Do Police Take Sexual Harassment Seriously?

Photo of Kevin Donoghue, solicitor, who considers how the police are dealing with sexual harassment.
Solicitor Kevin Donoghue considers how the police are tackling sexual harassment in this blog post.

By Kevin Donoghue, Solicitor Director of Donoghue Solicitors

A recent newspaper report about police sexual harassment focused on police staff. But the findings also affect the public. Here, I look at the evidence and if the police are tackling the problem.

In July 2017 I called on the police’s overseer, Her Majesty’s Inspectorate of Constabulary (or HMIC, now called HMICFRS), to take firm action against police officers who engage in abuse of position for a sexual purpose. This includes sexual harassment by the police when it involves members of the public.

I followed this up with a blog post highlighting the updated guidance from HMICFRS detailed in its October 2017 report. HMICFRS sent its report to all police forces. In it, HM Inspector Mike Cunningham said that

The majority of police forces in England and Wales still have work do

but

Between this feedback provided in our individual letters to forces, the national strategy, College of Policing guidance and IPCC referral criteria, we believe that all forces have the information they need to produce and implement effective plans to address our recommendation, and to improve the way they prevent, seek out and respond to the problem of abuse of position for a sexual purpose more widely.

So, over a year ago forces had enough guidance to deal with the problem. What happened? Sadly, it appears from a recent report by the Guardian, not much.

Police Sexual Harassment Report

The Guardian made a Freedom of Information Act request to report on police sexual harassment. It found that this kind of police abuse of position for a sexual purpose is an ongoing, serious problem. Key points from the report are:

  • Only 28 of the 43 territorial police forces responded with data. Forces that did not include the UK’s largest force, the Metropolitan Police. As a result, the Guardian’s findings likely under-reported the scale of the problem.
  • The forces who responded received almost 450 complaints from staff and members of the public about sexual harassment over the past six years.
  • Complaints included accusations against senior detectives and inspectors.
  • A fraction of the cases led to dismissal, with some officers resigning or retiring first. A mere 24 police staff were dismissed and 74 faced management action. In total 48 staff members resigned or retired after a complaint was made.
  • Professor Jennifer Brown raised concern about the system in place to deal with police sexual harassment. She said, “It’s dealt with internally, so officers can resign before they are asked to appear before a disciplinary body. They may make a calculation – due to pension etc – that it is in their interest to go and so they may resign rather than be disciplined. It’s a messy landscape which should be overhauled but in the current climate I am not sure there is appetite to do that.”

Why Police Sexual Harassment can be an Abuse of Position for a Sexual Purpose

Sexual harassment by the police can be an abuse of position for a sexual purpose when it involves the public. The National Police Chiefs’ Council (NPCC) define this kind of police abuse as:

Any behaviour by a police officer or police staff member, whether on or off duty, that takes advantage of their position as a member of the police service to misuse their position, authority or powers in order to pursue a sexual or improper emotional relationship with any member of the public. This includes: committing a sexual act, initiating sexual contact with, or responding to any perceived sexually motivated behaviour from another person; entering into any communication that could be perceived as sexually motivated or lewd; or for any other sexual purpose.

It matters because this is a form of serious corruption. Forces must refer these cases to the Independent Office for Police Conduct for independent scrutiny.

Policy

So, what are the police and their overseers doing about it? There are three key bodies involved in formulating and executing policy which every police force must follow:

  • Her Majesty’s Inspectorate of Constabulary and Fire & Rescue Services (HMICFRS). This body independently assesses and reports on the efficiency and effectiveness of police forces and policing.
  • The National Police Chiefs’ Council (NPCC) “brings police forces in the UK together to help policing coordinate operations, reform, improve and provide value for money.”
  • The College of Policing is “the professional body for everyone who works for the police service in England and Wales. The purpose of the College is to provide those working in policing with the skills and knowledge necessary to prevent crime, protect the public, and secure public trust.”

1. HMICFRS

In October 2017 HMICFRS reported on the problem of police abuse of position for a sexual purpose. HMICFRS promised to re-inspect all police forces in 2018, saying in the 2017 report that

Ultimately, we cannot assess how well forces have implemented their plans to address our recommendation until we re-inspect them. Forces now have another opportunity to make progress before we return to this important matter in 2018 and beyond. Between this feedback provided in our individual letters to forces, the national strategy, College of Policing guidance and IPCC referral criteria, we believe that all forces have the information they need to produce and implement effective plans to address our recommendation, and to improve the way they prevent, seek out and respond to the problem of abuse of position for a sexual purpose more widely.

I can’t find any evidence of a re-inspection following the 2017 report.

On 22 March 2018 HMICFRS Inspector Zoe Bilingham said

In the face of substantial increasing pressures, dramatic increases in demand and rising numbers of complex crimes like sexual abuse, child abuse and domestic abuse, most forces continue to do a good job in keeping us safe.

I wonder if she would stand by that statement given the Guardian reports and without an up-to-date HMICFRS report about abuse of position for sexual purpose (or gain)?

In the HMICFRS State of Policing 2017 report, (published on 12 June 2018) the authors noted that forces were still failing to address the issue of abuse of position for a sexual purpose and said

We will carry out a full inspection of this and other elements of police legitimacy in 2018. This gives forces another opportunity to show they have understood how important this issue is, and to make progress. There has also been work on this issue at a national level. It is part of the NPCC national strategy, and the Independent Police Complaints Commission has changed its referral criteria. There is also guidance from the College of Policing. We believe forces have all the information they need to get this right, so we expect to see improvement at our next inspection.

HMICFRS has either

a) not completed a targeted inspection about abuse of position for a sexual purpose since October 2017, despite saying it would do so, or

b) completed the inspection but yet to report its findings.

Either way, the public is in the dark about the official position.

2. NPCC

The 24 December article in The Guardian was not the first time this issue came up in 2018. Responding to an August 2018 report about police sexual harassment, Chief Constable Julian Williams, the National Police Chiefs’ Council lead for professional ethics agreed that

This behaviour falls short of the high standards set in the code of ethics, which each member of the policing profession is expected to uphold.

He said the NPCC had

committed to developing a comprehensive action plan by October (2018) that addresses the range of harassment found. Some of the behaviour described is predatory and requires the strongest response from police with individuals removed from the service.

I cannot find evidence of the “action plan” on the NPCC website despite other activity by the Council. For example, in October it issued a statement about proposed police pension changes. Does this give an insight into its priorities?

3. College of Policing

The College of Policing said nothing about the recent reports and surveys. But in April 2018 it responded to a review into believing victims at the time of reporting. This is important in police abuse of position cases. It came from a recommendation in a report titled “Independent Review of Metropolitan Police Service’s handling of non-recent sexual offence investigations.”

The College said that it would

gather views from a number of organisations to ensure there is a clear agreed position on belief across policing before a final decision on the review’s recommendations is taken.

It noted that

The role of investigators is then to keep an open mind and carry out a full and impartial investigation, to prove or disprove allegations.

It assured the public and police that

the College will now consider the views expressed, alongside other feedback from policing, before taking any further action.

It seems that the College of Policing has taken no action.

Ostriches

Has anything changed since HMICFRS reported in 2017 about how the police investigate and record sexual abuse (including sexual harassment where appropriate)? It is impossible to tell without independent inspections and official reports, but it seems unlikely. (If readers are aware of recent work by the bodies above please let me know.)

Even if there are policies and procedures in place, it appears from the Guardian articles that they are not followed. Police officers continue to abuse their position for sexual gain. This is a serious problem which affects both members of the public and police staff.

