How police ignore guidance on outcomes in police misconduct proceedings

Photo of Solicitor Kevin Donoghue, who considers the impact of the new guidance on outcomes in police misconduct proceedings.
Solicitor Kevin Donoghue considers the impact of the new guidance on outcomes in police misconduct proceedings.

By Kevin Donoghue, solicitor

Last week the College of Policing issued a new document: “Guidance on outcomes in police misconduct proceedings”.

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:

  1. authority, respect and courtesy
  2. use of force
  3. discreditable conduct.

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:

  1. assess the seriousness of the misconduct
  2. keep in mind the purpose of imposing sanctions
  3. 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.

Harm

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.”

Aggravating Factors

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.

Mitigating Factors

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:

  • management advice
  • written warning
  • 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.

 

Kevin Donoghue is a solicitor and specialist in police misconduct compensation claims.

 

Police Abuse of Position for a Sexual Purpose – No More Excuses

Photo of Kevin Donoghue, solicitor, who discusses what is being done to deal with police abuse of position for a sexual purpose.
Kevin Donoghue, solicitor, discusses what is being done to deal with police abuse of position for a sexual purpose here.

By Kevin Donoghue, solicitor

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.”

It has also been described as police abuse of authority for sexual gain.

HMICFRS January 2017 Report

In my earlier post I asked if some of these cases were being “brushed under the carpet” by the police. I based this in my experience of dealing with police abuse of authority for sexual gain compensation claims. I also referred to a January 2017 report by Her Majesty’s Inspectorate of Constabulary and Fire & Rescue Services (HMICFRS). Among other things, the inspectorate noted that:

  • 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.”

It reviewed the plans, which were all submitted by 31 May 2017. The results are mixed. HMICFRS’ October 2017 report shows “insufficient progress”. According to HMI Mike Cunningham,

“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:

  1. Definition and strategy
  2. Guidance
  3. Complaints Investigations

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.

It sets policing standards such as those in the Police Code of Ethics. The CoP produced a guide in response to HMICFRS’ report: “Maintaining a professional boundary between police and members of the public”.

As the introductory note states,

“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:

  1. Within three months, all forces should complete a retrospective review of allegations and consider referrals to the IPCC.
  2. 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.

Government Involvement

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.

Action

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.

Kevin Donoghue is a solicitor who helps people bring civil actions against the police for misconduct.

 

Was Simon Brodkin Wrongfully Arrested for a Breach of the Peace?

Photo of Kevin Donoghue, solicitor, who considers if Simon Brodkin was wrongfully arrested for a breach of the peace.
Was Simon Brodkin wrongfully arrested for a breach of the peace? Kevin Donoghue looks at the evidence here.

By Kevin Donoghue, solicitor

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”?

The Law on Breach of the Peace

Some police officers do not understand the law in breach of the peace cases. Here’s a quick refresher.

“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:

  1. A breach of the peace had or would occur, and that
  2. 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:

  1. Circumstances (objective consideration), and
  2. 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.

(Foulkes v Merseyside Police (1998)

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 showsMr 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.

As matters stand, Mr Brodkin’s prank will have lasting consequences for his personal record. Greater Manchester Police said no charges were being brought against him. In the context of a breach of the peace this means that Mr Brodkin was not taken to a magistrates’ court where he could have been bound over to keep the peace.

But he was arrested.

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.

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

 

What Happened at a Private Dinner Hosted by Liverpool Law Society

Photo of Kevin Donoghue, a solicitor and member of Liverpool Law Society.
Kevin Donoghue, solicitor.

By Kevin Donoghue, solicitor

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.

Why I went to the dinner

I wear many hats in my role as Director of Donoghue Solicitors. I am lucky to get to:
  • 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 Society broadly. 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. 

Training Challenge

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.
 
Kevin Donoghue is the Solicitor Director of Donoghue Solicitors. Contact him here.

A Solicitor’s Calling

Photo of Kevin Donoghue, a solicitor who discusses his calling here.
Kevin Donoghue discusses a solicitor’s calling here.

