How Court Delays Affect You

 

Photo of Daniel Fitzsimmons, a Director at Donoghue Solicitors who discusses the impact of civil court delays on the public.

Civil court delays are a problem for all of us. Daniel Fitzsimmons explains how here.

By Daniel Fitzsimmons, Director at Donoghue Solicitors

Recently the Association of Personal Injury Lawyers published a report which revealed shocking civil court delays. So what? Well, it matters for those involved in litigation, working within the court system, or funding it. One way or another, that’s all of us. This is why you should take notice.

What APIL’s Report About Court Delays Said

APIL is a not-for-profit organisation formed by claimant lawyers (like me). It campaigns for victims’ rights and uses its platform to seek to improve their lot. I am a proud member.

APIL analysed the latest civil justice statistics for courts throughout England and Wales. The report covered the period up to the fourth quarter of 2023.

The authors crunched the numbers and found that:

  • the average time for all “fast-track” (relatively straightforward) and “multi-track” (complex) claims cases to reach trial increased by six months when compared to the fourth quarter of 2019
  • it took an average of 85.7 weeks (more than a year and a half) for claims to reach trial. That is a rise of 41% when compared to the same period in 2019, and up 84% when compared to the same period in 2016.
  • the delays also affected “small claims”. These include things like road traffic accident claims with personal injury valued at less than £5,000, provided they are valued at under £10,000 in total. (Most “whiplash” claims fall within this category.) It took an average of 55.8 weeks, more than a year, for small-track claims to reach trial. This reflects an increased delay of 51% when compared to the same period in 2019.

Quite rightly, APIL president Jonathan Scarsbrook condemned the court system delays, noting that:

“During a delay, justice is at a standstill.”

How Delays in the Court System Impact Civil Claims

The increasing delays described in APIL’s report are deeply concerning. But, if anything, the time periods quoted are conservative.

I work full-time as a Chartered Legal Executive dealing with complex “multi track” civil court cases. These require frequent interactions with the court service, including when I

  • issue formal court proceedings
  • process paperwork and applications
  • seek and attend interim court hearings
  • take cases all the way through to County and High Court trials.

In my experience, it is a constant struggle to progress cases once they have been “issued” at court.

This example of a “multi track” civil action against the police shows how.

What Caused a Civil Action Against the Police

My client “John” lives in Ipswich. He was on a night out in town with family and friends. His sister and her boyfriend got into an argument, so John left the bar with her boyfriend. The two men were heading home through an alley, minding their own business, and talking at normal volume. Suddenly, a police officer approached John from behind and brutally assaulted him without warning. I use the word “brutal” deliberately: in a move familiar to UFC fans, the officer grabbed John by the head, pushed it down, and simultaneously kneed him in the face.

The vicious police assault broke John’s nose. It also caused dental injuries and other damage. John was in excruciating pain. His nose was bleeding, he was in shock, and he struggled to breathe.

The injuries were so severe that even the police officer who attacked John felt compelled to call for an ambulance. But, to add literal insult to injury, the officer arrested John first. He told John, his sister’s boyfriend, and the other officers at the scene that John had taken a swing at him first!

Calm heads eventually prevailed and the officer de-arrested John while they waited for the ambulance. (Read what this means in this BBC report prepared with the help of my fellow Director, Kevin Donoghue)

How Donoghue Solicitors Helped

John was rightly furious with his treatment and determined to seek justice.

He contacted me after seeing that I have a successful track record in pursuing civil actions against the police involving police brutality and the unnecessary use of force, and that I help people throughout England and Wales.

We discussed his case, which I agreed to take on a “no win no fee” basis and handled from start to finish.

I advised John to lodge a police complaint, which produced an answer about why John was assaulted. We found out that an incident had occurred nearby. The police were looking for “two males”. That, apparently, was enough for the arresting officer to assault John, the nearest person fitting the vague description.

Despite this explanation, John’s complaint was rejected, as usual. But through it we also got hold of police body worn camera and council CCTV footage. Contrary to what the officer said about John taking a swing at him first, the video appeared to prove the police assault was unprovoked.

Bringing Civil Court Proceedings in an Action Against the Police

I pursued a civil claim on John’s behalf. And this is where a real-world comparison with APIL’s data is useful.

Despite the video evidence, the police denied liability in writing. (They usually do.) As a result, John had no alternative but to issue formal court proceedings.

I issued and served the papers on 20 March 2023. As expected, the police filed their defence, which again denied liability, within the required 28 days.

The court determined that a Costs and Case Management Conference (“CCMC”) was required to agree “directions” – a schedule of tasks with dates to get the case ready for trial. This is usually a formality and often agreed without a court hearing. But it was listed for 6 Aug 2024, nearly 17 months (72 weeks and 1 day) after I issued proceedings.

From then, I expect it would take a further 15 months for the case to get to trial.

This meant that, if John’s case did not settle, it would take about 2 ½ years (139 weeks) for his case to get to trial. APIL’s finding that the average for claims to reach trial of 1 year 7 months (85.7 weeks) looks incredibly quick by comparison.

Fortunately for all involved, despite filing a defence, the police saw sense and agreed to negotiate settlement terms.

I settled John’s claim last week for £29,500. He will receive his money shortly, and the case will no longer be stuck in the court system.

Why Civil Claims in England and Wales Can Take So Long

John’s case is not unusual, especially in the niche of actions against the police. Part of the problem is caused by geography.

I find that delays in London are even worse than other areas. And London courts carry an outsize impact because of their size and geographical proximity to large populations and organisations.

For example, the Metropolitan Police is the biggest force in the UK, in the most populated area, and deals with the most civil claims of any force.

Its claims are dealt with exclusively at Central London County Court. This means that the public who are forced to issue actions against the police proceedings in London are disproportionately impacted by delays there.

(In the past I have tried to avoid the Central London County Court bottleneck by getting court proceedings handled further out. But they simply get transferred to Central London. There does not appear to be a way around this system, which causes excessive backlogs and delays.)

Why Civil Court Claim Delays Affect Us All

The findings of APIL’s report, and my own experience, matter because court delays impact:

  • Claimants, who have suffered injury or loss through no fault of their own. The civil court system is designed to put people back to the position they were in before the injury/loss. While no one can turn back time, compensation can be awarded to help with things like:
    • damages for personal and psychiatric injuries
    • physical and psychiatric therapy
    • lost earnings and expenses
    • property damage
    • modifications to homes and cars.

Delays in getting these things have real world effects on innocent victims.

  • Defendants. Court delays can affect:
    • individuals, such as motorists involved in disputed accidents
    • small businesses, for example when someone claims compensation after a slip, trip, or fall on their premises
    • insurers, who must include the value of the potential claim in their accounts, which affects their company valuation. They also pass on those charges to consumers, who must pay higher insurance amounts to cover the potential loss
    • police forces and other public authorities, who settle claims, or fight them to trial, using taxpayer funds.
  • court staff and judges, who are increasingly burdened, working in antiquated buildings, and suffering the ill-effects of stress
  • the public in general, who bear the increased costs of a failing court system, higher insurance premiums and tax burdens, and a loss of confidence in the justice system.

In short, we are all affected.

As APIL’s President said:

“England and Wales once had a justice system which was held up as an example to all the others, but now we have a system which is fraught with delays, short-staffed, and with court buildings in a state of disrepair.”

I couldn’t agree more.

Daniel Fitzsimmons is a Director at Donoghue Solicitors. He specialises in civil actions against the police involving the use of excessive and unnecessary force. Read more about him here.

What Another CILEx Qualification Says About Donoghue Solicitors

 

Photo of Kevin Donoghue, solicitor director of Donoghue Solicitors.

Contact Kevin Donoghue, Chloe Cuthbert, and the team at Donoghue Solicitors to start your compensation claim.

By Kevin Donoghue, solicitor

We got some fantastic news yesterday.

My colleague and fellow lawyer Chloe Cuthbert received an email from the Chartered Institute of Legal Executives. It confirmed that she has been admitted as a Fellow of the Institute. In layman’s terms, Chloe Cuthbert is a now a qualified Chartered Legal Executive.

This is a wonderful piece of news for Chloe, her clients, and colleagues. It also reflects the wider aims of me and my team at Donoghue Solicitors. This is why.

Photo of Chloe Cuthbert, a Chartered Legal Executive at Donoghue Solicitors who achieved CILEx qualification at the firm.

Chloe Cuthbert became a Chartered Legal Executive at Donoghue Solicitors.

How Chloe Cuthbert Became a Chartered Legal Executive

Chloe joins Daniel Fitzsimmons, Jack Hudson, and Kemmi Alfa in qualifying as a Chartered Legal Executive while working at Donoghue Solicitors.

To do so, like her colleagues, Miss Cuthbert had to undertake years of study and take exams. In Chloe’s case, these included earning an LLB (Hons) law degree at UCLAN.

Her work did not end there though. As well as years of academic study she also undertook extensive practical “on-the-job” training. This was done for a specific purpose. The training helped Chloe develop the necessary skills to handle complex legal issues at work. She proved this by submitting a detailed portfolio to CILEx’s expert assessors.

The portfolio was independently assessed and rigorously reviewed before approval. Only then could Chloe earn the coveted title “Chartered Legal Executive”.

All this means that Chloe, along with her fellow Chartered Legal Executives at Donoghue Solicitors, has proven herself to be a lawyer of the highest standard. She rightly deserves to be admitted as a Fellow. But, as my colleague Daniel Fitzsimmons noted, the work doesn’t stop when you qualify. There will be challenges ahead and I have every confidence in Chloe’s abilities.

Screenshot of Chloe Cuthbert's Chartered Legal Executive listing on the CILEx Authorised Practitioners Directory.

Screenshot of the CILEx Authorised Practitioner’s Directory showing that Chloe Cuthbert is a Chartered Legal Executive.

Why CILEx Qualification Matters

I am thrilled for Chloe personally and professionally. One of my priorities when I founded Donoghue Solicitors in 2010 was to help the next generation of lawyers. Some law firms pay lip service to staff training and development.

Not us.

Since setting up the firm I have helped many colleagues financially, professionally, and personally reach their goal of CILEx qualification, something which I am very proud to do. It is not a solo endeavour though. I encourage, and expect, my lawyers to help each other qualify by providing practical and moral support.