There can be no excuses for delays in tackling the problem of police sexual abuse. It won’t go away by itself. And turning a blind eye may encourage miscreants within police ranks to continue abusing their power.

Kevin Donoghue is a solicitor who represents people in police sexual abuse claims.

 

Can the Gatwick Airport Drone Couple Claim Compensation?

Photo of Kevin Donoghue, solicitor, who considers if the Gatwick Airport drone couple are entitled to compensation.
Solicitor Kevin Donoghue considers if the Gatwick Airport drone couple is entitled to compensation.

By Kevin Donoghue, Solicitor Director of Donoghue Solicitors

Between 19-21 December 2018 Gatwick Airport was shut down after a drone (or drones) was spotted near the runway. The shutdown caused travel disruption at the UK’s second busiest airport. It affected about 140,000 passengers with delays and cancellations to 1,000 flights.

On Friday 21 December 2018 Sussex Police arrested two people suspected of “the criminal use of drones”. The police arrested them on suspicion of disrupting civil aviation “to endanger or likely to endanger safety of operations or persons”. This is a serious charge which carries a prison sentence if convicted. The police searched the couple’s home and, somehow, the media obtained their details. Commentators such as Piers Morgan called the suspects “clowns”. (He later apologised). Newspapers published stories with inflammatory headlines, including this one:Mail on Sunday front page showing Gatwick Airport drone story.

Sussex Police released the suspects without charge 36 hours’ later. The couple, who I am not naming to minimise further distress, feel “completely violated” by the incident, and said:

We are deeply distressed, as are our family and friends, and we are currently receiving medical care. The way we were initially perceived is disgusting, although those that knew us didn’t doubt us for a second.

But Sussex Police defended their actions. Detective Chief Superintendent Jason Tingley said he was “satisfied that the arrest was lawful”:


And he denied responsibility for the media reporting, saying:

“We would not have chosen in any event to provide that information to anyone… and one might say that’s probably hindered us in terms of how quickly we’ve been able to get to a resolution, in terms of them being released from custody.”

The situation remains unresolved and a £60,000 reward is unclaimed.

Three Potential Issues in the Gatwick Airport Drone Case

What about the couple who were wrongly accused of criminal wrongdoing at Gatwick Airport? Can they claim compensation? As a solicitor who specialises in civil actions against the police, I can offer some insight. But I stress that I base my comments on media reports. I have not spoken with the couple. As a starting point, we should consider the following:

  1. Were the arrests lawful?
  2. Can the police justify the detention period?
  3. Responsibility for arrest publicity.

1. Were the arrests lawful?

Sussex Police were under huge pressure to solve this crime quickly. The disruption and worldwide publicity were immense. It seems that they were desperate to report progress, issuing a report about the arrests on the Force website at 1.23 a.m. on Saturday 22 December.

But did public and political pressure justify arresting the two people involved?

In most civil compensation claims the claimant must prove their case against the defendant. But civil actions against the police are different. Once the claimant has proven that they were detained, the police must justify it. We do not know on what grounds DCS Tingley said he was “satisfied that the arrest was lawful”. But to prove a lawful arrest (without a warrant) the police must satisfy all of the following conditions in ss.24 & 28 of the Police and Criminal Evidence Act 1984 (PACE) (as amended), which are:

(i) the arresting officer honestly suspected the arrested person was involved in the commission of a criminal offence (“the subjective test”)

(ii) the arresting officer held that suspicion on reasonable grounds (“the objective test”)

(iii) the arresting officer’s reasons for effecting an arrest amount to a reasonable belief that the arrest was necessary, usually to allow the prompt and effective investigation of the offence or of the conduct of the person in question (“the necessity test”)

(iv) the officer informed the arrested person of the fact and grounds of arrest as soon as reasonably practicable (“the section 28 test”)

(v) the arresting officer’s exercise of his or her discretion to arrest was reasonable in public law terms because PACE confers a discretion, not a duty to arrest. (“the Wednesbury test”).

You can read more about false imprisonment here.

The PACE conditions raise questions which the arresting officer might have to answer to justify the arrests. I understand from a drone enthusiast that the police might have found the couple by searching social media. If so, did that information give the arresting officer enough to form a reasonable and honestly held suspicion that they were involved in the commission of a criminal offence? Even with that intelligence, and any other information, could the police have handled the interview and search process differently? As my client James Parry’s case proved, the police always have the option of inviting suspects to attend a voluntary interview instead of arresting them (condition iii).

Public and political pressure is not mentioned in the PACE rules on lawful arrest. The urge to solve a crime does not justify arrest in any circumstances.

2. Length of detention

Sussex Police arrested the suspects just after 10pm on Friday 21 December. The police held them for 36 hours over two nights until release at about 10am on Sunday 23 December.

Was this appropriate?

The police must justify continuing detention on a minute-by-minute basis. As Lord Donaldson explained in Mercer v Chief Constable of Lancashire Constabulary:

what may originally have been a lawful detention may become unlawful because of its duration or of a failure to comply with the complex provisions of the Police and Criminal Evidence Act 1984.

PACE sets detention periods, which are generally 24 hours, but up to 36 hours when authorised by a superintendent (or above). (Court warrants can authorise further extensions, up to 96 hours.) The superintendent or above must have reasonable grounds for believing that:

  1. detention of the person without charge is necessary to secure or preserve evidence by questioning; and
  2. the offence is an indictable offence; and
  3. the investigation is being conducted diligently and expeditiously.

Knowing this, and especially point 3, it is interesting to note what the male suspect’s employer said about an alibi. He explained:

“All it would have taken was for them to call me and contact me as his employer and I could have confirmed that all day Wednesday and half the day Thursday, he was part of a three-man team installing fascia, soffit and guttering at a client’s home in Groombridge, Kent.

“On Friday he spent most of the day running my daughter about because she damaged one of her toes and he was ferrying her to the doctor.”

[He] went on: “I discovered on Friday evening that he had been arrested. I got onto the police on Saturday evening, but I couldn’t get through to anybody.

“There was was just somebody who said I’ll take notes and pass that message on. But they never did get back to me, there was no return contact.”

Police took 67 statements. But did they prioritise effectively knowing that they had two people in detention? The male suspect’s boss called to confirm a solid alibi. Given the need to justify detention and high-profile nature of the matter, why was this call effectively ignored? Would a superintendent (or higher officer) have authorised continued detention knowing this?

Another issue is Sussex Police’s approach to detention. Chief Constable Giles York:

defended the decision to hold [the male suspect] for an extended period, despite his employer saying he was at work during the drone flights.

He added: “I’m really sorry for what [the male suspect] has experienced and the feeling of violation around it.

“[But] what might have been worse as an experience for him would have been to be released under investigation still.

“We were able to exhaust all our lines of inquiry on that first instance and were able to release him from police custody saying he was no longer a suspect.”

It’s not clear what the Chief Constable means here. One interpretation could be that the couple was detained for longer than necessary while the police exhausted their enquiries. If that’s the case, did the police consider releasing them on bail (s.30A of PACE) with conditions if necessary?:

(3B) Subject to subsection (3A), where a constable releases a person on bail under subsection (1) the constable may impose, as conditions of the bail, such requirements as appear to the constable to be necessary—

(a)to secure that the person surrenders to custody,

(b)to secure that the person does not commit an offence while on bail,

(c)to secure that the person does not interfere with witnesses or otherwise obstruct the course of justice, whether in relation to himself or any other person, or

(d)for the person’s own protection or, if the person is under the age of 18, for the person’s own welfare or in the person’s own interests.