By Kevin Donoghue, solicitor

It’s said that practising law is a “calling”. But what does that mean, and how do solicitors fulfil it? Collins Dictionary defines a calling as:

 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:

  1. Attraction to the individual
  2. 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.

Professional principles

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:

SRA Principles

These are mandatory Principles which apply to all.

You must:

  1. uphold the rule of law and the proper administration of justice;
  2. act with integrity;
  3. not allow your independence to be compromised;
  4. act in the best interests of each client;
  5. provide a proper standard of service to your clients;
  6. behave in a way that maintains the trust the public places in you and in the provision of legal services;
  7. comply with your legal and regulatory obligations and deal with your regulators and ombudsmen in an open, timely and co-operative manner;
  8. 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;
  9. run your business or carry out your role in the business in a way that encourages equality of opportunity and respect for diversity; and
  10. 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
  • Are heard
  • 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 that justice through the legal system is accessible and can be achieved.

2. Publicity

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

  1. Raise awareness
  2. 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.

    3. Activism

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

  1. Use my firm’s blog to raise issues that concern me, my clients, and the public.
  2. Appear on tv and radio to argue for our rights.
  3. Help journalists write about police misconduct and other issues.
  4. Meet and write to politicians to influence legislation.

Appeal

I urge my colleagues in the legal profession to join me in fulfilling our calling in these ways. It’s hard, and takes time and effort. But it’s important and rewarding work.

 

Kevin Donoghue is the Solicitor Director of Donoghue Solicitors. Contact him here.

 

Does Apple Care More About Your Privacy Than the Government?

Solicitor Kevin Donoghue asks if Apple care about privacy more than the government.
Solicitor Kevin Donoghue considers privacy concerns.

By Kevin Donoghue, solicitor

 
Timing is everything.
 
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 treated differently 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
  1. Monitors the performance of the National DNA database.
  2. 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.
 

Racial Bias

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.
 

Public Confidence

 
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.
 

Response Request

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 managed responsibly. The Home Office and police should do the same.
 
Kevin Donoghue is a solicitor who specialises in civil actions against the police.

In Praise of Appraisals

Photo of Kevin Donoghue, solicitor, who discusses staff appraisals in this blog post.
Kevin Donoghue, Director of Donoghue Solicitors, explains the benefits of staff appraisals.

By Kevin Donoghue, Solicitor Director of Donoghue Solicitors

Most of the time I write on my firm’s blog about actions against the police, news and politics, and legal issues.

This is not one of those times. Today I want to talk about:

  • the team we have here at Donoghue Solicitors,
  • how staff appraisals bring out the best in us, and
  • why this matters to our clients.

How We Do Staff Appraisals

I recently concluded staff appraisals. Some managers dread them. They think of appraisals as box-ticking exercises and race through them.

Not me. As the director of my firm I find them essential, from both a management perspective and a personal one. We’re a small and close-knit team, and discuss personal and professional matters daily. But at the formal appraisals we take our discussions to a higher level, and deal with:

  • goals and objectives,
  • achievements, accomplishments, and responsibilities,
  • performance evaluation and areas for development,
  • career development, and
  • anything else we want to discuss.

Before the appraisals I ask all staff to complete a questionnaire and bring it to the meeting. I take this part seriously, dedicating time my team could otherwise spend working. They think about their:

  • past performance,
  • efficiency improvements,
  • responsibilities,
  • aspirations, and
  • anything else that comes to mind.

Armed with this information we have honest and open discussions in the appraisals. They take time, but are well worth it.

Outcome of Staff Appraisals

As expected, the appraisals brought out the best in my team. They told me that they want:

  • more responsibility,
  • challenging work, and
  • involvement in the future planning of the practice.

I was also impressed how they thought about, and wanted to take responsibility for, their own futures. Everyone’s training needs are different but they all want to improve. Some of my team are fortunate to be “millennials”. But they couldn’t be further away from the stereotype of people waiting for others to help them. They don’t want participation awards; they want to participate.

What came across was the genuine satisfaction Donoghue Solicitors’ staff have in their work and workplace. As I explained here in this post about why we do not pay staff bonuses, having a “client first” philosophy benefits everyone involved. My parents taught me to treat others as I want to be treated. We all win, especially our many satisfied clients, when our people have the best  tools and working conditions to do their jobs.