Focusing on legal qualifications does not just help me and my team. Our clients benefit too. One way this commitment to personal and professional development helps them is that we have a remarkably low staff turnover. We have all been working together for years (around twenty years in the case of Daniel Fitzsimmons and myself). As a result, our clients get access to decades of shared legal experience and a “brains trust” which, in my humble opinion, has grown to become one of the best teams of civil litigators in the country. (This view echoes points made by Daniel Fitzsimmons in his blog post: Are Chartered Legal Executives Second Class Lawyers?)

Finally, it says a lot about our focus on earning legal qualifications (such as CILEx qualification) that so many people have gone on to fulfil their dreams here. For me, Chloe Cuthbert, and her fellow Chartered Legal Executives at Donoghue Solicitors, there is no better place.

Contact Chloe Cuthbert, Chartered Legal Executive, for help with your legal issue here.

Scam alert: “Graham Kilbride” misusing the name of Donoghue Solicitors

 

Photo of Kevin Donoghue, solicitor, who reports on a scam alert.

Kevin Donoghue, solicitor director of Donoghue Solicitors, warns of a scam involving someone claiming to be “Graham Kilbride” who claims, falsely, to work for Donoghue Solicitors.

By Kevin Donoghue, solicitor

Today, I learned that a con artist claiming to be a “Graham Kilbride” has scammed an innocent victim out of £690 by falsely claiming to work for Donoghue Solicitors.

We are not involved, save that our firm’s name has been abused by the scammer. No such person has ever worked for the firm and, even though we have nothing to do with this incident, my firm has acted quickly to protect the public. We immediately reported it to the Action Fraud hotline and the Solicitors Regulation Authority.

In this blog post, I hope to draw attention to the scam to help others deal with similar cons.

How the Scam Worked

These are the facts as I understand them:

The scammers victim, a woman, says that she received a call “out of the blue” from a Liverpool number: 0151 558 0109.

The caller said he was “Graham Kilbride at Donoghue Solicitors here at Hatton Garden.” He said he was calling about a claim.

By coincidence, the woman has an ongoing compensation claim with a different law firm in Nottingham. She assumed, wrongly, that this what was “Graham Kilbride” was calling about, even though he falsely claimed to be from a firm she had never heard of (Donoghue Solicitors). The fraudster told his victim that her compensation was waiting, but that she had to pay £690 by bank transfer to “release the funds”. Convinced that she was going to get her compensation, the woman got her partner to transfer the money.

Her compensation did not arrive.

But the victim later received a voicemail message from “Graham Kilbride from Donoghue Solicitors”. This time he requested “£1500 for a cross-border certificate to release the funds”.

At this point she became suspicious and reported matters to the bank. They advised her to call 999. She then emailed my firm to tell us about the scam.

How the Victim Could Have Spotted this Scam

Some “red flags” which stand out:

  1. the call seeking money came “out of the blue”. The victim had never heard of “Graham Kilbride” or Donoghue Solicitors before
  2. the phone number he used, 0151 558 0109, was not known to her
  3. the victim was already claiming compensation with another law firm based in Nottingham. They had not been in touch to discuss settlement terms
  4. she did not have a legal contract with my firm, or any others, confirming representation.

The victim could have avoided this scam by:

  1. contacting her lawyers in Nottingham direct, using the number in their letters/ emails, to find out if her claim had settled and why she was being asked for money by another firm
  2. checked Graham Kilbride and Donoghue Solicitors’ details on our website, or by calling us direct. She would find that we do not have a “Graham Kilbride” at the firm, no one by that name has ever been employed by us, and that we do not represent her or have requested money from her
  3. checked if the phone number he used was legitimate. Even though scammers can spoof phone numbers of genuine firms, in this case, the number he used was not connected to Donoghue Solicitors in any way.

What You Should Know About How We Deal With Clients

The public should know that we NEVER:

  1. contact people “out of the blue” like this
  2. seek money from clients to “release the funds” (compensation)
  3. seek transfers of money from clients in general unless we have legal representation retainers and formal arrangements in place.

The legal retainer (known as “client care documents”) is important because it includes full contact details for the lawyer dealing with each client’s case. These can be checked easily. We are always happy to confirm our details using our widely-publicised phone numbers (0151 236 1336 or freephone 08000 124 246), email (info@donoghue-solicitors.co.uk), or by visiting our offices at 25 Hatton Garden, Liverpool (get directions here). All of these details can be independently verified elsewhere, such as on the Law Society’s website.

Action Fraud and SRA Involvement

As I have already said, we are not involved in this matter, save for our firm’s name being abused. Despite this, we:

  1. involved the authorities by reporting the incident to Action Fraud, the UK’s national reporting centre for fraud and cyber crime, and gave them the victim’s contact details (with her consent)
  2. notified the Solicitors Regulation Authority so that they can issue a scam alert on their website
  3. are publicising the matter on our website and social media feeds. That way, if anyone searches for “Graham Kilbride” or the 0151 558 0109 number he used, they will find out that he is a scammer.

I am sorry that this shameful incident occurred, and that an innocent woman has fallen prey to a scam. But I am glad that she got in touch to tell us what happened. I urge anyone who comes across similar scams to contact the law firms involved and Action Fraud immediately.

Kevin Donoghue is the solicitor director of Donoghue Solicitors.

 

Edwin Afriyie’s Appeal: The Inside Story

Last year, Edwin Afriyie failed to prove liability in his civil claim against the City of London Police at the High Court. Normally, that would be an end to the matter. But Edwin has been granted permission to take his case to the Court of Appeal. Find out how, and why, here.

By Kevin Donoghue, solicitor

Photo of Edwin Afriyie with his lawyers David Hughes, barrister and Kevin Donoghue, solicitor.

Edwin Afriyie with his lawyers David Hughes, barrister (left) and Kevin Donoghue, solicitor (right).

My client Edwin Afriyie (Ed, as I know him), has been through a lot in the past five or so years.

On 7 April 2018, City of London Police officers pulled Mr Afriyie over while he was driving his Mercedes Benz car.

Ed, who is a youth and community worker, got out of his vehicle. He attempted to provide a breath test sample when asked to do so. After the machine registered an “insufficient” result, which can happen when users do not blow hard enough, the officer administering the test asked if Ed had asthma or any other reason why he could not provide the sample. Mr Afriyie confirmed that he has “breathing issues” and tried to provide the sample again, unsuccessfully.

Matters took a turn when officers told him he was being arrested for failing to provide a sample. Then, while standing with his arms folded, one of the Force’s officers Tasered Ed in the chest. This caused Mr Afriyie to fall backwards and hit his head on a stone ledge, sustaining secondary injuries including a head injury.

Mr Afriyie was subsequently handcuffed. The police initially charged him with failing to provide a sample. Prosecutors dropped the case when magistrates demanded the body worn camera footage.

As well as physical injuries, Ed still suffers from the psychological effects of the police’s actions.

How City of London Police Responded to Edwin Afriyie’s Civil Claim

Ed Afriyie approached me for legal advice about bringing a civil action against the police. After discussing his case, I agreed to represent him on a “no win no fee” basis in a claim against the Commissioner of Police for the City of London.

He sought compensation for assault, battery, and misfeasance in public office (which is defined as “a civil tort pursued against the holder of a public office following the misuse or abuse of power”.)

The police denied liability, as they usually do when presented with a civil claim. Among other things, officers at the scene sought to justify the use of the Taser weapon by claiming that Ed:

  • adopted a fists-up “fighting stance” with “his hands in front of his body, forearms perpendicular to the ground”
  • “resisted PAVA” (commonly known as pepper spray)
  • “reached for his pockets” before being Tasered.

These points were made in officers’ MG11 witness statements. The officers who completed them signed their statements with the following wording:

This statement (consisting of [ ] page(s) each signed by me) is true to the best of my knowledge and belief and I make it knowing that, if it is tendered in evidence, I shall be liable to prosecution if I have wilfully stated in it anything which I know to be false, or do not believe to be true.

Signature:

Date: 

Court Trials

The case proceeded to trial and was initially heard at the High Court in London in 2022. The presiding judge considered all the evidence, including oral evidence from Ed and police officers. But unfortunately, the matter was not resolved because the judge fell ill before completing his reserved judgment.

As a result, the case was re-heard in its entirety on 10,11,12,16 and 17 May 2023 before another senior judge, Mrs Justice Hill. Again, Ed and some of the police officers at the scene gave evidence in person. The judge also reviewed witness statements, other written evidence, and the body worn video, some of which you can see here:

In her written judgment, dated 30 June 2023, Mrs Justice Hill found that, contrary to what the police officers claimed, Ed did not:

  • adopt a fighting stance “at any point in the incident”
  • resist PAVA
  • reach for his pockets before being Tasered.

As a result, she noted that:

The totality of this evidence created a justified concern, emphasised by Mr Hughes, that the officers had colluded together to deliberately exaggerate the Claimant’s conduct to make him appear more aggressive than he had in fact been.

It is likely that the police’s lawyers were aware of this risk, because:

The Defendant chose not to call any of these officers at trial so these issues could not be explored further with them.

Despite these inconsistencies, the police successfully defended Ed’s claim in the High Court.

In Mrs Justice Hill’s view, the police officer who Tasered Ed “honestly believed” that the use of his Taser was “necessary” and “objectively reasonable” because Mr Afriyie “was a large and muscular man” who “was clearly very agitated” and had “repeatedly shouted” that he would not allow himself to be arrested and pushed officers’ hands away.

As a result, the judge found that Ed had not proven his claims for assault, battery, and misfeasance in public office on the balance of probabilities, the legal standard which applies in civil cases.

Costs Consequences

Taking on the police is not for the faint-hearted. Losing after two trials was devastating to Ed. The time, effort, and emotional toll was huge.

Civil litigation also involves significant financial risk. This is because the usual rule in civil proceedings is that the loser pays the winner’s legal costs. But he would not have to pay them if “qualified one-way costs shifting” applied.

The police sought to have Ed pay their costs, arguing that qualified one-way costs shifting protection did not apply because he was “fundamentally dishonest” in his evidence. (This was rich, given the inconsistencies in the police’s evidence described above.) If the judge agreed, Mr Afriyie would have been personally on the hook for the police’s costs. After more than five years of litigation and two multi-day trials, these were in the tens of thousands of pounds.

Thankfully, Mrs Justice Hill dismissed the police’s bogus arguments out of hand. So, even though he lost at the High Court, Ed was not required to pay his opponent’s legal costs. And, because my firm and Ed’s barrister, David Hughes, represented him under no win no fee agreements, he did not have to pay any of his own legal fees.