Again, given the police’s obligation to justify detention, officers may need to explain why they did not release the couple earlier, with or without bail.

3. Publicity

As my client Nigel Lang explained, arrest publicity can have life-changing consequences. It erodes the presumption of innocence until proven guilty. Did police leak details of the arrest? Good Morning Britain host Piers Morgan seemed to think so:

As I mentioned earlier, the police were coming under intense scrutiny at the time. It is conceivable that an officer leaked the suspects’ details to show Sussex Police had the situation under control.

If so, they caused the couple a great deal of unnecessary pain and distress.

Consequences

The two suspects describe the life-changing trauma of their arrest and detention in this video. They are now receiving medical treatment.

It remains to be seen if the couple takes legal action. Proving wrongful arrest is not easy. Ignore what uninformed people say on social media. A police officer can be completely mistaken (e.g. relying on a mistaken identification given by a witness) and the arrest can still be lawful.

And some have suggested that the couple will get “millions”, referring to Sir Cliff Richard’s case as an example. They’re wrong. As I explained here, his was an exceptional case.

Despite these warnings, as my client Paul Smith proved, successfully suing Sussex Police is possible. The couple might be able to bring compensation claims for

  • false imprisonment
  • misuse of private information
  • breach of the Human Rights Act 1998
  • Data Protection Act 2018
  • trespass
  • etc.

This may lead to compensation for

  • psychological effects
  • injury to feelings
  • lost earnings
  • other heads of claim.

As well as the financial aspect, there are also public confidence consequences for Sussex Police. They come out of this matter with very little credit. DCS Tingley confused the public and media on 23 December (the same day the couple were released) when he said that there was

‘always a possibility that there may not have been any genuine drone activity in the first place.’

(The following day the police called this “poor communications” and claimed there had been many drone sightings.)

DCS Tingley may have also contributed to the arrested couple’s trauma when he refused to apologise.

Lastly, the incident may encourage MPs to legislate. Parliament might

I wish the couple all the best as they start the New Year and come to terms with everything they’ve been through. They deserve it.

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

 

What the Weapons Effect Tells Us About Police Taser Assaults

Photo of Kevin Donoghue, solicitor, who discusses the weapons effect with respect to the police's use of Taser stun-guns.
Solicitor Kevin Donoghue discusses the weapons effect following a recent report on the police’s use of Taser stun-guns.

By Kevin Donoghue, Solicitor Director of Donoghue Solicitors

A recent report about police use of Tasers found that “officers are more likely to be assaulted when carrying electroshock weaponry, and more likely to apply force.” The report found that between June 2016 – June 2017 City of London police officers armed with Tasers were

  1. almost 50% more likely to use force in the line of duty
  2. twice as likely to be assaulted compared to unarmed police.
  3. unarmed officers accompanying Taser-wielding officers were 19% more likely to be assaulted.

The researchers at the University of Cambridge Institute of Criminology chose City of London Police (COLP) as their study subject for a reason. As they explained,

The overwhelming majority of officers in the United Kingdom are not equipped with firearms, and COLP is the first force in England and Wales to test the extended deployment of personal-issued TASERs to frontline officers. By implication, it is the first to test the utility of the device under rigorous conditions. Specifically, we are interested in TASERs’ effects on the use of force in police–public interactions, assaults on police officers, and injuries sustained by suspects.

The report supports the well-established “weapons effect” phenomenon, which prior to this research referred only to guns. It is found where the presence of a weapon leads to more aggressive behaviour, particularly if already aroused.

The study has generated many headlines because it shows that “the weapons effect is ubiquitous and extends to less-than-lethal weapons” such as Tasers. Police Federation representatives are upset by this conclusion, because they relentlessly promote Tasers as a “low level of force”, and want all front-line officers to have them.

But should they? Consider the ongoing case of my client Paul (name changed).

Unprovoked Police Taser Attack

Paul Jones is a professional social worker in his late 20s. He is a black man who lives in London. He has never been in trouble with the police and has a clean record, as befits his position.

One night in earlier this year he was driving friends home in his Mercedes-Benz car. He was the “designated driver” and completely sober.

City of London Police pulled Paul’s car over, even though he knew he wasn’t speeding or driving erratically. An officer told Paul that he wanted him to take a breath test. Paul immediately agreed. He had nothing to hide. He got out of his car to assist the officer. The first test was inconclusive. So was the second. A second officer appeared and asked Paul if he was chewing. Paul said he was. He had gum in his mouth. This officer told Paul to take the gum out and addressed him in a demeaning way. He told Paul that he would have to wait 20 minutes before re-testing. Paul explained that the first officer didn’t tell him to take the gum out and, as Paul had never been breathalysed before, he didn’t know any different.

More officers arrived. Paul stayed calm and waited. He took the breath test for a third time: it was inconclusive again. The officers were frustrated and began shouting at Paul. By now four or five officers surrounded him. One was standing right behind him, out of Paul’s line-of-sight. This police officer Tasered Paul without warning, temporarily paralysing him. He shouted “Taser, taser, taser” only after electrocuting Paul, who had no idea the officer had pulled and aimed his weapon. Paul fell to the ground and banged his head on a marble ledge, knocking him out. His friends watched the fall and thought Paul had been killed. One of them confronted the officer with the Taser and asked, “are you going to Taser me?” “Yeah, I will,” said the police officer.

Paul was taken to hospital. The police attempted to get a blood sample after he had been assessed. Paul refused. He has a needle phobia and had earlier refused an IV drip. He offered another breath or urine sample instead. The police refused to accept this and charged Paul for failing to provide a (blood) sample. Paul fought the criminal case which could have devastating consequences professionally and personally. The Crown Prosecution Service dropped the case the day before trial. Paul is now claiming compensation for his physical and psychological injuries, lost earnings, and other things.

I have every confidence in my client’s case. Not only is he an excellent, credible witness, but so are his friends. And there is body worn camera and CCTV footage to support Paul’s version of events. The City of London Police acted disgracefully and needlessly injured an innocent man.

Impact of the Weapons Effect on Police Officers

The University of Cambridge researchers explained the weapons effect in their report from the suspect’s point-of-view, saying

the cue of a weapon “activates” those internal conditions that affect one’s decision-making processes, ultimately leading to assaults and attempted assaults on weapon-carrying officers and by implication to a rise in police use of force.

But the weapons effect does not discriminate between weapon-wielding police officers and their victims.

In Paul’s case, the weapons effect described by the researchers did not apply to him. He did not act in an aggressive manner because of the presence of the Taser. He didn’t know it was there and remained calm, even when confronted by aggressive and aroused officers. But there is no doubt that the presence of the Taser weapon led to the unnecessary use of force by the police officer. The officer ignored best-practice and training. He was too quick to resort to the most severe form of force available to him (Taser) rather than use de-escalation techniques. This fits in with the researchers first finding (Taser-equipped police are almost 50% more likely to use force in the line of duty).

The University of Cambridge report is helpful. It expands public knowledge and offers interesting recommendations, such as concealing Tasers to avoid the weapons effect. But considering the weapons effect solely from the point of view of the suspect, and not Taser-wielding police officers, paints an incomplete picture.

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

 

 

 

Caught Up in the Randox Toxicology Report Scandal? Here’s Three Things You Can Do

Photo of Donoghue Solicitors' Jack Hudson who discusses options for people caught up in the Randox toxicology report scandal.
Donoghue Solicitors’ Jack Hudson discusses options for people caught up in the Randox toxicology report scandal.

