Since writing that piece Donoghue Solicitors has been contacted by people who have been wrongly convicted using false positive drug test evidence. I recently spoke with one such client, John (name changed). We now represent him in his pursuit of justice.
Consequences of a False Positive Drug Test
In December 2016 John was pulled over by the police while driving. During the stop the police told him they wanted to perform a roadside drug test. John agreed as he had nothing to hide. To his shock, the result was positive for cannabis in his system.
Despite his protests, John was arrested for “drug driving” and escorted to a local police station. The police took a blood sample and bailed him, pending the outcome of a forensic drug test.
As required, John returned to the police station in February 2017. He was sure the test results would be negative. But the blood test report, provided by Randox Testing Services, came back with a (false) positive result for cannabis, recording a high rating of 5.5. This was over twice the legal limit.
The police charged John with drug driving. He was bailed to appear at his local magistrates’ court in February 2017. At court John discussed the matter with the duty solicitor. Even though he was sure the Randox Testing Services toxicology report was incorrect, the evidence was backed by science and bound to be accepted by the court.
He pleaded guilty and was convicted for “driving a vehicle when the proportion of a controlled drug exceeded the specified limit”. John got a 12 month ban, and was ordered to pay a £300 fine, victim surcharge, and costs. His local newspaper also published details of the case.
Effects of a Drug Driving Conviction
The conviction had a devastating impact on John’s life. He had no previous convictions and was upset and embarrassed by the stain on his character. The newspaper report meant that his family, friends, and local community knew what had happened. He felt guilty about letting everyone down.
The financial impact of the drug driving conviction was huge. John lost his job as an IT support professional because of it. Before his arrest, John’s well-paid role meant he had responsibility for IT systems in area schools. The job was demanding in terms of work, but also character, as only the most trusted professionals with clean records could do on-site school visits. When his company found out about the positive drug test they stopped him making on-site calls. He relied on his car to get to and from work and other jobs while waiting for his court date. But, after his driving ban, John’s employers felt that they had no alternative but to let him go.
Understandably, all this became too much for John. He felt helpless. He was depressed and frustrated at his circumstances and the loss of independence.
Setting Aside the Conviction
In February 2018, John’s duty solicitors contacted him out of the blue.
They said that the Crown Prosecution Service had been in touch and that John’s original sample of blood had been re-tested returning a result which was below the legal limit.
John’s criminal solicitors applied to the court to re-open the case on the basis that the prosecution relied on unsafe evidence, namely the false positive drug test. The magistrates accepted this argument and the CPS immediately withdrew the charge. This meant that John’s conviction and sentence had been set aside.
But by this time John had completed his 12-month ban and experienced significant personal and professional losses. Understandably, he felt wronged by what had happened. He contacted my firm after seeing that we are solicitors who help people who have suffered miscarriages of justice due to the Randox Testing Services scandal.
We are now working with John to help him get his life back on track. After everything he’s been through, justice and compensation from those responsible is the least he deserves.
Among other charges, PC Hooper is alleged to have stolen a colleague’s biscuits. This led to questions about whether the allegations against him merit a full disciplinary hearing. In the comments section of the Evening Standard piece, one person said:
With all the serious stuff going on in the world is a police officer taking a tin of biscuits and speeding in a police vehicle really worth a police misconduct hearing, surely a severe ticking off by a senior officer would have sufficed.
I suspect many would agree if it was as simple as that. But when we dig deeper it’s clear why this matter went to a disciplinary panel. It is about more than a tin of biscuits. As I understand it, there are three allegations against this Metropolitan Police officer. It is alleged that he:
1. misappropriated property (stole the biscuits) AND
2. sought to abuse his position to have a fixed penalty notice for speeding cancelled AND
3. gave false statements in respect of both allegations.
If proven, the allegations against PC Hooper are serious, and go right to the heart of public trust in the police and the officer’s integrity. They matter because police officers are professionals. This means that they, like solicitors and doctors, are bound by a Code of Ethics, which you can read here. The police’s Code is meant to:
support each member of the policing profession to deliver the highest professional standards in their service to the public.
It is rooted in Sir Robert Peel’s 1829 “principles”. Peel’s principles emphasise the need for the police to “secure and maintain public respect”. They have been updated for modern policing in the 2014 Code of Ethics. It is based on nine policing principles, which are:
You are answerable for your decisions, actions and omissions.
You treat people fairly.
You are truthful and trustworthy.
You always do the right thing.
You lead by good example.
You make choices on evidence and your best professional judgement.
You are open and transparent in your actions and decisions.
You treat everyone with respect.
You act in the public interest.
Applying the Police Code of Ethics
The Code of Ethics applies the policing principles in Standards of Professional Behaviour. The Standards “reflect the expectations that the professional body and the public have of the behaviour of those working in policing.”
In PC Hooper’s case, the most important and relevant Standard is the first one:
1. Honesty and integrity
I will be honest and act with integrity at all times, and will not compromise or abuse my position.
This would cover the first two allegations. The third allegation is also dealt with in a guidance box for the first standard:
Examples of meeting this standard are when you:
• are sincere and truthful
• do not knowingly make false, misleading or inaccurate oral or written statements in any professional context.
The disciplinary panel must decide if PC Hooper failed to meet this Standard, and any other relevant ones, in respect of the allegations made against him.
Sanctions for Breach of the Code of Ethics
If proven, the allegations against PC Hooper would amount to a breach of the Code of Ethics. It would then fall to the disciplinary panel to decide on an appropriate sanction. Options include management advice, written warnings, and dismissal.
But what of the suggestion that this is a storm in a teacup (presumably served without biscuits)? Could the police have dealt with it informally? Again, the police Code of Ethics addresses this at point 5.1.1 by noting that
Different procedures exist according to the type of unprofessional behaviour or misconduct alleged.
Supervisors are expected to use their professional judgment and discretion to proportionately deal with alleged unprofessional behaviour. Where appropriate, they must
act where a concern is raised about any behaviour, level of performance or conduct which may amount to a breach of the Code. (rule 5.1.4)
Actions to address breaches range from a “ticking off” (at the lower end of the scale) to referrals for disciplinary hearings, suspension, dismissal, and criminal proceedings (at the higher end). PC Hooper’s supervisors clearly felt a referral to the Directorate of Professional Standards was appropriate. Is it because, along with the serious allegations we know about, there is even more to this story? The Evening Standard reports Inspector Mark Bullen
said there had been a number of aggravating factors which had led to the misconduct allegations rather than matters being dealt with by way of management advice.
For transparency and to give the panel all relevant information, details of the “aggravating factors” should also come out in the hearing, which continues.
On Monday 8 January 2018 the Independent Office for Police Conduct (IOPC) replaced the Independent Police Complaints Commission (IPCC). The IOPC is now responsible for overseeing the police complaints system in England and Wales.
The government describes the IOPC as “the reformed police watchdog”. Many who dealt with the IPCC agree that change was long overdue. But will it improve the police complaints system?