The appraisals energised my team. They are even more determined to showcase their talents and deliver for our clients. I’m lucky and proud to work with such an excellent, dedicated, and talented group of people. I knew this already, but it’s nice to be reminded.

Read more from Donoghue Solicitors’ expert team of lawyers on the blog.

Why Facial Recognition Technology is Another Home Office Failure

Solicitor Kevin Donoghue investigates facial recognition technology used by the police here.
Kevin Donoghue, solicitor, discusses controversial facial recognition technology used by the police.

By Kevin Donoghue, solicitor

Last week I asked why the Home Office was ignoring spit hoods, allowing individual police forces to roll them out on a piecemeal basis. (TL;DR it’s inexcusable, and people are being injured, or worse, as a result.) Another issue the government seems unwilling, or unable, to deal with is Facial Recognition Technology. Unlike spit hoods, it is not potentially deadly. But it matters. Here’s why.

Facial Recognition Technology used at Notting Hill Carnival

This year’s Notting Hill Carnival generated controversy as the Metropolitan Police Service trialled “mobile facial recognition software”. It was the second such trial at the Bank Holiday weekend event.

The police use Facial Recognition Technology to scan the faces of passers-by in public. The software can also use images taken in police station custody suites after arrest.

This has been going on for years. As a result, Paul Wiles, the government’s Biometrics Commissioner, says there are more than 20 million facial images held by the police in various databases. That’s almost 1/3 of the UK’s population, and includes “hundreds of thousands” of innocent people. Chances are, police databases include biometric image data for you and/ or a member of your family.

Why does biometric data matter?

Normally, police get biometric data from suspects during the “booking in” process at a police station custody suite. This includes a DNA sample, fingerprints, and head & shoulder digital photographs. This biometric data is stored on the Police National Database (PND) and other databases for future investigations. Also, and significantly for people who have been unlawfully arrested, it can be part of a police record check.

A record of arrest and biometric data can be devastating to employment prospects, as my client Nigel Lang found out. He lost his job working with vulnerable teenagers after his wrongful arrest, compounding a deeply distressing event. With my help Nigel recovered compensation and, importantly for him, cleared the police’s records of his arrest and biometric data.

Inconsistency

The police treat DNA and fingerprint data differently to custody photographs. Under the Protection of Freedoms Act (2012), DNA and fingerprints are automatically deleted if you are arrested and found to be innocent or released without charge.

Custody photographs are not.  Local police forces keep these images. They can add them to the Police National Database for use by all police forces in the UK. The police can manipulate the images by adding biometric data to them. This data, which is akin to a digital fingerprint, is also uploaded to police databases. Police can cross-reference it with social media images, CCTV, live video etc.. Unless the police agree to delete them, they keep database images for at least 6 years. But in practice the police keep images indefinitely because rules provide for retention until the subject is 100 years old.

Lord Justice Richards found the Metropolitan Police’s policy of keeping facial images to be unlawful. In RMC & Anor, R (on the application of) v Commissioner of Police of the Metropolis & Ors [2012] he said:

I am not satisfied that the existing policy strikes a fair balance between the competing public and private interests and meets the requirements of proportionality. In my judgment, therefore, the retention of the claimants’ photographs in application of the existing policy amounts to an unjustified interference with their right to respect for their private life and is in breach of art.8.

He continued:

It should be clear in the circumstances that a ‘reasonable further period’ for revising the policy is to be measured in months, not years.

The government disagreed.

It took 5 years for the Home Office to come up with a policy paper, Custody Images: review of their image and retention. The Biometrics Commissioner heavily criticised it. Among other issues, he noted a fundamental fallacy which undermines the government’s position:

The review suggests that the retention and use of facial images is ‘generally less intrusive (than DNA or fingerprints) as many people’s faces are on public display all the time’. I disagree with that assertion. In fact for that reason the use of facial images is more intrusive because image capture can be done using cameras in public places and searched against government databases without the subject being aware. Facial images are no longer only used solely for custody purposes and image capture and facial searching capabilities have and are being used by the police in public places.