By Jack Hudson, Trainee Legal Executive at Donoghue Solicitors

Recently the National Police Chiefs’ Council forensics lead updated the public on the Randox toxicology report situation. Randox Testing Services provided forensic science reports to most of the UK’s police forces. It says that rogue employees created inaccurate drug test reports. Some of these reports were used to secure convictions or harsher sentences. Where possible, the authorities are re-testing suspect samples, but things are moving slowly. Dorset Police Chief Constable James Vaughan confirmed that fewer than 4,000 of more than 10,500 cases have been submitted for re-testing so far.

As my colleague Kevin Donoghue explained, the effects of this toxicology report issue are wide-ranging and, for many, devastating.

We act for many victims who allege that they were wrongly convicted, or had their sentences increased, using flawed toxicology reports. Donoghue Solicitors is helping these innocent victims claim compensation as a result of this miscarriage of justice.

Some people, like our client “John”, have already been contacted by the Crown Prosecution Service with confirmation that his conviction was unsafe. His case is not unusual, in that the Magistrates agreed to re-open it, rather than deal with it by way of formal appeal.  Most courts are dealing with these cases in a similarly low-key way. Having dealt with his criminal conviction, John is free to pursue a compensation claim to put him in the pre-incident position.

But what can you do if you think you were convicted, or suffered a harsher punishment, based on an incorrect toxicology report? What if you are still waiting to hear from the authorities? Here are three options to consider:

1.     Wait and See

Thousands of people may have been affected by the Randox Testing Services (and Trimega Laboratories) scandals. You are not alone. Two big problems for the police and courts are

  1. the sheer volume of drug-sample tests they need to do
  2. the lack of trusted forensic experts who can do them.

Quite rightly, the police and courts are prioritising cases. About 900 “high priority” matters include cases

  • in or nearing trial where suspects are in custody
  • where individuals have been convicted but not yet sentenced
  • where people have been bailed in advance of trial or sentence
  • where convicted people are in jail.

The police expect the toxicology samples in these urgent cases to be re-tested by April 2019. But, as the NPCC lead said,

“Unfortunately, the retesting process has been slower than we had either hoped or anticipated…”

Despite this, he estimates that all relevant sample re-testing will be done by December 2019.

If you take the police at their word, you might have to wait at least a year to find out if your Randox toxicology report was wrong. I expect that the authorities will only contact those whose reports are flawed. The NPCC lead said that 2,300 of the total number of cases were removed from the retesting process because they were “deemed unlikely to result in a change to the criminal justice outcome.” Don’t expect to hear from the police if your case was one of those.

If it wasn’t, you could wait for a formal notice that your drug test report was wrong. So far about 90 of the 800 samples tested were flagged, so your odds of hearing are not great.

If you do get notified, you will need to wait for your case to be processed in the criminal justice system. Court time is precious and limited. Expect to wait until well into 2020 to get your conviction set aside.

Despite the delay and uncertainty, this option is free of charge to you, unless you seek legal representation at court. It is attractive if you do not have the money to pay a solicitor yourself.

2. Contact Your Criminal Solicitor (if you used one)

Many, but not all, Randox Testing Services cases involved criminal law. About 7,700 of these matters related to Road Traffic Offences. Other cases involved prosecutions for

  • murder
  • suspicious death
  • rape
  • violent assault
  • road deaths.

Some involved matters unrelated to the criminal law, such as

  • local authorities dealing with child protection decisions
  • private employers’ drug and alcohol testing.

If you used a solicitor to deal with your criminal defence, you could contact them for help. Ask them to check if the Crown Prosecution Service used a Randox Testing Services or Trimega Laboratories forensic report to secure your conviction or extend your sentence.

If they did, your criminal solicitor should be able to find out if your toxicology sample is available for retesting. They could arrange for a private test and, if supportive, use it to set your conviction aside or reduce your sentence.

Please note that legal aid is not available for this service. You will have to pay privately. Costs vary depending on a number of factors, including how much work is involved.

But you may be able to recover some of the costs of the private retest and legal representation in your civil compensation claim.

3.     Ask Us For a Recommendation of a Criminal Solicitor Who Specialises in Randox Testing Services Cases

Get in touch with us if you did not use a criminal solicitor, or if you would prefer to use someone different, to help with your Randox drug test case.

We can put you in touch with an expert solicitor who can make enquiries on your behalf. We will not charge a fee for doing this or receive a commission and provide no guarantee or indemnity. Depending on your circumstances, they will work with your previous lawyers, the CPS, and others, to find out where you stand. As above, you will have to pay privately for this work and any sample test.

Beware of Time Limits and Lack of Evidence

Whichever option you choose, please be aware of the time limits that apply in these cases. Dates vary depending on your circumstances. You may be “statute-barred” if you try to bring a compensation claim out of time, even if you get your criminal conviction set aside or reduced.

If your lawyer’s case file and/or toxicology sample have been destroyed it will be harder, if not impossible, to prove your innocence. Many solicitors destroy their files after six years. Trimega tests date back to 2010. Randox tests started in 2013. Samples can degrade over time, even if they were not destroyed by testing or disposal.

What to Do if You Have Already Been Notified About Your Randox Toxicology Report Case

Contact us if you have already heard from the court, police, your criminal solicitor, or CPS about your case if it involved Randox Testing Services or Trimega Laboratories. It doesn’t matter what stage you are at, so long as you know your conviction or extended sentence was based on flawed evidence. We can help you with a compensation claim for things like

  • Loss of freedom, and any psychological effects
  • Financial losses, including lost earnings.

I hope this helps. Please don’t hesitate to contact me or my colleagues if you have any questions.

Contact Jack Hudson for advice on Randox Testing Services claims here.

 

Donoghue Solicitors Shortlisted for Modern Law Awards

Photo of Kevin Donoghue, Solicitor Director of Donoghue Solicitors. His firm has been nominated for the Modern Law Awards Boutique Law Firm of the Year (1-10 employees) 2019.
Kevin Donoghue, Solicitor Director of Donoghue Solicitors. His firm has been nominated for the Modern Law Awards Boutique Law Firm of the Year (1-10 employees) 2019.

By Kevin Donoghue, solicitor

This morning I saw this tweet on my firm’s feed:

I am delighted to announce that the organisers got in touch! Donoghue Solicitors has been shortlisted for the 2019 Modern Law Awards in the Boutique Law Firm of the Year Award (1-10 employees) category. The Awards are now in their sixth year. They “celebrate and identify sparkling talent and success in entrepreneurship, market development, business management and best practice in the modern legal services arena.” The organisers tell me that

we were overwhelmed with nominations this year so it is great achievement to be shortlisted!

Modern Law Awards logo for Boutique Law Firm of the Year
Donoghue Solicitors has been shortlisted for the Modern Law Awards 2019- Boutique Law Firm of the Year Award (1-10 employees).

The criteria we had to meet were:

  • A firm who practices in a niche/specific area of law
  • A practice that has performed exceptionally in terms of establishing itself in its chosen market
  • Within the last year, has demonstrated extensive development and progress as a business, including, but not limited to; strategy, growth, financial performance, employee development, diversity and training
  • An innovative practice that can demonstrate its ability to creatively and effectively compete with multi-practice firms
  • A practice that exceeds the expectations of basic client care and professionalism

Modern Law Awards judges

Judges include high-profile members of the legal, business, and education community, including:

  • Simon Davis, Vice President of the Law Society
  • Professor Thom Brooks, Dean of Durham Law School
  • Dr Leslie Thomas, barrister and Joint Head of Garden Court Chambers
  • Nik Ellis, Managing Director of Laird Assessors
  • John Hyde, reporter at the Law Society Gazette.