In effect, Donoghue Solicitors and Mr Hughes put our money where Ed’s mouth was and swallowed his wasted costs whole.

Legal Issues Considered

Mr Afriyie was glad he avoided the serious costs consequences of losing, but he was devastated at the perceived injustice.

“It just doesn’t feel right. How can she say it was justified to Taser me?” he said.

David Hughes and I were similarly disappointed. We still believed in Ed and his case and began investigating if there was any merit in challenging the judge’s findings. This was a thorough exercise. Among other things we considered Mrs Justice Hill’s 35-page written judgment, our notes, and first-hand experience of the trial.

It was important that we took the time to do this work because, when considering an appeal, it is never enough to simply say that you disagree with the verdict. You must have a strong argument that the judge erred in law. (Keyboard warriors on social media might scream “appeal!” when they see a verdict they don’t like, but they rarely know if, how, and why an appeal can be filed, and the work and cost that goes into filing one.)

Our investigations led to an important question. Did Mrs Justice Hill err in law by:

  1. considering the Association of Chief Police Officers’ guidance on the use of Tasers, which she was addressed on during the trial, but then
  2. not applying the findings of fact to the standards set out in this guidance?

Factors to Consider in an Appeal

This was not the only thing we had to consider. We also focused on if:

  1. Mrs Justice Hill erred in
    • her interpretation of the law and
    • how it applied to the facts in the case
  2. the error, or errors, were such that they made a material difference to the outcome
  3. it mattered that Mrs Justice Hill refused permission to appeal her ruling
  4. the Court of Appeal would consider the case of sufficient importance to fit it in to their cramped schedule
  5. Ed, and his lawyers, were willing and able to shoulder the cost and financial risk of an appeal.

We knew that the appeal would not proceed without all the above. In particular, the third and fourth points were significant, and are often overlooked.

Refusal of permission to appeal from the High Court

Mrs Justice Hill’s refusal to allow permission to appeal closed one of only two possible routes. This is because applicants can only seek permission to appeal from the court where the decision was made, or the court they want the appeal heard in.

Her refusal to allow an appeal ramped up the pressure, because we now only had one opportunity to appeal, and that meant convincing the Court of Appeal to hear the case.

Importance to the Court of Appeal

Given that there are thousands of County and High Court cases decided every year, it is no surprise that the Court of Appeal is overburdened with requests for permission to appeal.

The Court of Appeal is the second highest court in the land (after the Supreme Court). Its decisions bind all lower courts, such as the High Court and County Court, effectively making new “common” (judge-made) law. This is a heavy responsibility, and one the Court takes seriously when deciding which cases to hear.

There are also practical personnel issues. If permission to appeal is granted, cases such as Ed’s are heard before a very senior three-judge panel. There are very few judges of sufficient seniority, and they are often called to hear cases elsewhere, including the Supreme Court.

So, getting your case accepted by the court is no mean feat. Persuading the court is made harder by the fact that you cannot make oral submissions unless requested by the court. Instead, applicants (known as “appellants”) file written submissions seeking permission to appeal. And, when considering applications, reviewing judges can only grant permission where:

(a) the court considers that the appeal would have a real prospect of success; or

(b) there is some other compelling reason for the appeal to be heard.

Dealing with Legal Costs in the Court of Appeal

Ed was keen to seek permission to appeal but his High Court experience meant he was concerned about legal costs. As a youth and community worker, Mr Afriyie is not eligible for legal aid or other public funds.

He was right to have costs top-of-mind. King’s Counsel’s fees alone can be £10,000 per day. Then there are the fees for so-called “junior” barristers like David Hughes, who share case preparation and presentation duties with the KC, solicitors like me (I have over twenty years’ experience in this area of law and charge accordingly) etc. It is easy to see how appeals can be prohibitively expensive for people who must pay legal fees up front.

So, to limit Ed’s exposure, despite the loss at the High Court, David Hughes (barrister), Richard Clayton (King’s Counsel), and myself, all agreed to represent him on a no win no fee basis. This means that, unless Ed is successful, we will not get paid a penny for his appeal.

This is a significant financial risk to my firm and Ed’s barristers, but one we are all willing to take to make sure Ed gets the access to justice he clearly deserves.

Contrast this situation with that of the police’s lawyers, who have virtually unlimited resources as their defence costs are funded by the taxpayer. For this, and other reasons, it is a virtual certainty that they will fight the appeal.

My Role as a Solicitor/ Project Manager

Once we received Mrs Justice Hill’s judgment, I knew that the clock was ticking. Appeals to the civil division of the Court of Appeal must be submitted within 21 days after the date of the decision the appellant wishes to appeal, and in a strict format set by Part 52 of the Civil Procedure Rules (CPR). This meant we only had a short period of time to prepare and submit written submissions, which included a “skeleton argument” outlining the reasons for appeal, together with supporting documentation, including the crucial body worn video footage (which you can see above).

I coordinated everything and filed Ed’s submission at the Court of Appeal. We focused the application for permission to appeal on (what Rt Hon Lord Justice William Davis later described as) the essence of the case:

was the police officer’s belief that is was necessary to use a Taser objectively reasonable and was the use of a Taser more than was objectively reasonable?

Outcome of Application for Permission to Appeal

On 6 December 2023, we learned that our application to appeal Mrs Justice Hill’s judgment was successful.

Mindful of his powers under CPR Rule 52.7(2), in his Order granting permission, LJ Davis confirmed that he had viewed the body worn camera footage and said:

By reference to that footage, the appeal has a real prospect of success. The judge’s reasoning was careful and detailed. However, I am satisfied that there is a sensible basis for arguing that she fell into error.

And, referring to the central argument that the judge erred in law with respect to how she dealt with the Taser guidance, he noted:

The guidance provided to police officers on the use of Tasers was referred to by the judge in connection with the appropriateness and lawfulness of the use of the Taser in this instance. It is a matter which will be of relevance in the appeal.

Format and Date of Edwin Afriyie’s Appeal Hearing

Unlike Ed’s two previous trials, the appeal hearing is scheduled to last only one day. This because it is narrowly focused on the specific issues raised by us when seeking permission to appeal.

The three-judge panel at the Court of Appeal will not hear fresh oral evidence. But it is likely that the judges will review the body worn camera footage, documents produced during trial, and other evidence, before hearing oral arguments from barristers.

It is normal for the Court of Appeal to reserve judgments, meaning that we will have to wait for a written judgment (as we did after the hearing in May 2023).

Because of scheduling conflicts, the appeal is likely to be heard in October 2024. I will update readers here in due course.

Both Ed and I are glad to continue his fight for justice. As I told The Guardian’s Emily Dugan:

“I am really pleased with the court of appeal’s decision in Edwin’s case and that he will now have the opportunity to right this wrong. I hope that if the court finds in Edwin’s favour, the City of London police – and other police forces up and down the country – will respect the decision and re-evaluate culture and training surrounding the use of Taser, particularly against marginalised communities who are disproportionately affected by such draconian uses of force by police officers.”

Kevin Donoghue is the solicitor director of Donoghue Solicitors. He specialises in serious civil actions against the police and was shortlisted for the 2023 Liverpool Law Society Outstanding Lawyer Award.

Why I Nominated Kevin Donoghue for an Outstanding Lawyer Award

 

Photo of Daniel Fitzsimmons, Director at Donoghue Solicitors, nominated Kevin Donoghue for an Outstanding Lawyer Award

Daniel Fitzsimmons, Director, nominated Kevin Donoghue for the Outstanding Lawyer Award at the 2023 Liverpool Law Society Legal Awards.

By Daniel Fitzsimmons, Director at Donoghue Solicitors

I am delighted to announce that my colleague and fellow director, Kevin Donoghue, has been short-listed for the Outstanding Lawyer Award at the prestigious 2023 Liverpool Law Society Legal Awards.

Kevin is shortlisted alongside four other lawyers:

  • Emma Charnock, Provenio Litigation
  • Lisa Edmunds, Unit Chambers
  • Matthew Taylor, Stowe Family Law
  • Thomas Prince, CG Professional

What are the Liverpool Law Society Legal Awards?

The Liverpool Legal Awards highlight “the law at its best”. They celebrate legal excellence, talent, diversity, and skill across Merseyside and beyond. 2023 marks only the tenth year the awards have been held in the Society’s 196-year history. This scarcity, along with the high calibre of law firms and lawyers involved, means that shortlisting for an Award is a considerable achievement.

Awards will be given in eight categories, including:

  • Outstanding Lawyer Award
  • Law Firm Award (100+ employees)
  • Outstanding Team Award – Dispute Resolution & Litigation
  • Others.

What is Liverpool Law Society?

Liverpool Law Society is one of the largest law societies in England and Wales. It was formed in Liverpool in 1827 and has more than 2,500 practising lawyer members.

Liverpool Law Society is based in Liverpool city centre. Its members are from Merseyside and the North West of England. The Society’s lawyers practice in all areas of law: from commercial to criminal; family to actions against the police.

Fierce competition for Legal Awards

There were a record number of nominations in the eight categories for this year’s Liverpool Law Society Legal Awards. Nominees include large and small law firms, barristers, in-house teams, legal advice centres, and individuals. Read the full list of firms and shortlisted nominees on the Liverpool Law Society website.

They were judged by an independent Panel, which is separate from the Society to avoid any appearance of bias.

The Panel included senior lawyers and experts in the area, including His Honour Judge Graham Wood KC, the Designated Civil Judge for Cheshire and Merseyside.

As the independent judging panel said when reviewing the nominations:

“Reading the outstanding applications submitted for the LLS Legal Awards makes one wonder why lawyers get such a bad press. Many had glowing testimonials from clients and peers, which is testament to the fantastic work going on, in and around Liverpool. Maybe Merseyside lawyers, of all specialties, are just the best in the UK.”

Logo for Liverpool Law Society Outstanding Lawyer Award 2023. Kevin Donoghue, solicitor, has been shortlisted for the award.

Kevin Donoghue has been shortlisted for the Outstanding Lawyer Award at the 2023 Liverpool Law Society Legal Awards.

Why Kevin Donoghue is on the shortlist for the Outstanding Lawyer Award

Among other things, the Legal Awards Judging Panel was interested in how Kevin Donoghue exemplifies the values of someone who practises “law at its best”. I have worked with Kevin for over 17 years, and can confidently say that he does this both

A big part of Kevin’s approach can be traced back to his family and pride in his “scouse” roots. He is Liverpool born and bred, comes from a working-class family, and epitomises our city’s values of hard work, determination, and grit.