1. Leadership Structure
The Independent Office for Police Conduct has a new leadership structure compared to the Independent Police Complaints Commission. Dame Anne Owers, Chair of the IPCC and its Commissioners, has been replaced by Michael Lockwood, Director General of the IOPC, and a Board. The new organisation has non-executive directors, and executive team, Regional Directors, and a Director for Wales.
“will ensure clear lines of accountability and a streamlined decision-making process.” The IOPC says this change was necessary because “Since 2013, we have doubled in size and now take on six times as many investigations. This led us to ask the Home Office for structural changes to better suit our much-expanded organisation. These changes were agreed through the Policing and Crime Act 2017.”
Michael Lockwood is an accountant with a background in local government. Neither he, nor the executive team, regional directors, or Director for Wales, have a police background. They say:
“We are independent, and make our decisions entirely independently of the police and government.”
initiate its own investigations without relying on a force to record and refer a particular case for investigation
reopen cases it has closed where there are compelling reasons, such as new evidence
increase the IOPC’s independence from the police by abolishing ‘managed’ and ‘supervised’ investigations
investigate all disciplinary investigations against chief officers
present cases against officers in the police disciplinary process when the force disagrees with the IOPC’s findings.
Government Minister Nick Hurd said the effect of these changes will be to:
“provide powerful scrutiny for policing, with new powers to begin investigations when they are deemed appropriate and be decisive in concluding cases.”
3. User-Friendly Website and Social Media Presence
The new IOPC website (www.policeconduct.gov.uk) replaces the old, and to many, confusing www.ipcc.gov.uk site (this domain name now takes you to the IOPC site). The new site is mobile-friendly and easy to navigate. This is important as many people use their smartphones to get access to the internet. In the same vein, the IOPC has replaced the IPCC on social media. Follow it on twitter @policeconduct. Contact the IOPC’s helpdesk on twitter at @IOPC_Help.
What Stays the Same?
As with the IPCC, the Independent Office for Police Conduct oversees the police complaints system and sets standards by which police deal with complaints in England and Wales. It is not limited to the police though, as the IOPC oversees:
all police forces in England and Wales
the National Crime Agency
Her Majesty’s Revenue and Customs
the parts of the Home Office that carry out border and immigration functions
police and crime commissioners
the Mayor’s Office for Policing and Crime
the Gangmasters and Labour Abuse Authority
British Transport Police
Ministry of Defence Police.
Even though the IOPC’s new powers (mentioned in 2 above) come from the Policing and Crime Act 2017, it has yet to implement most of the changes. This means that, on the IOPC’s inception date (8 January 2018) the old, and much-derided systems, remain in force. For example, the IOPC’s statutory guidance is inherited from the IPCC. The IOPC says that it will update this in summer 2018, and issue advice notes as required. But for now, it is a carbon copy of the IPCC’s police complaints scheme. This means that most complaints are still dealt with internally by police force Professional Standards Departments. This is especially concerning in cases of serious corruption involving senior police officers, as I explained in this blog: Are police sexual exploitation cases being brushed under the carpet?
As the screenshot below shows, a twitter user asked the IOPC when it expects to “be able to initiate inquiries without referral from a force and to determine appeals”. The IOPC said “The Home Office anticipate they will bring these powers in early 2019.”
The Challenge for the Independent Office for Police Conduct
Hailing the IOPC, Minister for Policing and the Fire Service Nick Hurd said:
“We are absolutely determined to make the police complaints and discipline systems simpler and more transparent for the benefit of the public. We want confidence in policing to continue to grow and be underpinned by the vital role the reformed IOPC will play.”
I am disappointed that the publicity surrounding the new watchdog was not backed up with real, actionable, power from day one. It’s important for public confidence in the police service that the government and IOPC move swiftly and decisively to implement the Policing and Crime Act statutory powers. Without them, replacing the IPCC with the IOPC will be little more than a wasteful rebranding exercise.
Recently, a criminal defence solicitor called me about a potential new client. (I regularly receive referrals from criminal lawyers as I specialise in actions against the police.) The solicitor told me her client was caught up in the Randox Testing Services scandal.
I researched the matter. What I found out was shocking.
The solicitor told me that her client had been convicted of drug-driving. The prosecution relied on a forensic toxicology report from Randox Testing Services (RTS).
Randox is a private company which provided forensics tests. It is in the middle of “the biggest forensic science scandal in the UK for decades”. Last month, Nick Hurd, the Minister of State for Policing and the Fire Service, updated Parliament on the ongoing criminal investigation into the company’s activities.
He confirmed that, in January 2017, Randox Testing Services reported to Greater Manchester Police that “there may have been manipulation of test results at their laboratories”. He continued, “The alleged manipulation raises doubts about the reliability of some test results, which may have been subsequently relied on in court proceedings (criminal, coroners and family).”
The Government Minister confirmed that “Most drug tests from RTS between 2013 and 2017 are being treated as potentially unreliable.” More than 10,000 cases have been identified. It is expected to take up to three years to retest the evidence.
The company also gave reports to parties in civil cases such as family law matters to:
– local authorities dealing with child protection decisions
– private employers for drug and alcohol testing.
Another company, Trimega Laboratories, carried out similar forensic tests between 2010-2014. The government considers those “potentially unreliable” too. But it does not know how many people might have been affected by similar, unreliable, reports. This is because of the time elapsed and poor record-keeping.
What Did Randox Do Wrong?
A positive result in a sample showed that the tested drug was present, but
Reports about the amount of drugs in the sample could be inaccurate because the comparison data was manipulated.
A liquid sample is taken from a suspect and analysed for the presence of an illegal substance.
To verify that the testing system is functioning correctly, a Quality Control material with a known amount of the illegal substance is tested in parallel. This ensures that the system is delivering accurate results.
If a sample tested positive then the drug was present to some degree in the sample.
The Quality Control materials are used to ensure that the positive results reported are within an acceptable 20% variance.
If the Quality Control value is not within this variance then the results cannot be used in court.
The analysts were manipulating the Quality Control data and because of this RTS cannot confidently state (before further testing) that the samples tested in runs where the controls were manipulated, fell within this 20% variance.
Regardless of whether the Quality Control fell inside or outside this variance, any positive samples in the run contained the drug.
Neither the Samples, nor the Quality Control materials themselves have been interfered with.
Having discovered this “data manipulation” we immediately reported this to the Forensic Regulator, UKAS and the NPCC and have worked very closely with all authorities to resolve the issue.
Can the Randox Samples Be Retested?
Randox says, the samples taken from those affected were not interfered with by the rogue staff members. This means that they could be re-tested using accurate quality control data. Those involved “are prioritising the most serious and pressing cases but all cases where there could have been an impact on prosecution will be assessed, retested and appropriate action taken.”
But, as the National Police Chiefs Council (NPCC) points out, retesting might not always be possible. 10% of samples are no longer held, cannot be retested or relied upon. The NPCC says that in those cases “a full disclosure pack will be created and passed to the CPS for review and to determine appropriate action.” The difficulty for the CPS will be determining how crucial the forensic test results were in securing convictions or increasing sentences.