What the Boutique Law Firm Nomination Means to Us

We are only eligible for the Boutique Law Firm of the Year Award because of the hard work and dedication of the team at Donoghue Solicitors. I am thrilled that this has been recognised. I will take everyone here to the black-tie event in Victoria Warehouse, Manchester on 31st January 2019. It will be rewarding for them to be recognised at such a high-profile event. We recently celebrated eight years in practice. This is a unique and timely opportunity to toast our continuing success.

A big “thank you” to the Modern Law Awards panel, our clients, staff, and families for helping us get this far.

Kevin Donoghue is the Solicitor Director of Donoghue Solicitors, a boutique law firm specialising in civil actions against the police.

Will Home Office Plans Increase Tactical Contact Risks?

Photo of Daniel Fitzsimmons, who discusses the police's use of tactical contact on motorcyclists.
Daniel Fitzsimmons, FCILEx, discusses Home Office plans for police drivers and tactical contact.

By Daniel Fitzsimmons, Chartered Legal Executive

Recent footage of Metropolitan Police officers using “tactical contact” to apprehend alleged criminals has caught the attention of the public and politicians alike. Tactical contact is a form of “hard stop”, a technique where police drivers make contact with a suspect’s vehicle. Watch the video below to see it in action:

The Prime Minister announced her support for the police officers and praised the Met Police’s “robust response”.

No doubt Ken Marsh, the Police Federation chief, is encouraged by the government support. He said:

“There need to be protections around this afforded to our colleagues – both in law, from the force and with public, political and media opinion. They are doing nothing more than their jobs, trying to apprehend someone who, nine times out of 10, has committed a horrendous offence.

“They must be backed.”

Changes to Police Driving Laws

The Home Office is listening. It has proposed changes to the law giving police officers more legal protection if they are involved in motor-related incidents. Such incidents include, but are not limited to, those involving the moped-riders who are getting the public’s attention.

Presently, officers, like all other motorists, can be prosecuted for careless or dangerous driving if they fail to drive in a “competent and careful” manner. The new rules would apply a different legal standard to police drivers. Police would only have to show that they

  • drove in a “necessary and proportionate” manner in the circumstances
  • used appropriately authorised driving tactics
  • took into account “the standard of a careful and competent police driver of a similar level of training and skill.”

This planned rule change is problematic. As one of my client’s cases shows, the police are already given a great deal of leeway under the current law in motor-related incidents. Easing legal restrictions increases the potential risk to public safety.

Use of Tactical Contact by Police

My client “Mohammed” is a successful driving instructor who recently earned a degree in quantity surveying. He is also an enthusiastic motorcyclist. He owns a top-of-the-line BMW S1000RR motorbike. He rides wearing full and very distinctive leathers, which have a large shark logo on the back.

At about 10 pm one evening last year, Mohammed was stationary at red traffic lights. He was sitting on his bike chatting to a friend using his in-helmet Bluetooth. He had just left his girlfriend’s and stopped at a nearby petrol station. Mohammed was at the lights for a full minute when suddenly he was hit from behind. The impact, which he was not expecting, knocked Mohammed off his motorbike. Mohammed thought he was being robbed. He turned to find a man standing over him. Mohammed lashed out, hitting his assailant. Three more men appeared and overpowered the motorcyclist. The men pulled Mohammed’s hands behind his back with such force that he thought they had broken his right wrist. One of them handcuffed him, and only then did Mohammed realise that he was being arrested by police officers.

Mohammed saw that the officers had come from an unmarked police car. He learned that they had been involved in an incident earlier that night. The police arrested Mohammed because they thought he was part of a criminal gang on motorbikes who evaded them. Mohammed explained why they were wrong and that he had an easily-proved alibi. He asked them to check his telematics equipment. The device on his motorbike monitors speed, journey, miles covered etc.. Mohammed knew that it would show that his bike had been stationary earlier as he had been at his girlfriend’s. He asked the police to contact her to verify this. He also asked them to check the CCTV at the petrol station he had been to moments before, which showed he was not in the area they were searching.

The police refused to do any of this, but detained Mohammed for over half an hour. Mohammed’s wrist was still painful. He asked for medical help and the officers called for paramedics. Eventually, the police accepted that Mohammed was not a suspect and agreed to let him go. They issued him with a ticket for driving without due care and attention and left the scene before the paramedics arrived.

Mohammed went to hospital and got a temporary sling for his wrist. Later he got a hard-cast. Thankfully, his wrist was not broken but he used the hard cast for over a month, ruining his graduation day photographs.

Police Complaint

Mohammed was upset at the police’s heavy-handed, unprovoked, and unnecessary treatment. They had caused £2,000 worth of damage to his motorbike, injured his wrist, and kept him against his will. They issued him with a ticket for driving without due care and attention. So, the next day he went to his local police station to file a complaint about the police’s actions. He found out that the police officers had body-worn video cameras. He was relieved, thinking this would help prove the complaint. But, as my colleague Kevin Donoghue described here body-worn cameras only work when they are turned on. Three of the four officers at the scene wore the cameras. Conveniently, none of them turned on their body-worn cameras until after the arrest.

Frustrated, Mohammed contacted my firm because we specialise in civil actions against the police. I agreed to help with his police complaint and civil action against the police. But the internal investigator for Professional Standards had very little patience. He decided to adjudicate based solely on Mohammed’s brief description and statements from the four officers. Unsurprisingly, he found in the officers’ favour and recommended no action.

We appealed this decision, referring the matter the Independent Office of Police Conduct. The IOPC was not impressed and ordered a re-investigation. It told the police investigator to address the following matters:

· Consider whether the police officers should be charged with assault.
· Take more detailed accounts from all four officers. The IOPC noted that none of the officers mentioned the distinctive shark logo on the back of Mohammed’s leathers when describing the motorcyclists in the earlier incident.
· Get the officers’ body-worn camera footage of the earlier incident, in which the police claimed they were trying to apprehend law-breaking motorcyclists who got away.
· The three officers wearing body-worn cameras must explain why they did not start recording when the decision was made to detain Mohammed, ie.. before they assaulted and arrested him.
· Whether the police driver acted in accordance with the College of Policing authorised professional practice for police pursuits.
· Why they held Mohammed for a further 10 minutes after the arresting officer announced to his colleagues that there was no reason to detain, especially as, the IOPC noted, Mohammed appeared “calm and non-threatening”.

Criminal Prosecution Effects

Mohammed’s faith in the police and legal system has been shaken by this incident. He was arrested and injured through no fault of his own. The police damaged his motorbike. He had to go to the time and trouble of finding and working with solicitors to bring a claim. The police brushed aside his (initial) complaint, forcing him to spend more time on an appeal. On top of this, he has a criminal case for careless driving to defend. Unless something changes his case will go to trial. He will have to defend himself in court even though he is clearly innocent: after all, he was stationary at red traffic lights when the police hit him. He is stressed about the consequences of fighting at court to avoid points on his licence. Driving instructors pay enough for insurance already, and points carry a professional stigma.

Consequences of Proposed Changes in the Legal Standard

The police denied Mohammed’s complaint applying current misconduct rules and laws. The investigator felt that the officers’ actions were reasonable and justifiable. Mohammed’s determination to pursue a police complaint and civil action will ensure that this is not an end to the matter.