Further Legal Issues

As well as the court finding against the police and the Biometrics Commissioner’s criticism, forces must deal with other overlapping laws, including the:

  • right to respect for private life under Article 8 of the Human Rights Act. (As mentioned by LJ Richards in his judgment),
  • requirement to avoid discrimination under the Equality Act 2010, and
  • Data Protection Act principles. These include rules that personal data shall be processed “fairly and lawfully” and “shall not be kept for longer than is necessary”.

This ought to have been enough for the police to pause their facial recognition programs and reflect. And yet they continue to harvest facial images and add biometric data to them.

Parliament

It is hard to see why the police are pressing on with facial recognition technology.  It is likely to lead to more legal criticism and costly punishment.

Add to this the fact that the Biometrics Commissioner has criticised both the police and the Home Office for failing to carry out testing, procedures, and policies. He is especially concerned that Parliament has not been involved in the process to “reassure the public that their privacy is being properly protected”.

It can’t be right that:

  • retention of fingerprints and DNA is subject to the law, but
  • facial images and related biometric data are not.

Police Ethics

Cressida Dick, Commissioner for the Metropolitan Police, refused to respond to a letter from civil liberties and race relations groups asking her to pause this “shady enterprise” at the Notting Hill Carnival. She ignored them, which makes me wonder if she is truly committed to Peel’s 9 Principles of Policing, as I asked here.

In particular, I don’t know how police can use facial recognition technology without publicising it, or seeking Parliamentary approval, and still meet Principle 2:

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

“Big Brother” Expansion

Liberty, the human rights organisation, found that the real-time facial recognition at the Carnival was a dismal failure, producing only 1 positive match over 4 days. It frequently provided false positives such as confusing men with women, and did not compensate for racial bias.

Despite this and the lack of public and parliamentary scrutiny, the Home Office plans to invest a further £5 million in the technology. Worryingly, this report says “Such technology will, initially, be used in law enforcement. In time, the scope of the deployment may extend to other public sector organisations, the Home Office said.”

(my emphasis)

Another Home Office Failure

There are clear parallels here with the spit hood situation. The Home Office, through its Centre for Applied Science and Technology (CAST), should have considered spit hoods years ago. It still has not. Letting individual forces decide if, and how, to use these potentially deadly tools is a shameful failure.

The Home Office seems intent on repeating the spit hood mistake. To date, 3 police forces have introduced facial recognition technology without CAST oversight. And to invite tenders from technology companies, spending millions of pounds of taxpayers’ money while avoiding parliamentary scrutiny despite the demands of MPs, suggests a wilful disregard of government duties and the democratic process.

 

Read more from Kevin Donoghue on the Donoghue Solicitors blog.

 

Why is the Government’s CAST Department Ignoring Spit Hoods?

Photo of Kevin Donoghue, who asks why CAST is ignoring spit hoods.
Kevin Donoghue asks why the Government’s CAST department is ignoring spit hoods.

CAUTION: THIS BLOG POST CONTAINS COARSE LANGUAGE

By Kevin Donoghue, solicitor

I was recently interviewed on BBC Radio Leeds about West Yorkshire Police’s roll out of spit hoods to front-line officers.

You can listen to the interview on BBC iPlayer (fast forward through to 2 hours 6 minutes 50 seconds) or hear it below:

Before my interview Nick Ahad, the presenter, played some audio clips from an earlier programme in which callers expressed pro-spit hood (sometimes called “spit guard”) views, such as:

“I agree with them doing this because it’s disgusting to be spitting on anybody, they could be infected.”

And

“Bacteria found in saliva is a proven cause of spreading disease. Society has a duty of protection for our police force and the PC brigade should recognise this fact.”

Spit Hoods Agreement

Perhaps understandably, Nick’s first question to me was:

“Should police officers have to put up with being spat at?”

My response might have surprised Nick’s audience because I agreed with his callers that they should not, saying:

“Clearly not. No right thinking people would think that actually officers should be exposed to this risk of being spat at… it is an assault and individuals should and may face prosecution.”

