more about them in this blog post: Will Cressida Dick Uphold Peel’s 9 Principles of Policing?).

Those principles include fundamentals such as:

To recognise always that the power of the police to fulfil their functions and duties is dependent on public approval of their existence, actions and behaviour and on their ability to secure and maintain public respect.

and

To maintain at all times a relationship with the public that gives reality to the historic tradition that the police are the public and that the public are the police, the police being only members of the public who are paid to give full time attention to duties which are incumbent on every citizen in the interests of community welfare and existence.

Police Code of Ethics Guidance on the Use of Social Media

The current version of the Code builds on Peel’s Principles. It is nearly seven years old (last published in July 2014).

This means that every police officer, from the probationer to the most experienced, ought to know the contents.

The Code of Ethics includes clear guidance on social media in the section on “Confidentiality”, which has as its core principle:

I will treat information with respect, and access or disclose it only in the proper course of my duties.

The Code says:

Social media

7.3

This standard also relates to the use of any platform of web-based or mobile communications, social networking sites, and all other types of social media.

7.4

While there are benefits of social media to policing, there are also potential risks.

7.5

According to this standard you must:

  • use social media responsibly and safely

  • ensure that nothing you publish online can reasonably be perceived by the public or your policing colleagues to be discriminatory, abusive, oppressive, harassing, bullying, victimising, offensive or otherwise incompatible with policing principles

  • not publish online or elsewhere, or offer for publication, any material that might undermine your own reputation or that of the policing profession or might run the risk of damaging public confidence in the police service.

What the Code of Ethics Guidance Means

The guidance is clear. I read it this way:

  1. It covers all forms of mobile and internet-based communications including text messages (which are “mobile communications”). Officers cannot hide behind anonymous accounts or use encrypted apps. The requirements apply regardless of the method of electronic communication.
  2. Officers must (the deliberate use of this word means there is no room for doubt) use social media responsibly and safely. “Safely” includes a non-negotiable obligation to consider the well-being of the recipient, which is especially important when dealing with vulnerable victims of crime.
  3. Police must (again, no room for discussion) consider how their use of social media and text messages will be perceived by the recipient or reader (ie. the pubic and/or their colleagues). They have a duty to maintain the police’s reputation and must consider:
    • if it is appropriate to communicate with someone using text messaging, social media apps etc. at all
    • the language and tone used.

Risks of Ignoring Social Media Guidance

Is this too much to ask of our police? I don’t think so. One definition of a “professional” is a person who is bound by a code of ethics. Solicitors, teachers, doctors, and others fall within the definition.

The police are no different.

A failure to abide by their own Code of Ethics can form the basis of disciplinary action for breaches of professional standards. (Such breaches are why the officers described above were dismissed.)

Despite this risk, it appears that police officers ranging from probationers like Ben Hannam to seasoned officers like former Detective Sergeant Tuffrey, felt that they could act with impunity when using social media.

They wrongly behaved as if the Code of Ethics did not apply to them.

Police Recruitment Warning

The lack of restraint by some police officers when using social media is concerning, especially as this week the government crowed about the apparent success of its latest recruitment drive. It said that:

  1. 8,771 police officers have been recruited under the Police Uplift Programme
  2. the government is already 44% of the way towards meeting its ambition of hiring 20,000 additional officers by 2023.

On its face, this sounds positive. But I am concerned that corners may be cut when:

  • vetting potential recruits
  • giving ethics training
  • making sure officers meet their professional obligations.

To deal with this:

  1. recruiters must do a better job of weeding out those who seek to exploit the unique authority held by the police for their own ends
  2. serving police officers must set an example by following the Code of Ethics, using social media responsibly, and notifying their superiors and/or regulators of breaches by colleagues
  3. police force Professional Standards Departments and the Independent Office for Police Conduct should get more resources and legal “teeth” to hold offenders to account.

The police and government should take this issue seriously. It matters: public trust in the police is at stake.

Kevin Donoghue is a solicitor who represents people in civil actions against the police. Contact him here.