The Crown Prosecution Service is seeking adjournments in ongoing cases where it is relying on Randox testing reports.
Why Do These Forensic Tests Matter in Court Proceedings?
Randox Testing Services was a well-respected company which contracted with most of our police forces. A positive toxicology report from it could be crucial in securing convictions. Prosecutors and jurors alike put great faith in the science, especially in serious criminal cases. A desire to see “justice” done can influence the dispassionate analysis of evidence.
Some people who have been convicted in cases involving Randox reports are bringing legal challenges. Two men who were jailed for years after drug-driving convictions are taking action in the Court of Appeal. Both will seek to have their convictions quashed on the basis that the forensic evidence was unreliable.
They are not alone. Billal Hartford has already had his wrongful conviction for drug-driving overturned after the court agreed that Randox Testing Services’ report was inaccurate. And, the BBC reports, around 50 other drug-driving prosecutions have been dropped because the original test results may have been manipulated.
Is Randox Testing Services Liable to Pay Compensation?
Randox Testing Services says that it has “no idea” why its employees manipulated the data. The company describes their behaviour as “incomprehensible and bizarre”, because it took more effort to execute the “data manipulation”. The company says:
“We regret the impact of this, and the subsequent hassle and upset it has caused.”
While this is helpful, it does not necessarily absolve the company of blame. The courts expect a lot of expert witnesses, particularly those providing forensic evidence. This is because of the potential for miscarriages of justice mentioned above.
“But a high degree of responsibility is entrusted to expert witnesses in family cases. Erroneous expert evidence may lead to the gravest miscarriage of justice imaginable – the wrongful removal of children from their families.”
Trimega was ordered to pay legal costs in that case, and again in a later case, due to its inaccurate reporting.
So far, re-tests on samples involved in sexual offence cases, violence or homicide have showed no change.
The retesting process will take years. If Randox’s erroneous reporting directly resulted in wrongful convictions it is possible that claims in negligence could be made. A Claimant must meet three tests to prove negligence:
The tortfeasor (Randox Testing Services) owes the Claimant (wrongfully convicted person) a duty of care
Randox failed in that duty
The Claimant suffered a loss.
Looking at these in turn:
There are strong arguments to show a duty of care, despite there being no direct relationship between the Claimant and Randox. Depending on the circumstances, the effect of the forensic report may have led to a conviction or more serious penalty. As Mr Justice Baker said, the courts hold experts to a high standard. Costs orders are made against them when they fail to live up to those standards. And, in these cases, the Defendant would be the company, not the individual (rogue) scientists.
Producing inaccurate reports, no matter the reason, is a clear failure of the company’s duty. The company may argue that it is not responsible as, it would say, the rogue staff members were acting outside of their duties. There are strong arguments against that view.
A wrongful conviction could lead to compensation for various losses, including:
A claim in negligence could be made against Randox provided all these elements are present. But, as I said earlier, every case is unique, and Randox Testing Services would, no doubt, fight any such claims.
Even if it’s possible to bring a claim, that does not mean it will succeed.
Are the Police Responsible for Randox’s Failings?
It’s possible that the police forces which contracted with Randox are also responsible. This is because of a combination of common law and statutory obligations. Claims could include arguments based on:
The legal principle of vicarious liability.
Breach of the Data Protection Act 1998, in particular, the Schedule 1 Principle requirements that “Personal data shall be accurate and, where necessary, kept up to date” and “Appropriate technical and organisational measures shall be taken against unauthorised or unlawful processing of personal data and against accidental loss or destruction of, or damage to, personal data.”
Breaches of the Human Rights Act (1998). The Act gave effect to the European Convention on Human Rights. Claimants could argue breaches of Articles 5 (liberty and security), 6 (right to a fair trial), 8 (privacy), among others.
I expect that police forces would fight any claims based on flawed Randox Testing evidence. Some forces seem to operate a “fight every claim” policy. There’s no reason to think they would behave differently given the potential scale of miscarriages of justice.
But the police have another problem.
Government Minister Nick Hurd told Parliament that in January 2017 Randox Testing Services reported its concerns about data manipulation to Greater Manchester Police. Randox’s accreditation was pulled on 21 March. I don’t know if the company continued to provide reports before then. It is likely that they did because they contracted with most of the police forces in England and Wales.
So now Chief Constables of the police forces involved might be asked: what did you know, and when?
The CPS says that it will seek adjournments of ongoing cases so samples can be retested. But what about those cases where people were convicted on Randox forensic evidence between January and March 2017? What did the police and/or CPS do when they became aware of the problems at Randox Testing Services?
What About Claims Against Trimega Laboratories?
Trimega Laboratories also provided “potentially unreliable” forensic reports. But the situation at Trimega Laboratories Limited is even more complicated. Timega is in liquidation. Any potential claim would involve restoring it to the Companies register. And, as Nick Hurd pointed out, it may never be possible to identify all those affected by the data manipulation because of poor record-keeping. Even if they could be found, the Minister said:
Samples from Trimega cannot be retested, because of the extremely limited chain of custody records and the natural degradation over time of any remaining original samples.
Sadly, it may be impossible to prove that Trimega Laboratories was responsible for inaccurate reports for one, or both, of these factors.
Am I Out of Time to Claim Against Randox or Trimega?
Trimega produced potentially inaccurate reports as far back as 2010. Randox reports from 2013 are also suspect. This means that it may be too late to bring claims for some/ all heads of claim outlined above without court approval. Read more about time limits in these claims here.
How Can I Claim Against Randox or Trimega?
Do you think Randox or Trimega produced inaccurate forensic evidence in your case? Was that evidence used to secure your conviction (including if you pleaded guilty to an offence)? If so, these are the steps you could take:
Contact the solicitors who dealt with your criminal defence. Ask them to review your file to find out if Randox or Trimega produced a forensic report in your case. Don’t delay! Most of the time, solicitors can destroy files six years after closure. Contact us if you would prefer to use a different criminal defence solicitor. We can put you in touch with someone who specialises in criminal court appeals.
Your criminal solicitors should be able to find out if your sample can be retested. Depending on the circumstances, you may be able to get your conviction set aside.
If you are successful, we can review your case with you and your criminal solicitors. Where appropriate, we can help you claim compensation on a “no win no fee” basis.
A final thought: those in the criminal justice system trusted Randox Testing Services and Trimega Laboratories to provide accurate, incontrovertible evidence. The companies failed in their task, leading to potential miscarriages of justice with devastating consequences. I trust Randox, the government, and police will act with all due haste to identify cases based on unsafe evidence. And I invite those involved to take a sensible approach to paying compensation. The victims of these scandals have suffered enough.
The College, which issued the guidance, describes itself as “the professional body for everyone who works for the police service in England and Wales. Our purpose is to provide those working in policing with the skills and knowledge necessary to prevent crime, protect the public and secure public trust.”