And later:

“I’m not going to condone anyone spitting. I wouldn’t like to be spat on in my line of work so there’s no issue here in terms of should the officers have a form of protection against this.”

Role of the Centre for Applied Science and Technology (CAST)

Having dealt with that I moved on to something I suspect would worry Mr Ahad and his audience: the government’s failure to get involved.

As I have previously pointed out, in a Freedom of Information Act response the Government’s Centre for Applied Science and Technology (CAST) confirmed that it has not:

  • formally evaluated spit hoods
  • identified suitable models or types suitable for use
  • produced any risk, safety, ethical, medical or other relevant use-based assessments for UK police forces.

So what? Well, this is CAST’s job. The government body is part of the Home Office and describes itself as:

“…made up of scientists and engineers who develop technological solutions to fight crime. CAST works with academia and industry.”

CAST’s website shows that it has produced guidance for police forces on many “technological solutions to fight crime”, including:

and many more.

Spit Hood Roll-Out

Given CAST’s wide remit and the national publicity about spit hoods, it beggars belief that these potentially deadly tools have yet to be considered. People can die or suffer life-changing injuries when placed in spit hoods, so it seems the organisation has its priorities wrong in working on non-lethal equipment first.

Without CAST’s official guidance individual police forces looking to use spit hoods must:

  • make their own risk and use assessments,
  • find suitable models, and
  • formulate training standards.

This leads to inconsistencies in spit hood use across police forces. For example:

  1. Only about half of all UK police forces use spit hoods. Those forces introduced them at various times and authorised use in different situations. As one Police Federation representative pointed out in an earlier interview, spit hoods have been used by Sussex Police since around 2010 and are issued to front-line officers. West Yorkshire Police has used them in custody suites since 2013, and announced this week that front-line officers will get them soon. The Metropolitan Police Service, the country’s biggest force, is presently trialling what it calls “spit guards” in custody suites only. This means that suspects can be spit-hooded by front-line British Transport Police officers at London’s train stations, but not by front-line Metropolitan Police officers on the streets outside.
  2. Police forces use different types of spit hoods. West Yorkshire and Surrey Police spit hoods cover the head. Leicestershire Police’s covers only the mouth, leaving the nose free.
  3. Use and training guidance varies. Surrey Police policy specifically stresses that officers must be aware of their obligations under Article 3 of the Human Rights Act, which says that “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” British Transport Police guidance does not.

 “Spit Guard” Abuse

This situation worries me as a solicitor who specialises in civil actions against the police because I help people who have suffered due to police misconduct, which can include the use of spit hoods. My client Paul Smith (details used with permission) suffered horribly when Sussex Police officers unlawfully arrested and sprayed him with PAVA (“pepper”) spray. During the arrest the police restrained him face down. He reflexively tried to clear his airways and was not spitting the foul-tasting and painful spray at them, but they spit hooded him anyway. This was a painful and traumatic episode, as the transcripts from police officer body worn video footage proved:

Paul Smith           I am on fucking fire

PC S                   Stay still, I sprayed you for a reason, because you were resisting arrest

Paul Smith          I need water

PC S                   We don’t have water

Paul Smith          I need water. I need water man

PC S                   We don’t have any water to give you

PC C                   You will get water when you go in your cell

Paul Smith          I am choking

PC C                   You’re not choking

Paul Smith          Seriously take it [the spit hood] off

PC C                   You can’t have it off your face

Paul Smith         Take it off, serious. Seriously, oh god xxxxxx

Spit Hood Consequences

Paul was one of the lucky ones, despite his horrendous ordeal. He survived, unlike Jonathan Pluck of Peterborough who died in police custody after being spit hooded. I helped Paul recover £25,000 compensation, but this was a life-changing experience. He “will never trust them [the police] again”.

As I explained to the BBC Radio Leeds listeners,

“…someone is going to suffer irreversible brain damage, asphyxiation, and potentially a fatality. I don’t want to have that conversation with a family because these [spit hoods] have not been properly thought through.”