The Metropolitan Police: Profiles in Cowardice

Photo of Kevin Donoghue, a solicitor who considers how the Metropolitan Police handled the Sarah Everard vigil.

Kevin Donoghue considers how senior officers at the Metropolitan Police handled the Sarah Everard vigil.

By Kevin Donoghue, solicitor

In 1957, then Senator John F Kennedy won the Pulitzer Prize for “Profiles in Courage”. His book told the stories of eight American senators in mid-19th century America. All the men profiled sacrificed political and public support to do what was right, often at the expense of their own careers.

The Kennedy family later created the Profile in Courage Award to recognize those who made decisions which put conscience ahead of popular and/or political opinion. Winners include:

  • the “Peacemakers of Northern Ireland”, for the “extraordinary political courage they demonstrated” to create the Good Friday Agreement
  • Gabrielle Giffords, “in recognition of the political, personal, and physical courage she has demonstrated in her fearless public advocacy for policy reforms aimed at reducing gun violence.” Ms Giffords survived an assassination attempt by a gunman which left her with a severe brain injury. Despite this, she continues to campaign for gun control
  • Gerald Ford, 38th President, who pardoned his predecessor Richard Nixon, a move which arguably resulted in him losing the 1976 election.

Would today’s leaders in the Metropolitan Police Service merit a place in Kennedy’s book or receive the family’s Award?

Metropolitan Police Handling of the #ReclaimTheseStreets Vigil

Consider the police’s handling of the Sarah Everard #ReclaimTheseStreets vigil last weekend. As you may already know, Ms Everard went missing after walking home from a friend’s house in South London on 3 March. It is alleged that Sarah was kidnapped and killed by Wayne Couzens, a serving Metropolitan Police officer and member of the Force’s armed Parliamentary and Diplomatic Protection Command.

On Saturday 13 March, hundreds of women attended a #ReclaimTheseStreets vigil at Clapham Common, near where Sarah was last seen.

The vigil was a peaceful expression of collective grief and a mark of solidarity for women who sought safety from male violence. Even Kate Middleton, the Duchess of Cambridge, showed up.

#ReclaimTheseStreets Vigil Broken Up by Metropolitan Police

The peaceful day turned ugly when the Metropolitan Police forcibly shut the vigil down by arresting people including Patsy Stevenson, whose photo went viral on social media.

The Force took this step after, according to Assistant Commissioner Helen Ball, “a small minority of people began chanting at officers, pushing and throwing items”.

Politicians, the public, and media were rightly appalled by the Metropolitan Police’s handling of this peaceful protest.

Here was an opportunity for senior police officers in the Metropolitan Police to show leadership, courage, and empathy of the kind found in Profiles in Courage. But did they?

What Senior Metropolitan Police Officers Said About the #ReclaimTheseStreets Vigil

Consider the highlighted parts of the statement from Assistant Commissioner Ball, which I quote in full below:

Statement from Assistant Commissioner Helen Ball following events in Clapham Common:

“May I start by extending my deepest condolences to the family and friends of Sarah Everard. Across the Met we are still extremely saddened and shocked by the tragic circumstance of her disappearance and death.

“Earlier tonight, I joined the Commissioner in a candlelit vigil outside New Scotland Yard. I know many thousands of people up and down the nation also held similar vigils in Sarah’s name.

“I recognise that the decision by the organisers to cancel the Reclaim These Streets vigil in Clapham Common was deeply unwelcome news. Even so, given the ever present threat of Coronavirus, this was the right decision to make.

“Today, for over six hours hundreds of people came to lay flowers and pay their respects to Sarah in Clapham Common in a safe and lawful way.

“Around 6pm, more people began to gather close to the bandstand within the Common. Some started to make speeches from the bandstand. These speeches then attracted more people to gather closer together.

“At this point, officers on the ground were faced with a very difficult decision. Hundreds of people were packed tightly together, posing a very real risk of easily transmitting Covid-19.