The College says that the guidance should help those who conduct misconduct proceedings. It does not replace existing guidance. Instead, it pulls together relevant legislation, case law, and good practice into one document. By doing so, the College hopes the guidance will “bring consistency in applicable outcomes following findings in misconduct proceedings.”
But it warns that it “does not override the discretion of the person presiding over the proceedings and it cannot and should not prescribe the outcome.” It also says that even though, “The guidance is there to assist those presiding over misconduct proceedings, they are not required to use it.“
So what’s the point? The College says that it is there to “assist ensuring consistency in decision making.”
If so, then it could help promote fairness to both police and public, accountability, and transparency. Such guidance is long overdue. Because, as, one of my client’s cases shows, decisions in police misconduct proceedings can be curiously lenient to say the least.
Police Assault and Battery
Recently, my client “Peter” settled his compensation claim against Northamptonshire Police for £10,000 plus legal costs.
Peter and his partner were separated. She had the children. One evening Peter was home in his flat when his partner called. She told Peter that she did not like him and he would never see his children again. He was upset and got drunk to numb his feelings. The neighbour in the flat below called the police, saying that she heard crying and banging.
Two officers, a female police constable (PC C) and male special constable (SPC Y), were sent to investigate. The call was logged as ‘a person threatening to commit suicide’. (Peter denied he wanted to do this.) Paramedics also attended with an ambulance.
The female police officer, PC C, was wearing a body worn video camera. It filmed some of what happened. PC C talked to Peter, who said he did not want their help or to go to hospital.
The officers ignored Peter’s wishes and tried to get him to his feet. They banged his head on a wall and pushed him against it. They handcuffed Peter to the rear, telling him this was “for his own safety”.
The officers walked Peter out of his flat onto a communal landing area above a stairwell. They started walking down the stairs. The handcuffs hurt. They were too tight, and Peter begged the police to remove them. He got upset and raised his voice when they ignored him. SPC Y told Peter to stop shouting or “I will drag you down”.
Peter, who was still drunk, said, “Do it. Do it.” The special constable said, “O.K.” and pulled Peter forwards. Peter fell face first down six stairs. The handcuffs prevented him breaking his fall. Peter smashed his face and right shoulder against the wall and floor at the bottom of the stairs.
He screamed in pain. SPC Y aggressively shouted, “Get up!”. Peter thought the police officer might assault him again, so he kneed the special constable in the groin.
The police dragged Peter to his feet and SPC Y put him in a headlock. They took him to the ambulance and SPC Y told Peter that he is under arrest for assaulting a police officer.
SPC Y put leg straps on Peter. These, with the handcuffs, made Peter completely immobile and vulnerable.
But SPC Y goaded him, asking Peter “How many of us would you like to come down and sit on yer?”
The paramedics took Peter to hospital. Blood tests confirmed Peter had not taken any medication. As he had said, he did not attempt suicide.
The police took Peter to Brackmills Criminal Justice Centre. An officer interviewed Peter and put the “assault PC” allegation to him. Peter denied he was responsible and said again that SPC Y threw him down the stairs.
The police released Peter after 17 hours saying they would take “no further action”.
Peter filed a complaint against the police and an investigator took a statement from him. Investigators also took statements from PC C and SPC Y, and interviewed them both under caution. PC C described the actions of SPC Y- of pulling Peter down the stairs- as being “incorrect” and “excessive”.
But despite this SPC Y denied any wrongdoing. Even though PC C’s body worn video showed what had happened, he denied dragging Peter down the stairs. He said that he had merely pulled Peter closer to him to take him down the stairs. And he blamed Peter for his fall, saying that Peter dropped his weight on his legs and fell down.
SPC Y was unrepentant. He maintained that his actions were reasonable, lawful, and necessary.
Despite this, he was accused of alleged gross misconduct. After a misconduct hearing SPC Y received “final written warnings” in respect of three proven misconduct charges:
authority, respect and courtesy
use of force
Was that the right decision? Consider the “Guidance on outcomes in police misconduct proceedings” and make your own mind up.
What is police misconduct?
The “Guidance on outcomes in police misconduct proceedings” says that:
Misconduct is generally defined as unacceptable or improper behaviour and for police officers will involve a breach of the Standards of Professional Behaviour set out in Schedule 2 to the Conduct Regulations.
Under Regulation 3(1) of the Conduct Regulations:
misconduct means a breach of the Standards of Professional Behaviour
gross misconduct means a breach of the Standards of Professional Behaviour which is so serious that dismissal would be justified.
Purpose of police misconduct regime
It might surprise you to find out that “misconduct proceedings are not designed to punish police officers” (point 2.10). Instead, maintaining public confidence is key. As Lord Carswell stated in R (Green) v Police Complaints Authority:
“Public confidence in the police is a factor of great importance in the maintenance of law and order in the manner which we regard as appropriate in our polity. If citizens feel that improper behaviour on the part of police officers is left unchecked and they are not held accountable for it in a suitable manner, that confidence will be eroded.”
On this basis, the guidance states that the police misconduct regime should:
maintain public confidence in and the reputation of the police service
uphold high standards in policing and deter misconduct
protect the public.
There is a three-stage test for adjudicators considering police misconduct. They must:
assess the seriousness of the misconduct
keep in mind the purpose of imposing sanctions
choose the sanction which most appropriately fulfils that purpose for the seriousness of the conduct in question.
Seriousness of police misconduct
The panel should assess seriousness by considering:
the officer’s culpability for the misconduct
the harm caused by the misconduct
the existence of any aggravating factors
the existence of any mitigating factors.
As the guidance notes at 4.10:
Culpability denotes the officer’s blameworthiness or responsibility for their actions. The more culpable or blameworthy the behaviour in question, the more serious the misconduct and the more severe the likely outcome.
And, at 4.11:
Conduct which is intentional, deliberate, targeted or planned will generally be more culpable than conduct which has unintended consequences, although the consequences of an officer’s actions will be relevant to the harm caused.
Consider SPC Y’s conduct in the light of this guidance.
SPC Y had no power in law to arrest Peter. This is because he had no honest belief that Peter was guilty of the offence for which he was arrested. He deprived Peter of his liberty without legal cause. False imprisonment is a serious matter.
Also, the special constable deliberately (or recklessly) assaulted Peter. SPC Y then tormented Peter, abusing his position of authority and humiliating his victim. After that SPC Y tried to avoid responsibility for his actions, blaming Peter for his fall. He refused to apologise or accept blame, even in the face of criticism from his colleague PC C and her body worn video evidence.
There is no doubt in my mind that SPC Y was responsible for his actions. This should have put him in the “more severe” category of likely outcomes.
Moving on to the harm caused by the misconduct, the guidance lists physical injury and loss of liberty as types of harm (at 4.57). It notes that “harm will likely undermine public confidence in policing.” And urges adjudicators to “always take seriously misconduct which undermines discipline and good order within the police service…”
SPC Y appeared to be out of control when he assaulted Peter. Even after the initial assault, he failed to regain his composure. He put Peter in a headlock, applied leg straps, and goaded him. Taken together, these physical assaults and false imprisonment amounted to harm likely to “undermine public confidence in policing.”