This is not just an issue for members of the public. It also affects the police officers who use spit hoods. If I was a police officer I would be very reticent about using a spit hood without a full assessment and guidance from CAST first. Without this the police don’t know if the equipment is suitable and if their training is adequate. The risk of death and serious injury to suspects is real. No officer wants that or potential criminal, civil, and misconduct proceedings in which their use of a spit hood would be scrutinised in great detail.

Police Federation Campaigns

Despite this risk to their members, Police Federation representatives continue to campaign for spit hoods. Hailing this week’s announcement, West Yorkshire Police Federation Chairman Nick Smart said:

“This is about protecting the protectors as they go about their duties and keep the public safe.”

As I mentioned earlier, I have no issue with that. But he went further, saying:

“Anyone who decries this move or speaks out against it is simply putting the human rights of criminals who deliberately spit at police officers above the rights of police officers.”

I strongly disagree with this characterisation on two counts:

  1. Police officers and members of the public have equal rights to protection under the law. Legitimately raising concerns about spit hoods is not putting one side ahead of the other. This is not “Team Police vs Team Suspect”, and
  2. As Paul Smith’s case shows, putting a spit hood on someone does not make them a “criminal”. Suspects are innocent until proven guilty. Nick Smart’s inflammatory language, calling people “criminals”, is inaccurate and unhelpful.

Call for Action

Police Federations are akin to unions for police officers, from the rank-and-file up to Chief Inspectors. They are politically influential both within their own forces and on a national level, as Nick Smart pointed out when he said:

“The introduction of Spit Guards is something we as a local Federation have been lobbying both politicians and senior officers to review and agree to the use of for some time.”

I don’t know why CAST has ignored spit hoods so far. But given the concerns I, and many others, have with them, I urge Police Federations to use their political power to make CAST evaluate these tools immediately. Until then, Federations should pause their campaigns to roll-out spit hoods more widely. Police Federation members, who are also members of the public and could be wrongly spit-hooded themselves, should demand it.

 

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

 

Why We All Benefit When People Bring Claims Against the Police

Photo of Kevin Donoghue, a solicitor who explains why we all benefit when people bring claims against the police.
Here Kevin Donoghue, solicitor, explains why we all benefit when people bring claims against the police.

By Kevin Donoghue, Solicitor Director of Donoghue Solicitors

I recently wrote about why people bring claims against the police. Compensation is less important for many victims of police misconduct, especially when compared to:

  • restoring their reputations
  • correcting inaccurate police records/ destruction of DNA etc. which could impact on future job prospects/ parental access rights etc.
  • holding the police accountable for their actions
  • seeing that lessons are learned so that others don’t have to suffer similarly.

Effects When People Bring Claims Against the Police

So, bringing claims against the police helps claimants in many ways. But there’s more to it than that. It is not enough that victims seek and recover remedies and compensation for police misconduct, and that the police take steps to prevent a recurrence. For society to have confidence in the Rule of Law we must see that justice is done. By publicly bringing claims against the police, claimants:

  • fulfil a valuable civic duty by showing society that our constitutional rights can, and should, be upheld
  • remind police who abuse their positions of power that no one is above the law, especially those tasked with upholding it
  • contribute to changes to existing police policies, and to the development of new practices, which can help reduce police misconduct in future
  • help develop new law, which further protects our fundamental human rights.

In some cases, this is done by victims of police misconduct publicising their cases after they finish. For example:

1. Nigel Lang was wrongfully arrested on suspicion of possessing indecent images of children. He lost his job working with vulnerable young people, and suffered serious psychological effects.

With my help Nigel Lang received £60,000 compensation and made sure the police corrected his record.  Hertfordshire Police, the force which arranged for Nigel Lang’s arrest after incorrectly providing his IP address, apologised and confirmed it changed its procedures to prevent a repeat of his ordeal. All this has helped him start to rebuild his life.

TV appearance

But even though it was hard, Nigel recognised the importance of telling the public about what had happened for the reasons above. I arranged for him to speak with journalists from Buzzfeed News. Later he appeared on the BBC’s Victoria Derbyshire programme before a nationwide television audience. By doing so he raised public awareness of the devastating effects of what the police pithily described as an “administrative error”.