These values make Kevin who he is. This is how he embodies them.

How Kevin Supports His Clients

One way Kevin shows his character is in his work involving police officers who abuse their position for a sexual purpose.

I also work in this very discrete “niche within a niche”. From experience, I can say that it takes exceptional empathy, sensitivity, and understanding. Kevin’s reputation and compassionate approach means that he is sought after by victims of this heinous police misconduct throughout the country and is known as a fearless campaigner for their rights.

I can think of no better example of how he handles these cases than his client Shannon Mulhall.

Shannon was sexually abused in a womens’ refuge by PC Simon Miller, who was a Humberside Police officer at the time.

She reported the assault to the police. Because Shannon helped the investigation, PC Miller was sacked and later convicted of the improper exercise of police powers at Grimsby Crown Court.

Getting Miller off the streets was important to Miss Mulhall. But she wanted to go further and publicise how police officers abuse their power for sexual gain. By doing so, Shannon hoped to help others who have suffered, and help to bring about societal change.

Both Kevin and Shannon knew that would mean going public and waiving her right to privacy. This would be difficult, as Shannon could expect sharp criticism, especially on social media. Kevin supported his client by meeting her at home in Scunthorpe to discuss the pros and cons, and, with her involvement, helped Sky News develop a report about the case. He even backed her by appearing in an on-camera interview himself.

Sharing Expertise Publicly

Kevin also shares his knowledge with the public, media, academics, and the wider legal community. He has a deserved reputation as a “thought leader”, especially in the specialist area of actions against the police. Although it is often difficult and time-consuming, my colleague considers it his duty to raise the profile of police misconduct, an issue which has become more well-known partly due to his efforts.

Kevin even trains other lawyers in actions against the police and police abuse of authority for sexual gain compensation claims. Some might think that sharing knowledge with competitors is bad for business. But Kevin doesn’t see it that way. He genuinely believes in helping others, and knows that, if more lawyers have the tools to succeed in these cases, we will all be better off.

Handling Risk

How Kevin deals with risk sets an example for everyone in the firm. Civil litigation is an inherently risky business. Often, both sides are convinced that they are right, even though one of them must be wrong. And, in claims against the police, there is a massive imbalance in resources: the police are funded by the state; the individual suing them is not.

Most of our cases are funded by conditional fee agreements (also known as “no win no fee” agreements). As you can read on our Funding Options and No Win No Fee Police Claims page, no win no fee agreements help people get access to justice by delaying payment for legal fees until after settlement (or success at trial). But what if the claimant does not win? Then the lawyer, who has often invested years of time (which could have profitably gone elsewhere), and thousands of pounds of billable hours, gets nothing.

This risk means that you must have courage in your convictions. As the founder and a director at Donoghue Solicitors, Kevin shows this by putting his own money where his client’s mouths are. For an example, see his long-running case of Edwin Afriyie. Mr Afriyie was Tasered by City of London Police officers. He lost his case at the High Court but has sought permission to appeal. We await confirmation that the Court will take the case, which is funded by a “no win no fee” agreement, a risk Kevin is willing to take to help Edwin and others similarly affected.

Helping the Next Generation of Lawyers

Lastly, Kevin has shown the way in his own career path.

He qualified as a Chartered Legal Executive before becoming a solicitor and believes in helping the next generation of lawyers “earn their stripes” too. He invests in his staff by being generous with his time, along with practical and financial assistance. This support directly led to me, Kemmi Alfa, and Jack Hudson qualifying as Chartered Legal Executives. We could not have done it without him.

On a more personal note, I’m thrilled for Kevin. He’s a good friend to me and my family. He is an inspiration to me and my colleagues. He is a fearless lawyer, who gives his all for his clients and uses seemingly boundless reserves of energy to help them get the justice they deserve. It’s fantastic that he is being recognised for his contribution to the legal profession.

I look forward to celebrating Kevin’s achievements at the Liverpool Law Society Legal Awards dinner on 9 November.

Will the Police Get Killer Robots?

Photo of Kevin Donoghue, a solicitor who considers the latest news from America about the police getting killer robots.

San Francisco police will soon have “killer robots” on their streets. Will we be next? Kevin Donoghue considers the situation in this blog post.

By Kevin Donoghue, solicitor

It is often said that when America sneezes, Britain catches a cold. Well, if that’s true, a recent development in San Francisco might have us all reaching for the tissue box.

As this story in Wired describes, the San Francisco Board of Supervisors recently gave the police “the right to kill a criminal suspect with a teleoperated robot if they believe there is an imminent threat of death to police or members of the public.”

What are teleoperated robots?

According to TechTarget.com:

teleoperations, also called telerobotics, is the technical term for the remote control of a robot. In a telerobotic system, a human operator controls the movements of the robot from some distance away. Signals are sent to the robot to control it; other signals come back, telling the operator that the robot has followed the instructions. These control and return signals are called telemetry.

This technology has been around for a while. It will be familiar to those who watch ITV’s Trigger Point, where police explosives officers use telerobotics to counter terrorist bomb threats.

Police forces and the military worldwide are comfortable with robots for tasks like this, using tools like the Remotec F5A bomb disposal robot. And they have other uses too. For example, San Francisco Police also use telerobotics for search-and-rescue missions, which could be life-saving in an earthquake.

Why should we be concerned?

The problem with teleoperated robots is that the technology can be adapted for use-of-force roles. Again, referring to San Francisco, the police already have robots which can be equipped with a shotgun, explosives, or pepper spray emitter.

And the technology is evolving rapidly in a sinister way.

As the Wired story describes, Axon, the manufacturer of Taser weapons popular with police forces the world over, plans to add weapons to drones.

In an even more dystopian twist, police in New York and Germany are already using legged robots. And in China, they are working on teaming four-legged robots with drones to chase down and apprehend suspects. Most frightening of all is that an American company, Ghost Robotics, is developing legged robots which carry guns.

What happens when the police get new “kit”?

It’s no exaggeration to say that police officers love their “kit”. Once they get their hands on Tasers, spit hoods, incapacitant sprays, and other ways to use force, they invariably use them. As I pointed out in my three-part blog post: Why did the Boys in Blue Turn into the Boys in Black? our police forces are now equipped with so much military gear that they are often indistinguishable from an occupying army. There are several reasons for this. They include the threat (real or imagined) of terrorism, budget cuts, and the rapid development of law enforcement technology.

But weaponising the police is problematic. Spit hoods are a prime example. Police Federations promoted their adoption despite no official approval from the government’s Centre for Applied Science and Technology and plenty of evidence showing that spit hoods were dangerous, and often deadly.

So, once police officers got hold of them, it was inevitable that they would rush to use their exciting new “kit” instead of applying their Code of Ethics and the police National Decision Model, which may have limited the use of force. (These two elements are supposed to combine to require that a police officer’s use of force should be “necessary, proportionate, and reasonable in all the circumstances”.)

How the police use their kit

In practice, the Code of Ethics is often abandoned, especially in London when dealing with black and mixed race individuals who are disproportionately targeted by weapons-wielding police officers.

And, as the Home Office found, between April 2019-March 2020 Metropolitan Police officers used taser guns, pepper spray, batons, and spit hoods on pregnant women, or those believed to be expecting, 2,556 times between 2018-2021. This was a disproportionately high amount compared to 15 other forces who responded to the request for data. The rest used such force on 3,818 girls and women during the same period.

Instead of being trigger-happy, the police could, and should, be practising de-escalation techniques, such as those used in other parts of the world. For example, as this BBC report describes, in Japan the police “prefer to rely on their skills in martial arts – and futon rolling – rather than using weapons”.

The false security of chains of command

A common refrain from the police is that every piece of new use-of-force kit (spit hoods, Tasers, killer robots, guns etc.) will only be used as a last resort, after thorough training, and/or careful consideration by senior officers. This might convince some, but I am sure, the family of Jean Charles de Menezes would not be comforted. (You might remember that former Commissioner Dame Cressida Dick was in charge of the operation when Mr de Menezes was killed by armed Metropolitan Police officers while sitting on a London Underground train.)

This is how the police will try to convince the public that they need killer robots

The police, and its union the Police Federation, have a well-known playbook for getting hold of more use-of-force kit. It was used successfully with spit hoods:

  1. Hype up the threat. Don’t let the fact that infections through spit transmission are rare get in the way of fear-mongering. (Hepatitis C and HIV cannot be transmitted by spitting.)
  2. Make the public and politicians afraid. Tell them that they will be responsible if officers die.
  3. Propose a solution which (surprise, surprise) involves the use of more deadly “kit”. Spit hoods are convenient, inexpensive, and readily available
  4. Get rank-and-file officers on board. Do it despite the risk to their own safety from using force rather than well-established, and safer, de-escalation techniques
  5. Create unbearable pressure in the media (and especially social media) to force politicians and senior officers to do what they want. Drive the narrative with media friendly names (spit hoods were called “spit guards” by the police advocates during media appearances.) I have been involved in countless radio phone-ins where the spit hood debate raged and observed this first-hand
  6. Get the kit and use it as often as possible to increase visibility and a false sense of security in the public.

Knowing this, you can see how the same techniques would work for teleoperated “killer” robots:

  1. Hype up the threat. Tell people that terrorists are among us. They can make weapons of mass destruction easily. And, aside from terrorists, tell the public that guns are more common on our streets.
  2. Make the public and politicians afraid. It’s not safe out there. We don’t want to become like America, do we?
  3. Propose a solution which (surprise, surprise) involves the use of more deadly “kit”. Robots are already used by the Army and police force bomb squads. The police are merely proposing that they expand the abilities of robots to include use-of-force
  4. Get rank-and-file police officers on board. Tell them that with killer robots in place officers can go home safely
  5. Create unbearable pressure in the media (and especially social media) to force politicians to do what they want. Drive the narrative with media friendly names (For example, refer to killer robots as “officer-operated public safety devices”, or some other vague term.) This both-sides debate is meat and drink for many day-time radio hosts looking to fill hours
  6. Get the kit and use it as often as possible to increase visibility and a false sense of security in the public. Seeing a robot tackling criminals could suggest to many that the police are doing something about crime.

What happens next?

Britain’s police will be watching the American “killer robot” debate with great interest. There are massive financial incentives for companies like Axon to develop this technology. Those, coupled with their existing, and lucrative, connections within our police forces, mean that it is only a matter of time before weaponised teleoperated robots become part of the sales pitch to Chief Constables and high-level procurement staff.