The guidance describes aggravating factors in police misconduct proceedings as “those tending to worsen the circumstances of the case, either in relation to the officer’s culpability or the harm caused.”
Relevant factors which show a higher level of culpability or harm include:
abuse of trust, position, powers or authority
deliberate or gratuitous violence or damage to property
concealing wrongdoing in question and/or attempting to blame others
vulnerability of the victim.
SPC Y abused his position of authority as a police officer. He deliberately and repeatedly assaulted an intoxicated, and vulnerable, victim. He then tried to deflect blame, and refused to apologise for his wrongdoing. All this suggests a higher level of culpability and harm to the victim.
The guidance says “Mitigating factors are those tending to reduce the seriousness of the misconduct.”
We don’t know what SPC Y raised in mitigation during his misconduct hearing. Relevant factors may have included:
misconduct confined to a single episode or brief duration
any element of provocation, threat or disturbance which may have affected the officer’s judgement, eg, in relation to the use of force in the heat of the moment
acting pursuant to a legitimate policing purpose or in good faith, ie, a genuine belief that there was a legitimate purpose but getting things wrong
mental ill health, disability, medical condition or stress which may have affected the officer’s ability to cope with the circumstances in question
whether the officer was required to act outside their level of experience and/or without appropriate training or supervision
SPC Y may also have offered personal mitigation, references etc.
Applying the guidance on outcomes in police misconduct proceedings
SPC Y’s conduct was considered serious enough to be dealt with at a misconduct hearing. The available sanctions were:
final written warning
dismissal with notice
dismissal without notice.
The guidance emphasises the need to “Consider less severe outcomes before more severe outcomes” and the misconduct panel stopped short of dismissal. It issued final written warnings instead. Why? When you consider the seriousness of his misconduct and the College of Policing guidance it strikes me that SPC Y got off lightly.
Peter and I both share concerns that this sends the wrong message to SPC Y and his colleagues. In effect, you’ll get away with it, even with body worn video evidence proving police misconduct.
The College of Policing says it hopes “The introduction of the guidance will mean there is increased fairness and proportionality in cases which is important for officers and public confidence in the hearings.”
If the way SPC Y’s misconduct was dealt with is anything to go by, it is long overdue.
Recently I wrote about the serious issue of police abuse of position for a sexual purpose. I expressed concern that the police are not tackling the issue, causing serious harm to victims. As a recent report shows, I am not alone. But, what it also shows is that police staff at all levels, from senior officers to volunteers, are now on notice.
What is Police Abuse of Position for a Sexual Purpose?
This form of serious corruption is defined as:
“Any behaviour by a police officer or police staff member, whether on or off duty, that takes advantage of their position as a member of the police service to misuse their position, authority or powers in order to pursue a sexual or improper emotional relationship with any member of the public. This includes: committing a sexual act, initiating sexual contact with, or responding to any perceived sexually motivated behaviour from another person; entering into any communication that could be perceived as sexually motivated or lewd; or for any other sexual purpose.”
Police abuse of position for a sexual purpose is a nationwide problem. It affected all but one police force during the review period March 2014-March 2016.
40% of allegations involved vulnerable victims of crime
39% of accusations of police abuse of position for sexual gain involved victims of domestic abuse
Less than half (48%) of these police abuse cases were reported to the Independent Police Complaints Commission. This was despite clear guidance from HMICFRS and others.
Between 1 December 2013 and 30 November 2014 only 33 officers had been dismissed after having a relationship with a vulnerable person. This “apparent disconnect” between the number of alleged cases and disciplinary action means that some of these predators are still serving, giving them the opportunity to repeat their misconduct.
In its January 2017 report HMICFRS recommended action to deal with police abuse of position for a sexual purpose. It said:
“Within six months, all forces should have started to implement a plan to achieve the capability and capacity required to seek intelligence on potential abuse of authority for sexual gain. These plans should include consideration of the technology and resources required to monitor IT systems actively and to build relationships with the individuals and organisations that support vulnerable people.”
Police Response to the HMICFRS January 2017 report
Did the senior officers who set force policy listen to HMICFRS?
The inspectorate gave forces until 8 June 2017 “to develop and begin to implement plans to achieve the capability and capacity required to seek intelligence on potential abuse of position for a sexual purpose.”
“The majority of police forces in England and Wales still have work do.”
It found that only two of the 43 police forces already had adequate capacity and capability in place. Of the remaining 41 forces:
Almost half (21) of force plans did not contain any reference to reviewing and improving the capability and capacity to identify potential abuse of position for a sexual purpose
Nine force plans contained some elements of capacity and/or capability but the force had either not commenced implementation or had provided insufficient information for HMICFRS to assess progress
Almost half of all forces did not have either the capability or capacity to monitor and audit every aspect of their IT infrastructure. (HMICFRS said that this was important to prevent and detect misuse of information held on police computer systems.)
Despite not being “resource intensive”, six forces failed to reassure HMICFRS that they had built links with staff in agencies that support domestic abuse victims
More than half (26) of all forces had failed to implement their plans, or had supplied such minimal detail that HMICFRS could not evaluate their progress.
Most concerning was the fact that 11 police forces did not provide sufficient information to assess whether they were responding to any elements of the recommendations.
The inspectorate noted creditable work at a national level. But, in one way or another, most police forces have failed to fully address this serious form of police misconduct. This is despite chief officers in those forces approving the national work, which focused on 3 areas:
Definition and strategy
1. Definition and strategy
An example of the work done at national level is that of the National Police Chiefs’ Council (NPCC). The NPCC includes senior police officers from every force in the country. In April 2017 it agreed a national strategy to deal with police abuse of position for a sexual purpose. This included creating a new definition for this form of serious police corruption. (HMICFRS previously referred to it as “abuse of authority for sexual gain”.) I quoted the agreed definition earlier.
It is worth noting that the NPCC definition includes corruption by police officers and police staff members. These include volunteers or staff contracted into policing or support roles. It has the potential to greatly increase the number of people caught by the guidance. This makes sense from a practical and public perspective. Police abuse of position for a sexual purpose should be dealt with the same way, regardless of the title of the person who committed it.
The NPCC strategy is intended to “prevent such behaviours from occurring in the first instance”. It also emphasises a commitment to working together. Forces say they will focus on “the means by which we will improve our collective approaches to the utilisation of proactive tactics to better gather intelligence, identify corrupt individuals and vigorously pursue perpetrators in an effort to remove them from the service for the benefit of the public and the service alike”.
They promise to focus on:
Prevention – this covers vetting, professional boundaries training, and guidance for supervisors;
Intelligence – this covers intelligence gathering, relationships with other agencies that support vulnerable victims, IT monitoring and audit, development of intelligence and the identification of intelligence gaps;
Enforcement – this covers recording cases as serious corruption, oversight of the force’s CCU, referrals to the IPCC, use of an investigative checklist, victim support and access to suitably trained specialist staff; and
Engagement – this covers working with support agencies, internal and external communication strategies, raising awareness and learning organisational lessons from previous cases
The consequence of this is that senior officers in all police forces agreed on the issue, and committed to work to prevent it.