“Police must act for people’s safety, this is the only responsible thing to do. The pandemic is not over and gatherings of people from right across London and beyond, are still not safe.

“Those who gathered were spoken to by officers on a number of occasions and over an extended period of time. We repeatedly encouraged those who were there to comply with the law and leave. Regrettably, a small minority of people began chanting at officers, pushing and throwing items.

“After speaking with officers, the vast majority of people quickly left. Four arrests have been made for public order offences and for breaches of the Health Protection Regulations.

“Part of the reason I am speaking to you tonight is because we accept that the actions of our officers have been questioned.

“We absolutely did not want to be in a position where enforcement action was necessary. But we were placed in this position because of the overriding need to protect people’s safety.

“Let me end by saying that across the Met, we review every single event that we police to see if there are lessons that can be learnt. This one will be no different.”

(my emphasis in bold)

This mealy-mouthed statement puts the blame on the women protesters, not the police. This is extremely problematic given that the women were coming together to mourn the loss of another woman who was allegedly killed by a male Metropolitan Police officer. In effect:

  • you started it
  • we had no choice but to finish it
  • don’t bother holding us accountable. That’s the police’s job, not yours.

Metropolitan Police Commissioner Cressida Dick’s Statement in Support

Cressida Dick, the Met’s Commissioner and most senior officer, backed this approach in an official statement and subsequent interview. She said:

Commissioner’s statement following vigil on Clapham Common

Speaking this afternoon [Sunday, 14th March] the Commissioner Cressida Dick, said: “I wouldn’t have wanted to see a vigil in memory of Sarah end with those scenes.

“I fully understand the strength of feeling, I think, as a woman, and hearing from people about their experiences in the past and what they feel about what happened to her and what has been going on, I understand why so many people wanted to come and pay their respects, and make a statement about this.

The Commissioner also highlighted the difficulty faced by officers and that she welcomed a review.

She said: “This is fiendishly difficult policing, but I’m sure for the people who wanted to express their feelings, that was a difficult situation for them and that’s why it needs a cold light of day, sober, review, and I think we’re all agreed on that.”

Defending her officers, Commissioner Dick said:

“They have to make these really difficult calls and I don’t think anybody should be sitting back in an armchair and saying, ‘Well, that was done badly’ or ‘I would’ve done it differently’ without actually understanding what was going through their minds.”

(my emphasis in bold)

In effect:

  • you don’t understand what we have to deal with
  • don’t question our methods
  • we’ll deal with it later, so don’t bother holding us to account.

Problematic Language Used by the Police

Both statements reflect language which abuse victims will recognise.

In my experience as a solicitor who represents innocent victims of police misconduct, including many sexual abuse cases involving the police, the statements echo my dealings with the Metropolitan Police Service.

I have never, in my more-than-20 years of suing the Metropolitan Police, seen them admit liability without a fight. The Met’s policy appears to be to deny liability for every case where police misconduct is alleged. Even where claims are settled, the Met is extremely reluctant to apologise and admit wrongdoing.

The Force’s officers know this. The stance taken by senior officers in this episode will only embolden them. Officers can act with impunity, knowing that their so-called “leaders” have got their backs.

The Police Federation, the police officers’ union which represents more than 130,000 rank-and-file officers, follows this approach too. Look at how this statement from the Chairman of the Police Federation seeks to shift the blame away from the police:

26 Officers Assaulted – Metropolitan Police Federation Statement

Ken Marsh, Chairman of the Metropolitan Police Federation said: “26 Metropolitan Police officers were assaulted – punched, kicked, spat at – yesterday policing Covid-19 lockdown laws that a democratically elected Government have imposed… laws that the Mayor of London has called on us to enforce to keep Londoners safe.

Now colleagues are being condemned by politicians of all parties for doing what we have been asked to do by politicians on behalf of society. This is not right or fair. Damned if we do. Damned if we don’t. Are we supposed to enforce Covid-19 Regulations or not?