It is a matter for the public to decide if we want to learn from how the police became weaponised in the past or repeat the same mistake.

Kevin Donoghue is a specialist solicitor who represents victims of police misconduct in their civil actions against the police.

Is police sexual misconduct “abuse”?

 

Photo of Kevin Donoghue, solicitor, who explains police sexual misconduct abuse in this blog post.

Kevin Donoghue reviews the law in police sexual misconduct matters in response to a recent government report and question raised on social media.

By Kevin Donoghue, solicitor

This week His Majesty’s Inspectorate of Constabulary and Fire & Rescue Services published a report titled: “An inspection of vetting, misconduct, and misogyny in the police service.”

It found that hundreds of police officers who should have failed vetting checks may still be in the job.

Sadly, this is not news. As I pointed out in this October 2019 blog post, police vetting failures have been a problem for years, and mean that forces are failing in their duty to protect the public.

The HMICFRS report noted that, “of 725 sample cases closely examined in the review, there were concerns about 131 officers cleared to serve in police forces – but the watchdog said the true total could be much higher.”

This means that at least 18% of police officers have issues which ought to disqualify them from serving.

What kinds of issues? As the BBC noted, Matt Parr, the report’s author and HM Inspector, found evidence of “one officer convicted of domestic abuse and one accused of sexual assault were among those accepted.”

Importantly, the report highlighted that misogyny (the dislike of, contempt for, or ingrained prejudice against women) and predatory behaviour by police officers is rife. And it is not limited to abusing members of the public. Serving police staff and officers are frequently on the receiving end of sexual abuse by their own colleagues. This concerning issue was highlighted in a key section of the report, which is worth quoting in full:

One-to-one telephone interviews with survey respondents revealed misogynistic and predatory behaviour

Of the 11,277 officers, staff and volunteers who responded to our survey (this was the highest ever response to one of our surveys), 668 volunteered for follow-up interviews with us. We interviewed 42 of them (all except one were women). Their accounts included sensitive detail, some of which amounted to allegations of criminal offences. These included female officers and staff alleging sexual assault by male colleagues in the workplace and at social events. Other, less serious matters (some of which may nevertheless amount to misconduct, and in some instances possibly gross misconduct) included:

  • senior male officers pursuing women in lower ranks for sex, including via the force email system;
  • viewing pornography at work – for example, male officers (including supervisors) viewing pornography on suspects’ phones (not as part of investigations) and inviting other officers to view the images on screen;
  • sending pornography to female colleagues’ phones;
  • inappropriate sexual comments by male officers, including comments about a victim’s breasts, comments about vulnerable sex workers who were victims of crime, and many other disparaging and insulting comments about female victims in general;
  • at work-related social events, a senior male officer pestering female colleagues for sex. He sought to take advantage of those who he could see had clearly been drinking alcohol;
  • male officers making a point of stopping cars driven by women they regard as pretty, a practice they referred to as “booty patrol”; and
  • male officers, including supervisors, making sexually explicit comments about female members of the public.

Telephone interviewees told us that, in many cases, the perpetrator was someone who had previously been reported for similar behaviour, which either hadn’t been taken seriously or hadn’t been thoroughly investigated.

Much of the sexual misconduct the interviewees described could be an indicator of similar conduct towards members of the public.

Social media reaction to the HMICFRS report

Knowing all this, how do you think some on social media reacted? Well, one Twitter user, “@pillarsofjusti1”, asked this about police officers’ abuse of position for a sexual purpose:

OK, but how is a male cop having a consensual relationship with a grown woman “abuse”? I dont get it. Also how is it “misogyny” to have a consensual relationship with a grown up adult woman? Unprofessional yes, but how is it any kind of abuse? I want to believe

They went on:

I would argue this person is actually spreading a bit of the old “rape propaganda” here. In terms of cops having relationships with women, how can there be any “abuse” if the relationship is between consenting adults? volenti non fit injuria , what is the abuse exactly?

The Twitter profile for Pillarsofjustice says: “I was falsely accused of rape and I want justice, for me & all the other men & women falsely accused of sex offences. The government enables false accusers.”

It is possible that this person may have a biased viewpoint. But, putting that aside, are they right that there is no “abuse” in a relationship between what they describe as “consenting adults”, even if those involved are police officers and their colleagues or members of the public?  Let’s look at what the law and practice say.

Defining police sexual misconduct abuse

The issue of police sexual misconduct and abuse is at the heart of the above tweets. A 2016 Her Majesty’s Inspectorate of Constabulary (HMIC, now HMICFRS) report described this grave problem as the “most serious” form of corruption facing police forces in England & Wales.

This is because this abuse of power “fundamentally betrays the trust that communities and individuals place in the police”. It has various names in official reports, all starting with “police abuse of”, and ending with:

  • powers for a sexual purpose
  • position for a sexual purpose
  • authority for sexual gain
  • authority for a sexual purpose.

Police abuse of position for a sexual purpose is briefly defined by HMICFRS as:

“behaviour by a police officer or police staff member, whether on or off duty, that misuses their position, authority or powers to pursue a sexual or improper emotional relationship with a member of the public.”

That definition was expanded upon in another HMICFRS report, “Shining a light on betrayal: Abuse of position for a sexual purpose” to include:

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.”

The key takeaways from that longer definition are in bold. They are that:

  1. “Any behaviour” is deliberately broad. It includes initiating or responding to perceived (even if not actual) sexual or improper emotional contact with the public
  2. Consent is not a factor. Police officers or staff who abuse their position for a sexual purpose are not deemed to have consent for the purposes of a civil claim or disciplinary proceedings. And, as I describe later, criminal proceedings can follow.

How police officers abuse the imbalance of power

Why do various HMICFRS government inspectors agree that this form of police sexual misconduct is an abuse which must be vigorously addressed?

The answer is because of a fundamental truth: there is an imbalance of power between police officers and:

  • the public
  • their colleagues (where there is a perceived or actual imbalance).

Police officers are not just anyone. They are agents of the state, who have vast, and increasing, powers they can abuse to control or coerce individuals to fulfil their corrupt desires.

For an example, read the case report of my client Samantha McTavish. She bravely came forward to raise public awareness of police sexual misconduct and abuse after being groomed by a Devon & Cornwall Police officer.

As I explained in this blog post (How Police Officers Groom People for Sexual Abuse), the officer who abused Ms McTavish used a well-known “playbook” to exploit his vulnerable victim for sex. The abuse of, and imbalance of, power meant that Sam could not consent. It did not matter that the officer, or others, argued that it was consensual. As Sam said, “I should never have been put in that position to consent or otherwise. He shouldn’t have come to my house pursuing sex.”

(As a side note it is interesting that Devon and Cornwall Police is the same police force which, the recent HMICFRS report noted, found that: “Without exception, every female respondent interviewed in the cultural audit reported experiencing some form of sexual harassment or discrimination in the workplace.” Clearly, that force has internal and external issues with which to contend.)

And it is important to understand that this form of corruption does not have to result in intimacy. As my client Kristina O’Connor experienced, being propositioned by Metropolitan Police officer DCI James Mason during an official interview and subsequent text messages was grounds for a finding of gross misconduct against him.

How the law handles police abuse of position for a sexual purpose

It is important to understand that in:

  1. criminal law
  2. civil law
  3. police misconduct disciplinary hearings

there are different rules and tests when dealing with police sexual misconduct and abuse.

1.     Criminal offence: misconduct in public office

Police officers found to have abused their position for a sexual purpose can be convicted of the serious criminal offence of misconduct in public office, which is defined by the Crown Prosecution Service as:

The offence is committed when:

  • a public officer acting as such;

  • wilfully neglects to perform his duty and/or wilfully misconducts himself;

  • to such a degree as to amount to an abuse of the public’s trust in the office holder;

  • without reasonable excuse or justification.

Proving this offence requires the high criminal standard (beyond reasonable doubt). Convictions can result in prison time.

2.     Civil law tort: misfeasance in public office

In civil cases, the relevant “tort” (a civil wrong) which gives rise to damages is misfeasance in public office.

Applying the tests laid out in Three Rivers DC v Bank of England, misfeasance in public office is shown when:

  • the person whose conduct is in question is a public officer, and the conduct was an exercise of his or her power in that capacity;
  • s/he intended to injure the claimant by the exercise of that power, or knowingly/ recklessly acted in excess of that power;
  • by this the officer caused damage to the claimant; and
  • the officer knew (or anticipated) that the act would probably cause damage of the kind actually caused.

Misfeasance in public office is proven on the lower legal standard (the balance of probabilities) and can result in civil compensation claims against the police force. Read more about this and the law in civil actions against the police by clicking on the link.

3.     Police disciplinary and misconduct proceedings

While there is no direct counterpart to these criminal and civil aspects in police disciplinary matters, police misconduct panels can find gross misconduct for breaches of the police’s Standards of Professional Behaviour.

For example, in this blog post I explain how a Disciplinary Panel found the aforementioned DCI Mason liable for breaches of “Honesty & Integrity, Authority, Respect & Courtesy and Discreditable Conduct.” (Shamefully, despite all eight allegations being proven, Mason kept his job in the Met.)

The police have even included a specific reference to police abuse of authority for sexual gain in the College of Policing’s Code of Ethics. While it does not have the full force of law, page 6 of the Code states that police officers and staff must:

“not establish or pursue an improper sexual or emotional relationship with a person with whom you come into contact in the course of your work who may be vulnerable to an abuse of trust or power.”

Officers dismissed for gross misconduct can be put on the police’s “barred list”. But, despite what the police and some in the media would have you believe, this does not necessarily end their careers as I explain here: What You Should Know About the Police Barred List.

Why volenti does not apply (and is misunderstood)

“Pillarsofjustice” raised an interesting legal point in their second tweet: “volenti non fit injuria, what is the abuse exactly?”

Volenti non fit injuria is a Latin term meaning, “to a willing person, it is not a wrong.” It is a legal concept which says that a person who knowingly and voluntarily risks danger cannot recover damages for any resulting injury.

As I have shown, police abuse of position for a sexual purpose means that victims cannot provide consent in civil and police misconduct cases due to the imbalance of power.

Consequently, volenti does not apply.

Public understanding of police abuse

Pillarsofjustice raised important questions in their tweets. I hope that by detailing the law, and official police guidance, it is clear to them and others reading that police sexual misconduct is a serious form of abuse which must be stamped out.