2. Guidance by the College of Policing on Abuse of Authority for a Sexual Purpose
Supporting the NPCC’s work is the College of Policing (CoP). The CoP is the professional body for everyone who works for the police service in England and Wales. This includes police officers, special constables, police staff, and police volunteers.
“There is no place in policing for those who abuse their position for sexual purposes.”
The CoP and NPCC agreed the guide in April 2017. All police forces received copies and everyone working within the police, even volunteers, should now know and follow the guidelines.
3. Complaints Investigations: The Role of the Independent Police Complaints Commission (IPCC) and government
The IPCC amended its mandatory referral criteria in response to HMICFRS’ January 2017 report. HMICFRS was critical of the police’s failure to recognise the problem of abuse of position for a sexual purpose as a form of serious corruption. As a result, such cases were not referred to the IPCC, or not referred “without delay” as required.
It made two recommendations:
Within three months, all forces should complete a retrospective review of allegations and consider referrals to the IPCC.
Within three months, forces should establish effective procedures to identify all future allegations of abuse of authority for sexual gain as serious corruption matters and make appropriate referrals to the IPCC.
The IPCC also wrote to all chief constables in December 2016 raising the mandatory referral issue. And in January 2017 the IPCC wrote to all forces. It reminded them to review cases from the previous three years to decide if, given the clarified criteria, any cases should be referred to the IPCC.
It also asked for more information on closed cases that were not referred but should have been. HMICFRS says that all forces have now responded.
The Home Office introduced changes to the Police (Complaints and Misconduct) (Amendment) Regulations 2017. Effective from 22 May 2017, the “serious corruption” definition explicitly includes police abuse of position for a sexual purpose or for the purpose of pursuing an improper emotional relationship. The IPCC operational advice note for April 2017 states that
This clarifies the existing position, that such behaviour is an example of serious corruption that must be referred to the IPCC.
In case there is any doubt, the note gives further guidance and examples of the abuse of authority for a sexual purpose. Now there should be no room for confusion.Police professional standards departments must refer this form of serious corruption straight to the IPCC. People like my client “Jean” should not have to wonder if their complaints are going to be brushed under the carpet by the police.
HMICFRS wrote to all forces with their assessment. It says it will re-inspect forces next year and notes that:
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 agree. For every police force, at all levels, there are no more excuses.
It’s fair to say that Theresa May’s speech at the Conservative party conference last week was farcical. Not only did she suffer persistent coughing, but letters on the sign behind her fell off the wall, giving quick-witted viewers the chance to mock her with social media memes.
Perhaps most embarrassing was the prank by Simon Brodkin, also known as Lee Nelson. He presented Mrs May with a fake P45 (HMRC details of employee leaving work). As he handed it over to a confused and embarrassed Mrs May, he said, “Boris told me to give you this.”
After interrupting the Prime Minister, he turned to Foreign Secretary Boris Johnson, who was sitting in the front row with fellow cabinet members. Simon Brodkin gave Mr Johnson a “thumbs up”, saying, “Boris, job done.”
Conference security officers escorted Mr Brodkin from the hall. Chief Superintendent John O’Hare was in charge of security at the event. He confirmed what happened:
Earlier today a man was detained by conference security during the Prime Minister’s speech.
Officers attended and the man was arrested to prevent a breach of the peace and was released a short time later.
No doubt the incident was embarrassing for the Chief Superintendent too. Mr Brodkin “had legitimate accreditation” to the event after all. But there’s another issue: were the police right to arrest him for “a breach of the peace”?
“A breach of the peace” refers to “a breach of the Queen’s peace”, and has its roots in the Justices of the Peace Act (1361). It is not a criminal offence in the sense that no conviction, fine, or imprisonment can directly come from the breach. Instead, magistrates have the power to issue a “bind over” for a limited time to prevent a further breach of the peace.
In R v Howell (1982) the Court of Appeal confirmed the elements of this “common law” concept. It is a situation where the behaviour of the person involved caused the arresting officer (or private citizen such as a conference security staff member) to believe that:
A breach of the peace had or would occur, and that
It related to harm which was actually done, or likely to be done, to a person, or in his/ her presence, their property.
The Court of Appeal went on to explain that officers (or private citizens) have the power to arrest without a warrant where:
A breach of the peace was committed in the presence of the person making the arrest
There was a threat of the breach of the peace being renewed, and
In cases where no breach of the peace had been committed, the person making the arrest reasonably and honestly believed that such a breach would be committed in the immediate future.
Considering the Simon Brodkin Case
Whether there was a breach of the peace in Simon Brodkin’s case depends on how a court would interpret these rules. To make a ruling the court would have to consider the:
Circumstances (objective consideration), and
Arresting officer’s (subjective) view.
Watch the footage of Mr Brodkin’s interaction with the Prime Minister and cabinet members below:
Was there harm, or the imminent threat of harm, to person or property? Was there a threat that a breach of the peace would be renewed or committed in the immediate future? If the police argued that Mr Brodkin had not acted unlawfully but that there was an imminent threat of a breach of the peace, could they say that there was
a sufficiently real and present threat to the peace to justify the extreme step of depriving of his liberty a citizen who is not at the time acting unlawfully.
Some viewers might conclude that Mr Brodkin does not appear to do any acts which cause, or are likely to cause, harm. Others may say that the fact that:
-he got so close to the PM and cabinet, and
-was able to interact with them in such a high-profile setting,
created a reasonable belief for security staff and police that a breach of the peace occurred.
Continued Detention for Breach of the Peace
Police often claim a breach of the peace to break up violent, or potentially violent, situations. Once they are satisfied that the peace has been restored justification for holding those involved no longer exists.
This matters because, even if the breach of the peace arrest was lawful, the police must justify continuing detention on a “minute by minute” basis. Failing to do so can result in compensation awards.
Chief Superintendent O’Hare said that Simon Brodkin was released “a short time later”.
But, as this footage shows, Mr Brodkin was handcuffed, calm and co-operative as the police escorted him out of the venue. They put him in a police van, presumably to go to a police station. Was that necessary given that Mr Brodkin was no longer in the conference hall and could not renew the breach of the peace? And, if they went to a police station, were the police justified in detaining him there, even for “a short time”?
Consequences for Mr Brodkin (a.k.a. Lee Nelson)
I don’t know if Mr Brodkin intends to take action against the police. It looks like he has an arguable case, but I can’t comment further without knowing all the facts.
If he does decide to claim compensation, Mr Brodkin should be aware that police routinely fight compensation claims. It may take a trial at court to determine if his arrest and detention were lawful.
Some employers and regulators like the Solicitors Regulation Authority make you report arrests. And, if he was formally processed at a police station, the police now hold his photographs, fingerprints, and DNA records. They will keep his records on police computers unless Mr Brodkin proves the arrest was unlawful. Even then, as I explained here, in the case of custody photographs, he would have to apply to remove them.