But the Home Office’s plans to relax the legal standard in motor-related incidents sends a worrying signal to the police. As Diane Abbot, Labour’s Shadow Home Secretary, posted on twitter:

Her fears are merited. Home Office proposals will create a two-tier legal system which may encourage police drivers to use tactical contact, hard stops, and other high-risk driving techniques more frequently, with potentially devastating consequences for victims.

Daniel Fitzsimmons is a Fellow of the Chartered Institute of Legal Executives who specialises in civil actions against the police. Contact him here.

Why Our Cyber Essentials Accreditation Matters

Photo of Kevin Donoghue, solicitor, who explains Cyber Essentials accreditation.
Kevin Donoghue explains what Cyber Essentials accreditation means to you.

By Kevin Donoghue, solicitor director of Donoghue Solicitors

Q. What do

  • Cambridge University
  • the Scottish Football Association
  • Lloyds of London
  • the Co-operative Bank
  • Donoghue Solicitors

have in common?

A. They are all Cyber Essentials accredited.

We recently became part of this exclusive club. This is why.

What is the Cyber Essentials Scheme?

The UK government set up Cyber Essentials through the National Cyber Security Centre. (This is a division of Government Communications Headquarters (GCHQ).)

Cyber Essentials is a “world-leading” cyber security assurance scheme. It aims to help organisations adopt good practice on information security and protect against cyber-attacks.

Why Did Donoghue Solicitors Get Cyber Essentials Accredited?

Getting a Cyber Essentials certificate was a natural progression for us. We take our clients data security seriously. As I explained here, this commitment includes how you use our website. You might have noticed that it is secure (https instead of basic http) and uses Extended Validation (EV). We use industry-leading 256-bit encryption keys and EV, so you can tell that we own the site. You can trust it by checking at the top of your internet browser for

🔒 Donoghue Solicitors Ltd [GB] | https://www.donoghue-solicitors.co.uk

Other companies using the same system include

  • Santander
  • PayPal
  • Apple
  • John Lewis
  • Tesco.

Most law firms have not taken these steps to protect their websites’ users. Time and money are involved. But your confidence and online protection are worth it to us.

Cyber Essentials accreditation proves that our commitment to your online security extends to other areas. It shows that we have implemented technical controls to address essential cyber risks.

Photo of Donoghue Solicitors' Cyber Essentials accreditation badge.
Donoghue Solicitors is Cyber Essentials Accredited.

What is the Certification Process?

Organisations must apply security and technical controls in five areas to get certified. These are:

  1. Boundary Firewalls and Internet Gateways
  2. Secure Configuration
  3. Access Control
  4. Malware Protection
  5. Patch Management.

To prove that we applied them, we

  • reviewed our entire IT system with a focus on cyber-based threats.
  • prepared policy documents and made sure they met the scheme requirements.
  • put the policies in action, adopting the latest technology where necessary.

Only then could we apply for certification. This involved completing a questionnaire and providing documents in support. An external certifying body appointed by the government vetted our submission. We passed the certification process at the first attempt.

Commitment

I understand that we are now one of fewer than 2% of law firms nationwide with Cyber Essentials accreditation. This exhaustive process took time, money, and staff resources. I am proud of the work we did to earn accreditation. But the certificate is just the beginning. Cyber risks are changing. Attacks get more sophisticated every day. We will do everything we can to protect our clients’ data. You can have the highest level of confidence when sharing sensitive and personal information with us.

Contact Donoghue Solicitors for legal help using our online form or call 08000 124 246.

 

 

Why I Went into the Police Federation Lion’s Den

Photo of Kevin Donoghue Solicitor Director of Donoghue Solicitors.
Kevin Donoghue, solicitor and specialist in civil actions against the police.

By Kevin Donoghue, solicitor

“You’re brave, coming into the lion’s den,” said the Police Federation representative. “I know,” I replied, “but it’s worth it.”

This was one of the conversations I had at the Police Federation Post Incident Procedure conference on 15-16 October. There I met police officers, representatives of the Independent Office for Police Conduct, medical experts, lawyers, and others.

I was never going to win a popularity award at the conference. Some of the delegates might consider me “the enemy” because I am a solicitor who represents victims of police misconduct in their civil actions against the police. I was not paid for being there. I travelled down to Leicestershire the night before to make sure I could attend. I missed a day’s work, coaching my under-9s football team, and time away from my young family. So why did I go?

Photo of Che Donald, Vice-Chair of the Police Federation of England and Wales, presenting at the Post-Incident Procedures conference in October 2018.
Che Donald, Vice-Chair of the Police Federation of England and Wales, presenting at the post-incident procedure conference in October 2018.

Police Federation Conference Panel

Che Donald, the outgoing Vice-Chair of the Police Federation of England and Wales (PFEW), invited me to appear at the conference. He contacted me because Sgt Donald and I have sparred in the media over the police’s use of spit hoods. (He’s supportive of their use. I’m concerned by their unchecked roll-out, as you can tell from my earlier blog posts.)

This PFEW conference focused on post-incident procedures. These are the rules the police must follow after a death or serious injury. I joined a panel discussing police restraint procedures. Members included:

  • Dr Meng Aw-Yong, a Forensic Medical Examiner and President of the British Academy of Forensic Science
  • Catherine Hall, Operations Manager for the Independent Office for Police Misconduct
  • Colin Banham, a barrister who represents police officers in gross misconduct hearings

As you can tell, the panel leaned heavily in favour of the police. I was outnumbered. Despite this, I was treated respectfully and well during the hour-long discussion. It was unscripted, save for questions from the moderator, Phil Matthews.

Police Restraint Panel Discussion

The audience asked probing questions and brought out some useful points about restraint. These included:

  1. The potential benefits of a “fit bit” type device which was unveiled at the conference. The wearable device is designed to track a detainee’s vital signs and reduce the risk of death in custody. On first impressions, the benefits to detainees, police officers, the IOPC, and wider communities appear clear.
  2. A controversial suggestion that police officers use Tasers more readily on some people to prevent further harm. (For example, those suffering from a mental health crisis.) I disagreed with this idea. I am used to dealing with victims of Taser assaults who suffer serious physical and psychological injuries. Police often use Tasers with other forms of restraint, such as spit hoods. This makes matters worse. I commented that injuries could be avoided if the police used proper de-escalation techniques and involved medical professionals first. The Taser “stun-gun” is a potentially lethal weapon. Police should only use it as a last resort.
  3. An audience-members’ view that the police were treated as a “cash cow”. He questioned why the police get sued when others, such as the ambulance service, do not. I explained that his perception was incorrect. In practice, solicitors involved in these cases hold all appropriate organisations to account. No one is above the law, and laws are there to be followed.
  4. The issue of police training. The panel agreed that budget cuts could impact on the amount and quality of training. This could result in serious injuries and even deaths in custody. But more, and better, training is only one side of the equation. I stressed that, even with the best training in the world, it is down to the individual officer to apply that training properly.
  5. I asked the police officers present to remember that the detainee is a person first and a suspect second. With that mindset, they would be more likely to take appropriate action. This benefits the detainee and the police.
Photo of solicitor Kevin Donoghue (centre) who discusses restraint post-incident procedures at the PFEW seminar on 16 October 2018.
Kevin Donoghue (centre) discusses restraint post-incident procedures at the PFEW seminar on 16 October 2018.

Perspective

All too often we exist in our own bubbles. The panel debate meant that the Police Federation audience heard all sides about current police restraint issues. My input helped the police understand the perspective of misconduct victims and their solicitors. And I got to hear their views, which will benefit me and my clients. I stand up for police misconduct victims in my role as a solicitor. I am glad I went to the conference to speak on their behalf.