 

Kevin Donoghue is a solicitor and specialist in police abuse of authority for sexual gain compensation claims. As you can read on Mr Donoghue’s profile page, he has considerable experience in this area of law and trains other lawyers in it.

Legal professionals can learn more about this topic in Kevin’s recent MBL Seminars training course: An Introduction to Sexual Misconduct Claims Against the Police & Other Detaining Authorities.

Can the police arrest protesters during the Queen’s Funeral and the period of Royal Mourning?

 

Photo of Kevin Donoghue, solicitor, who reviews how the police treat protesters during the Queen's funeral and period of Royal Mourning.

Solicitor Kevin Donoghue considers the law relating to the police’s treatment of protesters during the Queen’s funeral and period of Royal Mourning.

By Kevin Donoghue, solicitor

I was interviewed by ITV news today about the police’s treatment of protesters during the period of Royal Mourning following the Queen’s death.

The period of mourning started on 9 September and is expected to continue until 26 September.

During that time, the Queen’s coffin travelled from Balmoral to Edinburgh to lie-in-state. A journey south will result in a further period of lying-in-state in Westminster Hall, before the Queen’s funeral on Monday 19 September.

Protesters have lined procession routes, and, on occasion, voiced their opposition to the monarchy, and, in one case, Prince Andrew specifically:

How the police dealt with protesters

The police have responded in various ways. These range from threatening protesters like Paul Powlesland with arrest for holding up a blank piece of paper, to arresting them for a breach of the peace or on suspicion of a statutory offences such as s.5 of the Public Order Act 1986 or the Police, Crime, Sentencing and Courts Act 2022 (PCSC).

This is despite the Metropolitan Police’s DAC Stuart Cundy saying:

“The public absolutely have a right to protest and we have been making this clear to all officers involved in the extraordinary policing operation currently in place.”

As we continue through this period of mourning, the police and public alike might want to review the relevant laws and think about how they impact our democratic right to freedom of expression.

What is the law around breach of the peace?

The law surrounding breach of the peace cases is widely misunderstood. In this blog post I sought to clarify it for the benefit of the police, hoping that they would learn from it and stop wrongfully arresting people. (It appears my efforts were probably in vain.)

An important thing to know is that a breach of the peace is a common law power. This means that it is judge-made, rather than from Parliament.

As a result, the definition has changed over the years. But Lord Justice Watkins gave a useful definition in the important case of R v Howell. He said a breach of the peace is committed:

“… whenever harm is actually done or is likely to be done to a person or in his presence to his property; or a person is in fear of being harmed through an assault, an affray, a riot, unlawful assembly or other disturbance.”

Why can the police arrest people for a breach of the peace?

The right to arrest for a breach of the peace is granted to “every citizen”, including members of the public, police officers, and security guards (as I described in this blog post about Simon Brodkin’s arrest at a Conservative Party conference).

As Lord Diplock said:

“Every citizen in whose presence a breach of the peace is being, or reasonably appears to be about to be, committed has the right to take reasonable steps to make the person who is breaking or threatening to break the peace refrain from doing so; and those reasonable steps in appropriate cases will include detaining him against his will.”  (Albert v Lavin [1982] AC 546)

The police are treated like ordinary citizens under this common law right. They have no special powers of arrest to prevent a breach of the peace. Lord Watkins explained in Howell that the power of arrest can be exercised in three situations:

  1. where the breach is committed in the arrestor’s presence;
  2. where the arrestor reasonably believes that such a breach will be committed in the immediate future by the person arrested, even though at the time of the arrest no breach had been committed; and
  3. where a beach of the peace had been committed and it is reasonably believed that a renewal of it is threatened.

What happens if the police don’t follow the law when arresting someone for a breach of the peace?

Police officers who fail to apply breach of the peace law correctly when arresting someone potentially expose their forces to compensation claims. Contrary to what the police and media may have some readers believe, compensation is not a windfall payment. Rather, the primary reason civil courts order that compensation is paid is to put the victim of unlawful police action in the pre-incident position.

Claimants can seek damages for false imprisonment, personal injury (usually assault & battery), and other things. Read how I helped Miss B and Gary Wilson with their breach of the peace compensation claims by clicking on the links.

How the police and courts deal with protesters

Protesters arrested for a breach of the peace should be brought before the Magistrates Court at the earliest opportunity to comply with the Human Rights Act 1998, which gives effect to Article 5(1)(c) of the European Convention on Human Rights.

But, it is important to note, there is an overlap between common law (breach of the peace) and statutory laws, such as the Public Order Act 1986 and Police, Crime, Sentencing and Courts Act 2022.

In my experience, the police refer to both breach of the peace and the Public Order Act to deal with protesters. I expect this is because rank-and-file officers are comfortable with using them as grounds for arrest. As Lord Justice Watkins said in Howell, when explaining the circumstances of that case:

It is possible that Pc Hammersley was in the heat of the moment confusing his power of arrest at common law for a breach of the peace with a similar power of arrest for offensive conduct conducive to a breach of the peace contrary to s 5 of the Public Order Act 1936. However, the appellant was not charged with this statutory offence. Accordingly, and for the additional reason that the appellant was told at the police station on arrival there that he had been arrested for ‘a breach of the peace’, we think it was open to the jury when deciding whether there had been a lawful arrest to have regard to the constable’s power at common law only. Since this was the effect of the manner in which the jury was directed on this matter by the judge we are not, strictly speaking, called on to decide whether an arrest for a breach of the peace at common law would serve also to constitute a lawful arrest under s 7(3) of the 1936 Act for committing an offence under s 5. But we feel it right to say our tentative view is that it would serve this dual purpose, seeing that a breach of the peace is involved in both offences.

But, as the case of Symon Hill (which I refer to later) shows, the police’s use of both common and statutory laws to justify arrest might change as training manuals are updated to include the new Police, Crime, Sentencing and Courts Act.

Legal consequences of a finding of breach of the peace/ s.5 Public Order Act

It is important to note that, in England and Wales, a breach of the peace is not a criminal offence. (This is not the case in Scotland- there a protester has been criminally charged for heckling Prince Andrew on Monday.)

Proceedings alleging a breach of the peace in England and Wales are brought using a complaint to justices in the Magistrates Court. Justices have the power to issue a bind over.

By contrast, a breach of section 5 of the Public Order Act is a criminal (summary) offence, for which the defendant can be fined.

Section 5 of the Public Order Act states that:

(1) A person is guilty of an offence if he/she:

(a) uses threatening [or abusive] words or behaviour, or disorderly behaviour, or

(b) displays any writing, sign or other visible representation which is threatening [or abusive],

within the hearing or sight of a person likely to be caused harassment, alarm or distress thereby.

“A person” can be the arresting police officer if the behaviour complained of is more than they should be used to. (DPP v Orum).

It is possible to defend these criminal proceedings though. If arrested and charged, a defendant can argue:

(a) that he had no reason to believe that there was any person within hearing or sight who was likely to be caused harassment, alarm or distress, or

(b) that he was inside a dwelling and had no reason to believe that the words or behaviour used, or the writing, sign or other visible representation displayed, would be heard or seen by a person outside that or any other dwelling, or

(c) that his conduct was reasonable.

Can the police continue to detain protesters accused of a breach of the police?

Despite the fact that the common-law breach of the peace is not a crime, the courts have approved the police’s approach to treat it like one. This means that the detention rules in the Police and Criminal Evidence Act (as amended) apply.

One of those is that the police must justify continuing detention. As I explained in this case report about my client Gary Wilson:

In the case of a breach of the peace, the Police could only justify continuing his detention if they anticipated Gary would commit a further breach of the peace (on their version of events, which was not correct) shortly after releasing him.

Consequently, the police can, and should, release people immediately unless:

  1. “there is a real (rather than fanciful) apprehension based on all the circumstances that if released the prisoner will commit or renew his breach of the peace within a short time” AND
  2. that the officer making the decision for continued detention must have an honest belief that further detention is necessary in order to prevent a breach of the peace, and
  3. that there must be, objectively, reasonable grounds for that belief.

(See Chief Constable of Cleveland Police v McGrogan [2002] EWCA Civ 86.)

The effect of new statutory powers under the Police, Crime, Sentencing and Courts Act

The Police, Crime, Sentencing and Courts Act (2022) is a new Act of Parliament which has the potential to greatly increase the police’s powers to deal with protesters in England and Wales.

This is because they now have broad powers to limit protests and the actions of protesters. For example, the police can ban what they consider “unjustifiable” noisy protests.

These even include protests by a single person. So far during the period of Royal Mourning events, most protesters would probably be classed that way. The new law expands the police’s powers under s.14 of the Public Order Act to say that the police can impose conditions on one-person protests when a senior officer reasonably believes:

(a) that the noise generated by the person carrying on the protest may result in serious disruption to the activities of an organisation which are carried on in the vicinity of the protest, or

(b)that—

(i)the noise generated by the person carrying on the protest may have a relevant impact on persons in the vicinity of the protest, and

(ii)that impact may be significant.

And

(7) For the purposes of subsection (1)(b)(i), the noise generated by a person carrying on a one-person protest may have a relevant impact on persons in the vicinity of the protest if—

(a) it may result in the intimidation or harassment of persons of reasonable firmness with the characteristics of persons likely to be in the vicinity, or

(b) it may cause such persons to suffer alarm or distress.

(8) )In considering for the purposes of subsection (1)(b)(ii) whether the noise generated by a person carrying on a one-person protest may have a significant impact on persons in the vicinity of the protest, the senior police officer must have regard to—

(a) the likely number of persons of the kind mentioned in paragraph (a) of subsection (7) who may experience an impact of the kind mentioned in paragraph (a) or (b) of that subsection,

(b) the likely duration of that impact on such persons, and

(c) the likely intensity of that impact on such persons.

(My emphasis in bold.)

How the police misuse the Police, Crime, Sentencing and Courts Act

It would appear that the police’s new powers have gone to their head, if a recent case is anything to go by.

Symon Hill said he was arrested under the PCSC Act for calling out “Who elected him?” when the Proclamation that Charles was King was read out in Oxford. This, despite Mr Hill saying,

I doubt most of the people in the crowd even heard me. Two or three people near me told me to shut up. I didn’t insult them or attack them personally but, responded by saying that a head of state was being imposed on us without our consent.