Arrests for a breach of the peace can be life-changing. It matters that the police get them right.
On Wednesday evening I attended a private Dinner for Managing Partners in Liverpool. Liverpool Law Society President, John Ballam, and his fellow officers, hosted the event. Attendees included representatives from solicitors’ firms of all sizes. Bankers, consultants, and others who support the legal profession also came along. As well as an excellent dinner, this is what we got out of it.
Represent clients and supervise my colleagues in their roles.
Be responsible for the growth and management of my firm, and promote it through networking, media, and other ways where possible.
Help and support the legal profession and wider society.
The day-to-day duties that come with practising law, and running my practice, are a full-time job in themselves. So, I find time out-of-hours and at weekends for other things, such as Wednesday’s dinner.
I am not alone.
At my table I talked with Alison Lobb, the former President of Liverpool Law Society. She worked hard during her year as President by attending many events nationwide in an official capacity. I suspect she has some good tips on juggling commitments for Nina Ferris, next year’s President.
Purpose of Meeting
One of the reasons for the dinner was to talk about Liverpool Law Societybroadly. The Society has over 2,200 members in practice, and is one of the largest local Law Societies in England and Wales.
The legal environment is changing quickly. We discussed things like:
What is Liverpool Law Society there for?
What more can it do to help members?
How can it stay relevant?
One area we focused on was training.
Everyone agreed that the legal training offered by Liverpool Law Society is excellent. Its pull means that leading experts in every field come to Liverpool to train members. These include Kerry Underwood, Helen Swaffield, and Dominic Regan.
But recently there has been a big change which affects training providers like Liverpool Law Society. Solicitors have moved from a points-based system of Continuing Professional Development to the new “Competency Standard”. This means that lawyers have more flexibility in how they keep up-to-date with the law and enhance their knowledge. The challenge for training providers is how to keep members coming to courses, conferences etc.. Everyone had comments and ideas.
What Next for Liverpool Law Society?
The dinner ran late into the evening. It was well worth it. The Society’s officers heard plenty of ideas which they will take to the General Committee. I was encouraged by the enthusiasm and creativity expressed by the group. Because the attendees were both business-owners and lawyers everyone had valuable input. The Society was formed 190 years ago. With the help of events like Wednesday’s dinner, it will see many more.
It’s said that practising law is a “calling”. But what does that mean, and how do solicitors fulfil it? Collins Dictionary defines a callingas:
a profession or career which someone is strongly attracted to, especially one which involves helping other people.
This is a useful definition because it shows the relationship between the calling’s:
Attraction to the individual
Benefit to society.
There are 181,982 solicitors on the roll. Nearly 140,000 are practising. Many more have retired or left the profession. If you asked them why they were called to practise law you would get a different answer from everyone. But the common themes above would come up.
As solicitors, we promise to fearlessly represent our clients and uphold the rule of law. Our regulator, the Solicitors Regulation Authority, includes this in the profession’s Principles:
These are mandatory Principles which apply to all.
uphold the rule of law and the proper administration of justice;
act with integrity;
not allow your independence to be compromised;
act in the best interests of each client;
provide a proper standard of service to your clients;
behave in a way that maintains the trust the public places in you and in the provision of legal services;
comply with your legal and regulatory obligations and deal with your regulators and ombudsmen in an open, timely and co-operative manner;
run your business or carry out your role in the business effectively and in accordance with proper governance and sound financial and risk management principles;
run your business or carry out your role in the business in a way that encourages equality of opportunity and respect for diversity; and
protect client money and assets.
The SRA says that the Principles:
embody the key ethical requirements on firms and individuals who are involved in the provision of legal services.
Think about the Principles in the context of a “calling”. Do they meet the two-part relationship I mentioned above? The SRA’s emphasis is on the benefit to society. Clients, and the wider public, come first. The attraction to the individual solicitor isn’t mentioned. So, should we define the legal profession as a “calling”?
Calling to practise law
Working in the law is the only job I ever wanted to do. I joined a law firm straight from school. While there I studied, and passed, my CILEx exams, becoming a chartered legal executive. I continued my training and qualified as a solicitor 10 years ago this week. Nearly seven years ago I set up my firm. We have thrived in a competitive market by fighting hard for our clients to get the justice they deserve.
This explains the continuing attraction of the legal profession to me. Practising law isn’t just a job. It’s personal. Looking back on my career in the law, I take immense pride in the progress my team and I have made. More than anything I love helping our clients win their cases. My colleagues at Donoghue Solicitors share this passion. Helping them do their job and meet their career ambitions is hugely rewarding.
This draw, coupled with the benefit to our clients and my team, makes the law a true calling to me.
How can solicitors fulfil their calling?
As well as the direct benefit to our clients, solicitors like me also help society broadly. We do this in three ways:
1. Upholding the rule of law
I help people who have suffered through no fault of their own. Some, like Paul Smith, were victims of police brutality. Others, like Nigel Lang, experienced life-changing consequences after police failures.
What matters to them, and me, is justice. It’s important that my clients
Hold the police to account
Win compensation for their losses.
Helping innocent victims achieve justice helps society too. In a civil society, upholding the rule of law is essential. Without it there would be anarchy. Succeeding in claims for civil wrongs, especially against powerful and well-resourced defendants such as the police and insurers, shows thatjustice through the legal system is accessible and can be achieved.
Another way we help is when clients agree to publicity. This is their way of keeping the social contract. By publicising their cases, clients hope to
Try to make sure that no one else suffers like they did.
I help with this at no cost to my clients. For example:
James Parry is a solicitor. He won £9,000 compensation from Merseyside Police. He wanted to get the word out that he had been wrongfully arrested. I prepared a press release and contacted his local newspaper, the Liverpool Echo. I also contacted the Law Society Gazette, the trade magazine for solicitors. With my help they reported on the case. The publicity helped restore the reputation of both Mr Parry and the legal profession. It also brought attention to the issue of false arrests at voluntary interviews.
Nigel Lang won £60,000 compensation for false imprisonment and other losses. He had been wrongfully arrested on suspicion of possessing indecent images of children. I arranged for Buzzfeed News to work on a detailed story with him. The publicity from that story led to a BBC tv appearance which raised awareness of the consequences of the police’s failures. Nigel also got an assurance from the police that they had changed their practices to prevent it happening to anyone else.
I am on the front-lines as a practising solicitor. I see the
Devastating impact legal aid cuts have had on people seeking justice. (This is one reason why we represent people under “no win no fee” agreements where appropriate. Most people are not eligible for legal aid in civil compensation claims, including actions against the police.)
Courts service stretched to breaking point, despite innocent claimants paying up to £10,000 in court fees to bring compensation claims.
Impact of lobbying by special interests, especially police federations which have pushed for the roll-out of (potentially deadly) spit hoods. (This is despite criticism from The Hepatitis C Trust, which said that hepatitis C and HIV cannot be transmitted by spitting. To suggest otherwise is “hugely damaging” and “Such falsehoods also cause unnecessary alarm to police staff,” the Trust said.)