“Political leaders should be doing much more to support the police officers they have put in this impossible position.

“The thoughts of the Metropolitan Police Federation remain with the family and friends of Sarah Everard.”

(my emphasis in bold)

In effect:

  • you started this
  • you made us do it
  • we’re the victims here.

How Metropolitan Police Officers Ignore Peel’s Principles

I previously wrote about Cressida Dick’s appointment as Commissioner of the Metropolitan Police. I asked if she would uphold Sir Robert Peel’s Nine Principles of Policing, which include:

  1. To prevent crime and disorder, as an alternative to their repression by military force and severity of legal punishment.
  2. To recognise always that the power of the police to fulfil their functions and duties is dependent on public approval of their existence, actions and behaviour and on their ability to secure and maintain public respect.
  3. To recognise always that to secure and maintain the respect and approval of the public means also the securing of the willing co-operation of the public in the task of securing observance of laws.
  4. To recognise always that the extent to which the co-operation of the public can be secured diminishes proportionately the necessity of the use of physical force and compulsion for achieving police objectives.
  5. To seek and preserve public favour, not by pandering to public opinion; but by constantly demonstrating absolutely impartial service to law, in complete independence of policy, and without regard to the justice or injustice of the substance of individual laws, by ready offering of individual service and friendship to all members of the public without regard to their wealth or social standing, by ready exercise of courtesy and friendly good humour; and by ready offering of individual sacrifice in protecting and preserving life.
  6. To use physical force only when the exercise of persuasion, advice and warning is found to be insufficient to obtain public co-operation to an extent necessary to secure observance of law or to restore order, and to use only the minimum degree of physical force which is necessary on any particular occasion for achieving a police objective.
  7. To maintain at all times a relationship with the public that gives reality to the historic tradition that the police are the public and that the public are the police, the police being only members of the public who are paid to give full time attention to duties which are incumbent on every citizen in the interests of community welfare and existence.
  8. To recognise always the need for strict adherence to police-executive functions, and to refrain from even seeming to usurp the powers of the judiciary of avenging individuals or the State, and of authoritatively judging guilt and punishing the guilty.
  9. To recognise always that the test of police efficiency is the absence of crime and disorder, and not the visible evidence of police action in dealing with them.

(my emphasis in bold)

It appears that, if this weekend’s events are anything to go by, Peel’s Principles are not front-of-mind at the Met.

Failed Leadership at the Metropolitan Police Service

Commissioner Dick and Assistant Commissioner Ball missed an opportunity to put Peel’s Principles of Policing into action. They could, and should, have:

  1. apologised for the Met’s mishandling of the vigil
  2. readily accepted responsibility
  3. invited outside accountability for the police’s actions and any misconduct.

No doubt this would require courage. But it would have sent a clear and powerful message from the top about how the Force sees its role and what is expected of rank-and-file officers. As the biggest police force in the UK, it could have led to changes at other forces too.

Sadly, their responses were lacking. The Commissioner and Assistant Commissioner should not expect a call from the Kennedy family any time soon.

Kevin Donoghue is a solicitor who specialises in civil actions against the police.

Update

Since writing this blog post Sir Stephen House, the deputy commissioner of the Metropolitan Police has also spoken about the police’s handling of Sarah Everard vigil.

The Guardian reports that he said:

“We do not underestimate the upset that has been caused, but the officers took their actions believing they were doing the right thing to protect people’s health. I’m sorry, of course, that people are so upset at seeing officers enforcing legislation. But the officers were doing their duty as they saw it, and I will not second-guess that at this moment in time.”

(my emphasis in bold)

There it is again. A non-apology from a senior officer at the Met, just like those offered by Assistant Commissioner Ball who said:

“we accept that the actions of our officers have been questioned…”

and Commissioner Cressida Dick, who noted that:

“I’m sure for the people who wanted to express their feelings, that was a difficult situation for them…”

When it comes to victim-blaming, deflection, and attempts to avoid accountability, the Met’s senior officers are second-to-none.