Apart from these comments, which (Mr Hill says) were barely heard, it would appear that there was nothing else he did which could be interpreted as meeting the threshold of a “serious disruption” or cause a relevant, significant impact on people “of reasonable firmness”. And yet, the police sought to use their new powers under the PCSC rather than their existing ones under s.5 Public Order Act or, simply argue breach of the peace.

It will be interesting to find out if they intend to prosecute Mr Hill, and, if so, have their reasons for arrest under the PCSS tested in court.

Chilling Effects of the PCSC

The new Act includes rules which, combined, could chill free speech.

For example, it cements the police’s power to limit protest times and locations. This, coupled with the limit on “noisy” protests, means that the police now stop people using loudspeakers in Parliament Square and the surrounding areas. (This is especially relevant during the period of mourning, as the Queen will lie-in-state in Westminster Hall, which is part of the Parliamentary Estate.)

The Act also makes the existing common law offence of “public nuisance” into a statutory offence. This means that, as with a breach of section 5 Public Order Act, public nuisance is now a criminal offence. It is punishable by up to 10 years in prison.

And, in a worrying development, the Home Secretary now has powers to “clarify the meaning of serious disruption”, bypassing Parliamentary scrutiny entirely.

Democracy on Display

It is said that Queen promoted the cause of democracy abroad through her work with the Commonweath. So, it is ironic that one of the last legislative duties the Queen performed was to make the Police, Crime, Sentencing and Courts Act the law of the land (on 28 April 2022).

The right to peaceful protest and freedom of expression are cornerstones of thriving democracies. How the government and police use their existing and new-found powers to deal with protesters will show what they think of our democratic rights. The world is watching.

 

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

Why Sorry Should Not be the Hardest Word

Kevin Donoghue, solicitor, explains why sorry seems to be the hardest word for the police.

Why don’t the police say sorry? Kevin Donoghue, solicitor, describes why they should change their approach to apologies here.

By Kevin Donoghue, solicitor

I recently settled a police abuse of authority for sexual gain compensation claim against Greater Manchester Police (GMP). My client, a vulnerable victim of crime, was “groomed” into a sexual relationship by PC Simon Rose, a (then-serving) police officer. Rose is currently serving a three-year sentence for his criminal misconduct, having been found guilty of misconduct in public office and attempting to pervert the course of justice.

GMP paid my client £20,000 compensation and her legal costs but refused to apologise for the heinous acts of their employee.

The force’s stance is morally reprehensible, financially wrong-headed, and politically naive. This is why.

What happened?

“Jane” (name changed to preserve her anonymity), first came into contact with Greater Manchester Police’s PC Simon Rose after reporting that she had been raped at knifepoint and abducted by two men.

As this report in the Manchester Evening News points out, Rose was a “specially trained officer involved in dealing with rape and sexual assault allegations.” In that special role, he gained special access to vulnerable people like my client and, in this case, went to her home alone from the first visit. PC Rose was professional at first and followed a well-known playbook used by police sexual predators, which I describe here: How Police Officers Groom People for Sexual Abuse.

Understandably, Jane was distressed by what had happened. PC Rose took her to a local police station to give an interview. She then went to hospital to get forensic exam.

Rose later shared his personal phone number with her, despite there being no policing reason, and no longer having conduct of the investigation. Over time, he developed a sexual relationship with Jane.

So effective was his grooming that, even when he admitted being in a relationship with another woman and saying that he would not leave her, my client continued to keep in touch with the serving officer. PC Rose showed that he was aware that what he was doing was wrong because he constantly reminded her to delete messages and that “we didn’t know each other”.

The police officer’s sexual misconduct only came to light when he was part of a three-officer arrest warrant team sent to conduct a raid at Jane’s home. (She was not involved in any criminal behaviour: her address was wrongly given to the authorities by a wanted man.) PC Rose only learned of the address while the police were on their way to execute the warrant. He refused to help execute the arrest warrant and asked his colleagues to disregard any evidence they found which could result in his dismissal. This resulted in the raid being abandoned and Rose’s misconduct was uncovered.

Rose fought the allegations all the way to a Liverpool Crown Court trial. My client gave evidence in that intimidating venue, compounding her emotional distress and upset. As the MEN report points out:

In an impact statement today, the victim told how they had a close emotional relationship after their initial sexual encounters and when he suddenly ended all contact she did not know what she had done wrong and felt used and upset. She said the lies he had told during the trial “were horrible. I knew they were wrong.” The woman also said that she has been left with sleep problems and panic attacks and her relationship with her partner and children has been adversely affected.

 

How Greater Manchester Police Handled My Client’s Civil Compensation Claim

Jane first came into contact with PC Rose as a vulnerable victim of sexual crime. Now, as a result of one of the force’s serving officers, she was victimised again.

Her psychological distress and mistrust of the police were entirely understandable and reasonable. But GMP needed my client to help them bring PC Rose to justice. She was the only person who could attest to his criminal sexual misconduct.

Knowing this, the Independent Office for Police Conduct and force’s officers sought, and obtained, a witness statement and Jane’s subsequent co-operation in the criminal proceedings. Despite her own misgivings, Jane fully co-operated with the police, IOPC, and CPS. And, when Rose refused to accept wrongdoing, she bravely gave live evidence in his criminal trial, during which she was subjected to a brutal cross-examination by his defence barrister.

You would think that, after helping bring a sexual criminal to justice, the police would appreciate her pivotal role when it came to civil proceedings.

Sadly not.

Instead, when Jane instructed me to bring a civil action against the police, we were met with delays and denials. While the force’s lawyers accepted the jury’s findings (how could they not?), they did not accept that civil liability flowed from it. The police referred to the well-known case of Three Rivers DC v Bank of England [2006], which you can read more about here.

In essence, the force argued that my client’s case did not satisfy the Three Rivers legal tests because, among other things, they argued that:

  1. she could not prove loss or damage
  2. PC Rose did not target her with malice
  3. the officer’s misconduct was not based in his functions as a public officer.

The police’s denial of liability meant that, after all Jane’s help in bringing Rose to justice, they had no further use for her.

Worse still, the force refused to compensate my client or apologise for the actions of their officer.

I assured Jane that, despite the police’s stonewalling, I had every confidence in her case, and would take it as far as necessary.

I am happy to confirm that, with Jane’s brave, determined help, I negotiated a £20,000 plus legal costs settlement which reflected just compensation under our civil court system.

Disappointing Failure by the Police

The civil courts do not provide claimants with a way of forcing defendants to apologise. Instead, they order compensation to put the claimant in the position as if the wrong causing the loss had never happened, knowing full well that compensation cannot adequately reflect the pain, suffering, and distress victims like Jane suffer.

Despite this, as explained here, apologies can be offered by the police at any time, outside of any court settlement or order. They can impress judges and juries and to help restore public confidence, show savvy media relations, and lead by example, apologies can go a long way.

And yet, in Jane’s case, despite ultimately paying compensation, Greater Manchester Police stubbornly refused to apologise. Instead, GMP Deputy Chief Constable Terry Woods said after PC Simon Rose’s conviction:

“It is imperative that police officers are held accountable for their actions.

“We treat allegations of misconduct with the utmost seriousness and, whilst this investigation has been led by the IOPC, we have supported investigators fully.

“I am deeply disappointed by this officer’s conduct and, now the trial has concluded, misconduct proceedings will commence.”

He’s not the only disappointed one. My client was “deeply disappointed” by Woods’ shameful failure to say sorry, and for the force to handle her claim with the respect and dignity she clearly deserved.

Financial Imperative to Apologise

GMP’s refusal to accept responsibility and apologise for the actions of one of its officers makes DCC Terry Woods’ words sound hollow.

And it could potentially cost them. Recently, the National Police Chiefs Council complained that cuts under Conservative-led governments have negatively impacted policing.

As a National Police Chiefs Council spokesperson said:

“Detection and charge rates for a range of crimes have fallen over the past five years.

“This has been impacted by austerity and the loss of thousands of police officers and staff, increasing complexity of policing and crime, growing demand related to mental ill health and impact of backlogs in the court system.”

While there may be some truth to that, when considering civil claims, it is important to remember that an apology costs nothing. And, in cases where aggravated damages are awarded, a genuine, heartfelt apology can save the police money when compensation is considered.

This is because judges and juries take into account how the police conducted themselves during the civil court proceedings when considering aggravated damages. Civil courts take a dim view of forces who refuse to accept responsibility, especially when they act in a “high-handed, insulting, malicious, or oppressive” way.

Regulator and Political Interest in How the Police Conduct Claims

Lastly, embracing apologies makes sense from a management and political perspective.

Greater Manchester Police has been in “special measures” since December 2020. This means the force is subject to greater oversight from HM Inspectorate of Constabulary and Fire & Rescue Services. How GMP handles civil claims ought to interest this regulator and our politicians, because it highlights how GMP’s current Chief Constable Stephen Watson and senior officers view accountability at an organisational level. As GMP’s former Chief Constable Ian Hopkins found to his cost, failing to fix this dysfunctional force can cost you your job.

Apology Benefits

To quote Elton John, for some in the police “sorry seems to be the hardest word”. They can point fingers at the government and complain that they’re underfunded, but this lack of resources is partially of their own making.

For many victims of police misconduct, an early, heartfelt apology would go a long way to taking the heat out of incredibly fraught situations. Inevitably, a more conciliatory approach from the police would promote cheaper, quicker claim settlements, saving the police two scarce resources: time and money. Simply put, when it comes to apologies, the police can’t afford to be so pig-headed.

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

What the Child Q and Children’s Commissioner Reports Show About Child Strip Searches by Police

 

Photo of Kevin Donoghue, a solicitor who recently discussed the issue of child strip searches by police and the Child Q case on Sky News.

Kevin Donoghue discussed the police’s use of strip searches on children on Sky News. In this blog post he explains what the Child Q review and Children’s Commissioner’s report say about this issue.

By Kevin Donoghue, solicitor

This week I was interviewed by Sky News about the police’s use of strip search on children aged between 10-17 years old. New data from Dame Rachel de Souza DBE, the Children’s Commissioner, brought the issue to the media’s attention.

In her report, the Commissioner (who I will refer to as the CCo) reviewed the results of Metropolitan Police data about the force’s use of strip searches on children.

She found that the Met strip-searched 650 children between 2018-2020, and that the force frequently ignored laws and professional guidance to do so.

Sky News asked me to contribute because I represent children in civil actions against the police who have been wrongly subjected to intimate searches.