My calling as a solicitor means standing up for the “little guy”. This means devoting time to activism. Among other things, I
Use my firm’s blog to raise issues that concern me, my clients, and the public.
On Tuesday Apple showcased its latest smartphone, the iPhone X.
The next day Professor Paul Wiles, the Commissioner for the Retention and Use of Biometric Material (‘the biometrics commissioner’), published his annual report.
On the face of it, these events are unrelated. But are they?
Apple iPhone X Privacy Concerns
Tim Cook, the CEO of Apple, thinks the iPhone X is “the biggest leap forward since the original iPhone”. That’s a bold claim. iPhone revolutionised the market, and Apple has sold an estimated 700 million units.
One reason Apple is so excited about the iPhone X is “Face ID”. Face ID uses a front-facing camera to read the contours of your face. The phone will use that biometric data to recognise you. You can then:
· Unlock your phone without a password.
· Use your phone to buy things.
· Operate third-party applications.
Apple says, “Face ID is the future of how we unlock our smartphones and protect our sensitive information.”
No more remembering passwords or using thumbprints. Handy, but it raises security and privacy issues.
For example, there is a risk that a thief could hold the phone up to your face to unlock it, before taking it away from you. No password; no problem.
Also, your face is different to an easily changed password. It is a permanent, public, and unique feature. A bad actor could abuse the biometric data from the phone. Imagine the life-changing financial and other harm.
The day after Apple’s announcement, Sen. Al Franken of the United States Senate wrote to Apple expressing his concerns. Among other things, he sought answers about how Apple intended to use and share the data, saying,
…Apple itself could use the data to benefit other sectors of its business, sell it to third parties for surveillance purposes, or receive law enforcement requests to access it(s) facial recognition system- eventual uses that may not be contemplated by Apple customers.
And then there’s the bigger question about where this biometric data is stored or shared. Apple says that biometric data will not go to the cloud. It will stay on the phone. But it’s not clear if the company can extract that data remotely or through physical access to the phone.
Also, the company says it does not have plans to upload biometric data. But will it in future? And how will you know? Will you read the updated terms and conditions or just click “accept”? Chances are it’s the latter. Time reported that it would take you 76 work days to read the privacy policies you come across as an internet user in a year. Even if Apple told you it was going to share your biometric data, would you notice?
Biometrics Data Held by Police
These are serious issues. Apple must address them to reassure customers and legislators worldwide. Which brings me to the second piece of news this week: the biometrics commissioner’s latest report. For those of us with an interest in privacy concerns, it makes for grim reading.
As I previously wrote, police use facial recognition technology without proper oversight. The Home Office has largely ignored the issue, which suggests
a wilful disregard of government duties and the democratic process.
One reason for this lack of oversight is that DNA and fingerprint biometrics are treateddifferently to facial images. In his latest report, Paul Wiles noted that the National DNA Database and Fingerprint Strategy Board has statutory powers under the Protection of Freedoms Act (2012). Among other things, it
Monitors the performance of the National DNA database.
Gives guidance to the police on the collection and use of DNA.
Facial images held on the Police National Database fall outside its remit. This is concerning, as Professor Wiles notes in his report,
The use of facial images by the police has gone far beyond using them for custody purposes. In July 2016 there were 19 million facial images on the Police National Database, 16,644,143 of which had been enrolled in the facial image recognition gallery and were (and remain) searchable using facial recognition software.
19 million images is an underestimate. It does not include all those held by the Metropolitan Police Service, the UK’s largest force. The true number is more than 20 million.
And unlike in the National DNA database, facial images are stored in an “anarchic” way by the various police services. Not all forces upload facial biometrics and images to the Police National Database. Durham, Leicestershire, and the Metropolitan Police Service also hold images in their own databases. Databases use different systems and software. Image quality varies. So, according to Her Majesty’s Inspectorate of Constabulary (Scotland),
This means that differing standards are being applied to a common UK database.
As Paul Wiles warns,
This situation could easily produce differential decision making and potentially runs the risk of false intelligence or wrongful allegations.
Facial Recognition Technology Trial
The risk Professor Wiles described was highlighted at this year’s Notting Hill Carnival. As Liberty reported, the Metropolitan Police Service trialled facial recognition technology for the second time at the event, which involved an estimated 2 million carnival-goers. To say the technology has a long way to go would be kind. Silkie Carlo of Liberty found a
worryingly inaccurate and painfully crude facial recognition operation where the rules are devised on the spot.
She described how the Metropolitan Police,
had constructed a “bespoke dataset” for the weekend – more than 500 images of people they were concerned might attend. Some police were seeking to arrest, others they were looking to apprehend if they were banned from attending.
The facial recognition system failed in its task. It couldn’t tell men from women. It produced around 30 false positives. As Ms Carlo explained,
At least five of these they had pursued with interventions, stopping innocent members of the public who had, they discovered, been falsely identified.
There was no concern about this from the project leaders.
A serious issue with facial recognition technology is racial bias. As The Atlantic, an American magazine, explains,
Facial-recognition systems are more likely either to misidentify or fail to identify African Americans than other races, errors that could result in innocent citizens being marked as suspects in crimes. And though this technology is being rolled out by law enforcement across the country, little is being done to explore—or correct—for the bias.
This can be for many reasons, including:
The engineer developing the system designs it to focus on facial features that are more easily seen in some races than others.
The engineer’s own race may influence them when designing the system to distinguish faces.
The software may not be designed as “racist”, but that doesn’t lessen its effect. Despite this, Ms Carlo found that the Metropolitan Police,
had no intention of independently testing for racial bias. They had not asked the vendor if they had tested the algorithm for bias. It wasn’t a concern.
Similarly, they were wilfully ignorant of the demographic data in their Carnival dataset. They didn’t know the ethnicities, ages or gender of those on their watch list – nor did they want to.
In 2012 Lord Justice Richards found that the police’s policy of keeping facial images was unlawful. He said the government should revise its policy “within months”. It took 5 years for the Home Office to come up with a review. But, as Prof Wiles notes, even that was not good enough:
The recent Review proposes leaving all these issues solely in the hands of the police without any independent oversight or assurance to reassure the public, especially those individuals whom the 2012 Court judgment 192 described as “entitled to the presumption of innocence”.
It is now almost five years since the Court held that the police retention of facial images was unlawful, yet we still do not have a clear policy in operation to correct that situation.
And he warned,
Facial images are a powerful new biometric but the acceptance by the public of their use for crime control purposes may depend on the extent to which the governance arrangements provide assurance that their use will be in the public interest and intrusion into individual privacy is controlled and proportionate.
Sen. Al Franken gave Apple a month to answer his questions about its Face ID facial recognition technology. The company has already addressed some of the issues. I expect it will go further and seek to reassure the public and regulators that its new technology is safe and will be managedresponsibly. The Home Office and police should do the same.