 

2. Paul Smith was late for work and frustrated at the delay in being issued a parking ticket. When things escalated he was wrongfully arrested, assaulted, “pepper” sprayed, and put in a spit hood in full view of the public in his home town of Hastings. Paul’s painful and humiliating experience was made worse because he felt that his family, friends, and neighbours thought he was somehow responsible. The £25,000 compensation he received helped prove his innocence to them and restore his reputation.

Spit Hood Dangers

Like Nigel Lang, Paul wanted the public to know what happened and to understand the horrendous experience of being spit-hooded. He kindly agreed to me using his details when discussing his case in radio interviews and online. I referred to Paul’s case to explain what happens when the police spray victims with PAVA “pepper spray” before applying spit hoods. Among other things:

  • the spray causes a reflexive clearing of the airways which can (wrongly) be interpreted as spitting at an officer, and
  • hooding people who have been sprayed increases the risk of suffocation, causing serious injury or, in the worst cases, death.

Bringing attention to these risks ought to raise public and police awareness about these potentially deadly tools.

Public Vindication in Civil Courts

In other cases, bringing claims against the police also extends to publicising misconduct in courtrooms where the public, journalists, and others can see justice being done. For example:

1. I represented James Parry, a prominent solicitor based in Merseyside. He was wrongfully arrested after agreeing to attend a local police station for a voluntary interview with a police officer investigating an alleged theft. The arrest smeared Mr Parry’s professional reputation as it called into question his honesty. It was worse because he is a criminal solicitor who often represents clients at Merseyside’s police stations.

The police refused to accept wrongdoing so we took James’s case to trial in Liverpool County Court, where he won £9,000 compensation for his false imprisonment claim. Pubic vindication by a judge in court was of vital importance to my client as a solicitor who appears in Liverpool’s courts daily. His story was also reported in the Liverpool Echo and the Law Society Gazette, the trade magazine for the legal profession, helping further public knowledge and (hopefully) change the police’s procedures with respect to voluntary interviews.

Police Confusion

Merseyside Police issued a statement in response to the press reports saying:

‘The force carefully considered this civil action and it was thoroughly examined by our legal department who also sought external legal advice. As a result, it was decided that it was appropriate to defend the claim and test the facts in court.’

(my emphasis)

This is an apparent misunderstanding of the law because it wrongly suggests that the burden of proof is on the claimant in false imprisonment claims. I wrote a blog post to clear up any confusion on the part of the police. I hope Merseyside Police read it and apply the well-established principles to save others from Mr Parry’s experience.

2. Another of my clients recently won her case at Cardiff County Court after being wrongfully convicted of assaulting a police officer. My client, who worked part-time as an SIA-accredited steward, was driving home when the police pulled her over. Things got out of hand and the officers assaulted and arrested her. To her horror, the officers falsely claimed that my client had assaulted one of them in the execution of his duty. The police prosecuted, and convicted, her at the Magistrates’ Court on the basis of the officers’ false evidence. She appealed to the Crown Court, where the court found no case to answer and quashed her conviction.

Civil Court Judgment

But that did not go far enough to restore her reputation, clear her record, and hold the police to account for their appalling misconduct. I took her case to trial where the Judge made a public finding against the police. He said,

“In my judgment the arrest and prosecution of the Claimant was the result of a face-saving exercise by the police officers involved, who had allowed a trivial event to become an incident in which an innocent member of the public had been assaulted and injured by them”.

This finding was essential to my client personally and in her work as she could now correct her police record. The court also awarded my client more than £70,000 compensation, a large amount which reflected the serious nature of the police misconduct. The judgment was also important for the public, as it showed that the police can be held to account.

Justice Done

Understandably, some people can be in two minds about whether to bring claims against the police. Proceedings can be stressful, hard-fought, and take a long time. Challenging the misconduct of “our brave boys in blue” may be unpalatable, especially for people who have never been in trouble with the police before. But we should all recognise the bravery of victims of police abuse, because, as Lord Chief Justice Hewart said in R v Sussex Justices ex p McCarthy (1924):

“[It] is of fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done.”

Kevin Donoghue is a solicitor who helps people bring civil actions against the police.