As the deeply concerning Child Q case showed, it can be a traumatic and intrusive form of policing. She said that:

I can’t go a single day without wanting to scream, shout, cry or just give up.

“I feel like I’m locked in a box, and no one can see or cares that I just want to go back to feeling safe again, my box is collapsing around me, and no-one wants to help.

“I don’t know if I’m going to feel normal again. I don’t know how long it will take to repair my box. But I do know this can’t happen to anyone, ever again.

Her emotions are understandable. As I explained in the tv interview:

“There is a violation by police officers which is very severely felt and one of personal integrity and their bodily autonomy which has been invaded and it is an event that cannot be undone.”

Sadly, the CCo’s report confirmed many of the findings of the Child Q review report. This is what they show about how the police deal with child strip searches.

What happened to Child Q?

Child Q was a 15-year-old black girl. In 2020, she was at school in Hackney and pulled out of an exam, after teachers suspected she had cannabis and called the police.

During the incident, the girl was taken to the school’s medical room and strip-searched by two female Met police officers, while teachers remained outside. Her parents were not contacted and no “appropriate adult” (a carer, relative, or other trained person) was present.

Her intimate body parts were exposed and, knowing that she was menstruating, the officers made her remove her sanitary towel. No drugs were found.

Child Q’s case prompted the City & Hackney Safeguarding Children Partnership (CHSCP) to conduct an emergency review.

Overlap between the Children’s Commissioner’s report on child strip searches by the Metropolitan Police and the Child Q review

The CCo’s report is brief, and worth reading in full. Among other things, the report’s findings were:

  1. The CCo report supports the (CHSCP) review authors’ finding that racial bias was a factor in the Child Q case. The CHSCP report authors said that:

racism (whether deliberate or not) was likely to have been an influencing factor in the decision to undertake a strip search.

The CCo offered hard data to support that opinion:

Ethnicity and disproportionality: 

  • Across 2018-2020, of boys searched, looking at the officer described ethnicity, 58% were Black, 20% were White, 16% were Asian, 5% were ‘other’ ethnicity and 2% did not have their ethnicity recorded. These figures should be compared against the ethnicity of 10-17 years olds in Greater 11 London in 2021: Black 19%, White 44%, Asian 22%, Mixed 10%, and Other 5%. 
  • In every year between 2018-2020, over half of boys searched were Black. In 2018, 3 in 4 boys searched were Black (75%).

It stands to reason that Black people (and boys in particular) would be disproportionately subject to intrusive searches. Black people are seven times more likely to be stopped by the police after all.

  1. Supporting racial bias is the concept of “adultification”. The Child Q report authors say this:

concept is where adults perceive Black children as being older than they are. It is ‘a form of bias where children from Black, Asian and minoritised ethnic communities are perceived as being more ‘streetwise’, more ‘grown up’, less innocent and less vulnerable than other children. This particularly affects Black children, who might be viewed primarily as a threat rather than as a child who needs support’.

Again, the CCo found data to support the adultification bias (p.10 of her report):

Gender:

  • The overwhelming majority of strip searches were carried out on boys (over 95%) with under 5% of searches carried out on girls.
  • Boys aged 16-17 were the most likely to be searched, with 73% of searches carried out on boys in this age group. 

  1. And yet, despite the serious and potentially life-changing effects of these intrusive searches, the tactic used on Child Q and (at least) 649 others between 2018-2020 is becoming more common:

Year:

  • The number of searches increased between 2018 and 2020, 18% of all searches were carried out in 2018, 36% in 2019 and 46% in 2020. 

  1. Child Q’s case was not an outlier. In fact, the CCo found, the Met could not confirm if an Appropriate Adult was present in 23% of strip searches of 10-17 year olds between 2018-2020.
  1. And, as in Child Q’s case, in more than half (53%) of cases, no further action was taken after the strip search.  As the CCo says:

“We question whether this low level of successful searches indicates that this intrusive practice is justified or necessary in all cases.”

How the police fail to uphold the law on the use of search powers

The CCo’s report only covers 2018-2020 and excluded 2021 even though some data was provided. She was forced to do this because of “serious data errors”.

As Dame de Souza drily notes at p.9 of her report:

“it is a matter of concern that the MPS is not able to readily account for the prevalence or appropriateness of strip searches involving children.”

This matters because it is a legal requirement that the police create, keep, and produce records relating to strip searches. The obligation is found in the general use of stop and search powers, and applies to both “bobbies on the beat” and their supervising officers, as shown in the Police and Criminal Evidence Act (1984) (commonly known as PACE) Code A:

Monitoring and supervising the use of stop and search powers

General

5.1 Any misuse of stop and search powers is likely to be harmful to policing and lead to mistrust of the police by the local community and by the public in general.

Supervising officers must monitor the use of stop and search powers and should consider in particular whether there is any evidence that they are being exercised on the basis of stereotyped images or inappropriate generalisations.

Supervising officers must satisfy themselves that the practice of officers under their supervision in stopping, searching and recording is fully in accordance with this Code.

Supervisors must also examine whether the records reveal any trends or patterns which give cause for concern and, if so, take appropriate action to address this.

Debunking the concept of urgency to justify searches without an appropriate adult present

As I have previously written, the police are experts at spinning stories. But, no matter what they say, the Child Q and CCo reviews do not make them look good.

I expect that the police will try to justify child searches without an appropriate adult present by saying that there was an urgent risk of immediate harm to the child or someone else. This is because the concept of “urgency” is subjective, so the officer’s reasonably held belief would be considered.

But, as the Independent Office for Police Conduct notes in an April 2022 report, the police’s own College of Policing and Authorised Professional Practice state that searching children based on the smell of cannabis alone is “not good practice” because:

Where the grounds for a search are perceived to be weak, the legitimacy of the stop and search is undermined, which can leave people feeling unfairly targeted, reducing confidence in the police service.

Photo of Kevin Donoghue, solicitor, being interviewed by Sky News for a report about child strip searches by the police.

Sky News interviewed Kevin Donoghue, solicitor, at his offices.

Long-Standing Abuse of Search Powers

The CCo is clearly concerned by what she has seen about how the police strip search children. With good reason. This is not a new story. Nearly 6 years ago (on 31st October 2016) Anne Longfield, the former Children’s Commissioner, said:

Strip searches of children should only be undertaken under strict conditions, including the presence of an appropriate adult.

Searches such as these should not be used routinely and must only be done when there is a clear need based on a genuine belief that an item has been concealed – which a child or young person would not be allowed while in police custody. I am currently looking at the provision of appropriate adults to children in custody.

That quote related to the story of a 12-year-old girl who was strip searched without an appropriate adult present when police were searching for drugs. To have to bring this issue up again (about Child Q and many others) shows the police’s attitude to child welfare and safety.

What the CCo Wants to Happen

Dame Rachel said in the foreword to her report: 

The Metropolitan Police has committed to learning lessons from this incident but the value in lessons being learnt comes from them not being repeated. That’s what sorry means, it means it won’t happen again.

And

I am deeply concerned by the information that I have received. I am not reassured that what happened to Child Q was an isolated issue, though it was certainly rare and the context unique. Instead, I believe it indicates more systemic problems around child protection. I remain unconvinced that the Metropolitan Police is consistently considering children’s welfare and wellbeing.

The CCo has called for data about child strip searches from the other 42 territorial police forces (find their contact details on our interactive map.) I expect it will show that this is a nationwide, systemic issue, as my own experience of representing children in these cases confirms.

Evidently, the police cannot be trusted to deal with it. The Home Office needs to step in to enforce a law (PACE), which the police are flagrantly flouting. As the CCo says (on p.7):

Ambition 1) Ensure the safeguarding of children is the top priority for the police when undertaking searches, by amending national guidance: The Home Office should amend Police And Criminal Evidence (PACE) Codes A and C to make it clear that strip searches of children should only be used when absolutely necessary. This guidance should also place a greater emphasis on a police officer’s duty to safeguard children during strip searches. This should include:

  • Clear guidance on making a safeguarding referral whenever a child is strip searched;
  • An emphasis on the need for an Appropriate Adult to be present;
  • A clear definition of any situation where an Appropriate Adult is not needed, to minimise any ambiguity around the term ‘urgency’.

The Home Office should ensure changes are included in both PACE Code A and Code C. The College of Policing should update its guidance to reflect these changes and to recognise changes to practice made by the MPS. The Children’s Commissioner’s office will send this report to the Minister for Policing and work with the Home Office to achieve these changes.

This recommendation is not asking too much of the police. In fact, laws already exist to help Chief Constables enforce it. It is clearly referenced in PACE Code A (at point 1.1) which police officers are expected to follow and uphold:

the Children Act 2004, section 11, also requires chief police officers and other specified persons and bodies to ensure that in the discharge of their functions they have regard to the need to safeguard and promote the welfare of all persons under the age of 18.

This is an early test of new Met Commissioner Sir Mark Rowley

The CCo said she intends share her knowledge with Baroness Casey. She is conducting a review of the Metropolitan Police’s vetting, recruitment, and training procedures in the wake of Sarah Everard’s murder by Wayne Couzens, one of the force’s officers.

But the CCo’s report covers things which happened under former Commissioner Dame Cressida Dick’s watch. I have been critical of her in the past, with good reason. She did such a bad job that the country’s biggest police force is now in special measures, a form of enhanced monitoring and oversight.

Dick’s replacement as Commissioner is Sir Mark Rowley. The Guardian reports that he got the job after:

Rowley pitched a 100-day plan to start turning the Met around, aware that more scandals and setbacks are to come, with some of the force’s leadership in denial about the severe trouble the organisation is in. He said the vast majority of Met staff were dedicated but he vowed to be “ruthless in removing those who are corrupting our integrity”.

Sir Mark Rowley must prioritise the issue of child strip searches by the Metropolitan Police. As the Child Q review and CCo’s report show, it is another systemic problem for the Met, not a “bad apples” one, even if the four officers in the Child Q case are now being investigated by the IOPC for gross misconduct.

Saying sorry now for something that happens routinely, such as not having an appropriate adult in nearly a quarter of child strip search cases, is hollow.  Unless the police start following the law, and being held to account when they flout it, the public will conclude that police only enforce the rules that suit them. As I said in the Sky interview:

“An apology is not enough. Compensation is not enough.”

Kevin Donoghue is a solicitor with experience representing children in civil actions against the police. He is a member of the Police Action Lawyers Group and the Association of Child Abuse Lawyers.