Kevin Donoghue is the solicitor director of Donoghue Solicitors.

 

How Police Tasers Threaten Public Confidence

Picture of Kevin Donoghue, solicitor, who discusses how police Tasers threaten public confidence.
Kevin Donoghue, solicitor, considers the impact of police Tasers on public confidence.

By Kevin Donoghue, solicitor

 Recent media reports about police Tasers highlight two issues faced by the public and police alike. The first is the use of force. The second issue is accountability. Both threaten:
1. public confidence in the police
2. the doctrine of “policing by consent”, described by the Home Office as “the power of the police coming from the common consent of the public, as opposed to the power of the state.” 

Issue 1: Taser Use of Force

 
The police say that Tasers are “a low level of force”, as Chief Superintendent Paul Morrison once claimed. But as I previously wrote, this minimises the effect of these weapons. Taser assault victims suffer both primary and secondary injuries when the weapons are used.  PoliceTasers work by shooting two 11.5mm metal barbs on coiled conductive wires. The barbs attach to the victim before the Taser sends a 50,000 volt electrical charge through them. This initial assault, which can be repeated, causes puncture and burn wounds, temporary paralysis, and short-term cognitive impairment akin to dementia.
 
It is common for victims to suffer secondary injuries following the initial assault. For example, Richard Hagan was Tasered by Merseyside Police. As expected, the stun gun temporarily paralysed him, causing him to fall flat on his face. Mr Hagan lost four front teeth and had to have a bridge and crown fitted. Last week a 17-year old boy suffered a heart attack after being Tasered by police in Coventry. The teenager needed CPR after the police assault and “remains in a serious but stable condition”. And in the most serious cases, police Tasers can kill, as the tragic case of footballer Dalian Atkinson and many others show.

Police Federation Taser Campaign

 
Despite these concerns some in the police want more Tasers in the hands of front-line officers. The police officer’s union, the Police Federation, has been campaigning for Tasers for years. In January 2015 Steve White, then chair of the Federation, said that ALL police officers should be armed with Tasers. The next month the Police Federation voted for Tasers for all uniformed officers “to provide protection from terrorists”. This was despite Chris Sims, chief of West Midlands police, saying that step was “not proportionate to the threat” and risked “undermining the British policing model”. This moderating view didn’t stop the Police Federation campaign though. In January 2017 it published the results of its own survey, stating that 82% of the 6,220 officers who responded supported issuing Tasers to “a wider group of front-line officers”.
 
As with the roll out of (sometimes deadly) spit hoods, the Police Federation appears to be getting its way, despite reasonable concerns and an apparent lack of interest from its members (only 5% of federated members responded to the Taser survey). In January 2018 Hampshire Police confirmed that it would double its number of Taser-trained staff to 620. This was quickly followed in February when Thames Valley Police announced plans to increase its total number of Taser-trained officers to 390, a 50% increase.
 
But it stands to reason that more police officers armed with Tasers = more Taser use. More use = more injuries, more deaths, more miscarriages of justice. This represents a serious threat to public confidence and support, at a time when officer numbers are declining due to budget cuts. The Police Federation might want to reconsider its approach.

Issue 2: Accountability for Officers Using Police Tasers

 
The police are bound by a written Code of Ethics. It addresses the use of force, such as when an officer uses a Taser, saying:
4. Use of force
 
I will only use force as part of my role and responsibilities, and only to the extent that it is necessary, proportionate and reasonable in all the circumstances.
 
Police officers can be disciplined, and even dismissed, if they fail to meet that standard. But how does it work in practice with Taser incidents? Consider the case of PC Claire Boddie. In January 2017 she Tasered Judah Adunbi. (Watch the footage here.) The case was referred to the Crown Prosecution Service. The CPS prosecuted the officer for assault, but in May 2018 she was found not guilty on the criminal standard (beyond reasonable doubt). The judge said that the prosecution had “failed to persuade” him that PC Claire Boddie “didn’t act in self-defence”. That ended the criminal proceedings. But PC Boddie was referred to a disciplinary panel on a charge of gross misconduct, which is “a breach of the Standards of Professional Behaviour which is so serious that dismissal would be justified.”
 
Mr Adunbi’s solicitor noted that his client was only “allowed limited involvement” in the misconduct proceedings. And, as I have written, police routinely ignore guidance on outcomes in police misconduct proceedings. On 5 September 2018 PC Boddie was cleared of gross misconduct in respect of the Taser incident. She continues to serve as a police officer. Mr Adunbi is now pursuing a civil action against the police.
 

Public Confidence 

 
Police Tasers raise many practical and ethical issues. Used properly, the stun-guns can be helpful crime-fighting tools. Get it wrong and people suffer serious injuries and even death. Improper use has serious implications for victims, the police, and the public.
 
For public confidence in Taser-wielding police to be maintained we need to know that the police will abide by their Code of Ethics, especially their obligations when using force, and follow the principle of policing by consent. This must be backed by a robust and transparent police misconduct disciplinary regime to hold the police to account. We deserve nothing less.
 
Kevin Donoghue is a solicitor and the Director of Donoghue Solicitors.

Why Did Sir Cliff Richard Get So Much Compensation?

Photo of Kevin Donoghue, solicitor, who considers Sir Cliff Richard's compensation claim.
Kevin Donoghue, solicitor, considers why Sir Cliff Richard received so much compensation in his claim against the BBC and South Yorkshire Police.

By Kevin Donoghue, solicitor and specialist in civil actions against the police

On Wednesday 18 July, Mr Justice Mann, sitting in the High Court in London, awarded Sir Cliff Richard £210,000 compensation from the BBC in respect of his successful damages claim. (Official judgment here. )This is in addition to a previously agreed settlement of £400,000 with South Yorkshire Police, whom Sir Cliff also sued. There will be more compensation paid to once the full extent of “special damages”, or quantifiable losses, are known. South Yorkshire Police and the BBC will also pay legal costs, estimated in the millions. The BBC says it will appeal the decision.

Compensation awarded in this case is substantially more than the usual awards for civil actions against the police and breaches of the Human Rights Act. Why?

What Happened?

In July 2014 a BBC journalist learned that South Yorkshire Police was investigating Sir Cliff for alleged sexual offences involving a minor. The police obtained a warrant to search his home in Sunningdale, Berkshire, which was broadcast live on BBC tv. (Sir Cliff was in Portugal at the time.)

The police investigated the allegations against the singer, who was 73 at the time of the raid and still working as an entertainer. Eventually, in June 2016, Sir Cliff was told that he would not face charges.

He sued both the BBC and South Yorkshire Police for breach of privacy and under the Data Protection Act 1998.

In May 2017 South Yorkshire Police settled Sir Cliff’s civil claim for £400,000 plus costs, apologised, and gave a statement in open court accepting liability.

The BBC fought the claim, resulting in a trial on both liability (responsibility) and quantum (amount of damages).

Liability Issues

Sir Cliff (the Claimant) claimed a breach of his fundamental right to privacy and breach of the Data Protection Act. The BBC (the Defendant) fought the claim arguing that it had fundamental rights to freedom of expression and freedom of the press.

Mr Justice Mann put aside the Data Protection Act breach saying it “adds nothing to the privacy claim”.

Instead he considered Sir Cliff’s rights under Article 8 of the European Convention on Human Rights (ECHR), which in English law is found in the Human Rights Act 1998. Article 8 states:

1. Everyone has the right to respect for his private and family life, his home and his correspondence.

2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

The BBC argued that it had competing rights under Article 10 ECHR, which states:

1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers…

2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.

Here the Judge’s job was to weigh the two competing rights. Finding for Sir Cliff Richard he said that the BBC:

“infringed these (Article 8) rights without a legal justification. It did so in a serious and also somewhat sensationalist way.”

Quantum

Quantum, or the value of damages to be paid in the claim, is considered separately after liability has been established. The purpose of damages is to put the Claimant in the pre-incident position so far as possible. It is impossible for a Court to accurately value general damages and nothing can give a Claimant their lives back. An appropriate amount of financial compensation is ordered to be paid by the losing Defendant instead. The Court considered both “general damages” and “special damages”.

General Damages

Aspects of general damages vary depending on the circumstances. Sir Cliff Richard’s case included elements found in personal injury and defamation cases. Mr Justice Mann considered the following heads of claim:

(a) Damages can and should be awarded for distress, damage to health, invasion of Sir Cliff’s privacy (or depriving him of the right to control the use of his private information), and damage to his dignity, status and reputation…

(b) The general adverse effect on his lifestyle (which will be a function of the matters in (a)).

(c) The nature and content of the private information revealed. The more private and significant the information, the greater the effect on the subject will be (or will be likely to be). In this case it was extremely serious. It was not merely the fact that an allegation had been made. The fact that the police were investigating and even conducting a search gave significant emphasis to the underlying fact of that an allegation had been made.

(d) The scope of the publication. The wider the publication, the greater the likely invasion and the greater the effect on the individual.

(e) The presentation of the publication. Sensationalist treatment might have a greater effect, and amount to a more serious invasion, than a more measured publication.

Special Damages

Special damages are quantifiable losses. Each item must be proved by the Claimant.

Valuing Sir Cliff Richard’s Compensation Claim

Sir Cliff’s public profile meant that the raid on his home quickly became a massive story. Millions followed it in the news world-wide. He gave evidence in Court about its terrible personal toll. Mr Justice Mann noted that:

Sir Cliff felt trapped in his own home, and he felt despair and hopelessness leading, at times, to physical collapse. At first he did not see how he could face his friends and family, or even his future. He felt the whole world would be talking about whether he had committed the alleged offences or not. Sleeping was difficult; he resorted to sleeping pills.

And

The impression that he had was that his life’s work was being torn apart. The adverse publicity removed his status as a confident and respected artist and what he described as “a good ambassador for this country”. He felt and still feels tainted. His health suffered, and he contracted shingles, which he put down to stress. Although there was no medical evidence as to that causation I accept that throughout the entire period he was the subject of severe stress, and that that stress far exceeded the anxiety, and perhaps some level of stress, that he would inevitably have been under from the investigation by itself had the news of it not been publicised.

In addition to the physical toll, the Judge considered the damage to Sir Cliff’s reputation. After that he assessed General Damages at £190,000, noting that he had no direct comparison in existing case law. The Judge’s candid comment is worth noting: every case is different, and it is part of his job to make assessments like this.

Aggravated Damages

In some cases, the conduct of the Defendant is considered worthy of additional sanction, so that aggravated and, very exceptionally, exemplary damages can be awarded on top of the basic general damages award. Mr Justice Mann considered whether the BBC should pay an additional amount for injury to Sir Cliff’s feelings. In support of this claim, the Claimant alleged the BBC caused suffering due to:

  1. a flagrant disregard for his privacy and failure to give him adequate notice of the broadcast, so depriving him of the opportunity to seek an injunction to prevent the broadcast
  2. a failure to acknowledge wrongdoing or apologise
  3. the Corporation submitting the broadcast to the Royal Television Society awards in the category “Scoop of the Year”
  4. its conduct in litigation
  5. intrusive cross-examination.

The Judge considered each allegation in turn. He considered that the failure to give notice (in point 1) had merit but included that within the existing £190,000 award for general damages.

He dismissed the other points except point 3. The Judge said that the BBC caused additional distress in submitting the broadcast for the award, which it did not win. He awarded Sir Cliff an additional £20,000 by way of aggravated damages.

After this exercise the Judge considered if the overall amount for general and special damages was appropriate. He said:

That gives a total of general and aggravated damages of £210,000. I need to stand back and reflect on whether, overall, that is an appropriate figure to award. Having performed that exercise I am satisfied that it is. It is a large figure, but this was a very serious invasion of privacy rights, which had a very adverse effect on an individual with a high public profile and which was aggravated in the manner to which I have referred.

Special Damages

The Claimant’s quantifiable losses included professional fees due to his solicitors, PR firm, and others. He also claimed to suffer financially due to the loss of opportunity to publish a revised biography.

The Judge was not asked to rule on specific amounts. Instead, to help the parties reach agreement or guide future hearings, he considered whether “causation” was established by the Claimant in respect of the various things Sir Cliff claimed.

Asking the question, “did the breach cause the alleged loss?” he considered the heads of Sir Cliff’s special damages claim in turn, mostly approving them.

(NB It is likely that special damages were also included within the agreed compensation paid by South Yorkshire Police.)

Damages are not a windfall

As Sir Cliff Richard’s case shows, the compensation has been either agreed as fair between the parties, or court ordered after careful examination. In this respect Sir Cliff’s case is identical to every civil compensation award of damages. Money paid is not a “windfall”, “jackpot”, or other disparaging terms. As Mr Justice Mann said:

A claimant is entitled to proper compensatory damages and the figure I have specified is a proper figure for that purpose.

Why Celebrities are Different

Where Sir Cliff’s case differs is in the unusual size of the award for damage to his reputation. Most claimants suffer damage to their reputations in wrongly publicised matters involving the police but they don’t get awarded nearly as much compensation.

Consider my client RL’s story, which has many similarities to Sir Cliff’s case. RL was a working man with no criminal convictions. Essex police raided his flat in error looking for drugs. Both RL and his girlfriend were held in their home for over an hour while the police conducted a full search and established their innocence.

The media were tipped off about the raid, just like in Sir Cliff’s case. Local newspaper staff filmed and photographed the raid and later reported it. The paper described “Arrests after police bust for suspected drug dens”, identified the location in the front page headline “30 police storm homes in Rifle Hill drugs blitz”, and showed a blurred out photograph of a man being led away next to a caption reading “A suspected drug dealer is led away (left) following raids by police in Rifle Hill, Braintree.”

Although Mr L was not identified in publicity, his flat number was clearly visible in one image. The reader would be under the impression that my client was the man being led away.

To make matters worse, the police gave a statement which sought to justify the raid, saying that they went in to my client’s home because “information was brought to our attention about the possibility of drug use”.

Compensation for Damage to Reputation

While there are similarities to Sir Cliff’s case, RL’s case was never going to justify such an award. The damage to his reputation was not as significant as Sir Cliff’s. RL is not a world-famous celebrity. He was not personally identified in media coverage. The allegations were not as offensive to society. And yet the implication that my client was somehow involved in criminal activity still impugned his reputation. He suffered due to the police’s misconduct and was rightly compensated for it. His award was £4,000, which was an excellent settlement in the circumstances, and far more than the £1,500 Essex Police initially offered.

There can be no doubt that Sir Cliff’s high public profile played a part in the size of his award. The nature of the allegations, the “sensationalist” publicity, and his unusually high losses, were all factors. Celebrities may say they’re just like you and me, but in some ways that’s just not true.

 

Contact Donoghue Solicitors for help with your civil action against the police on 08000 124 246 or by completing the online form on this page.