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

By Daniel Fitzsimmons, Director at Donoghue Solicitors

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

Kevin is shortlisted alongside four other lawyers:

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

What are the Liverpool Law Society Legal Awards?

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

Awards will be given in eight categories, including:

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

What is Liverpool Law Society?

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

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

Fierce competition for Legal Awards

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

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

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

As the independent judging panel said when reviewing the nominations:

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

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

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

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

• internally, as a person and as the solicitor director of Donoghue Solicitors, and
• externally, in his public work and interactions with clients, other lawyers, the courts, etc.

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

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

How Kevin Supports His Clients

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

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

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

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

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

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

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

Sharing Expertise Publicly

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

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

Handling Risk

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

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

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

Helping the Next Generation of Lawyers

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

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

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

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

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

By Kevin Donoghue, solicitor

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

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

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

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

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

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

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

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

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

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

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

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

Social media reaction to the HMICFRS report

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

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

They went on:

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

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

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

Defining police sexual misconduct abuse

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

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

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

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

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

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

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

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

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

How police officers abuse the imbalance of power

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

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

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

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

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

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

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

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

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

It is important to understand that in:

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

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

1.     Criminal offence: misconduct in public office

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

The offence is committed when:

• a public officer acting as such;

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

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

• without reasonable excuse or justification.

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

2.     Civil law tort: misfeasance in public office

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

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

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

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

3.     Police disciplinary and misconduct proceedings

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

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

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

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

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

Why volenti does not apply (and is misunderstood)

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

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

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

Consequently, volenti does not apply.

Public understanding of police abuse

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

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

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

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

By Kevin Donoghue, solicitor

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

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

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

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

How the police dealt with protesters

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

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

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

Statement regarding viral video from Parliament Square #Westminster today. pic.twitter.com/xbi4HJRNXh

— Metropolitan Police Events (@MetPoliceEvents) September 12, 2022

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

What is the law around breach of the peace?

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

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

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

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

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

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

As Lord Diplock said:

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

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

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

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

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

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

How the police and courts deal with protesters

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

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

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

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

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

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

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

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

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

Section 5 of the Public Order Act states that:

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

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

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

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

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

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

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

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

(c) that his conduct was reasonable.

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

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

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

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

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

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

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

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

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

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

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

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

(b)that—

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

(ii)that impact may be significant.

And

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

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

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

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

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

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

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

(My emphasis in bold.)

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

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

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

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

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

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

Chilling Effects of the PCSC

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

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

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

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

Democracy on Display

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

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

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

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

By Kevin Donoghue, solicitor

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

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

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

What happened?

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

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

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

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

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

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

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

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

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

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

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

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

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

Sadly not.

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

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

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

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

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

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

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

Disappointing Failure by the Police

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

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

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

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

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

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

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

Financial Imperative to Apologise

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

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

As a National Police Chiefs Council spokesperson said:

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

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

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

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

Regulator and Political Interest in How the Police Conduct Claims

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

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

Apology Benefits

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

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

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

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

By Kevin Donoghue, solicitor

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

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

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

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

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

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

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

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

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

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

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

What happened to Child Q?

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

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

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

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

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

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

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

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

The CCo offered hard data to support that opinion:

Ethnicity and disproportionality: 

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

• In every year between 2018-2020, over half of boys searched were Black. In 2018, 3 in 4 boys searched were Black (75%).

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

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

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

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

Gender:

• The overwhelming majority of strip searches were carried out on boys (over 95%) with under 5% of searches carried out on girls.

• Boys aged 16-17 were the most likely to be searched, with 73% of searches carried out on boys in this age group. 

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

Year:

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

4. Child Q’s case was not an outlier. In fact, the CCo found, the Met could not confirm if an Appropriate Adult was present in 23% of strip searches of 10-17 year olds between 2018-2020.

5. And, as in Child Q’s case, in more than half (53%) of cases, no further action was taken after the strip search.  As the CCo says:

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

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

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

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

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

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

Monitoring and supervising the use of stop and search powers

General

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

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

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

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

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

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

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

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

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

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

Long-Standing Abuse of Search Powers

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

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

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

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

What the CCo Wants to Happen

Dame Rachel said in the foreword to her report: 

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

And

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Daniel Fitzsimmons is a Fellow of the Chartered Institute of Legal Executives. He recently became a director at his firm, Donoghue Solicitors.

By Daniel Fitzsimmons, Chartered Legal Executive Director

As regular readers of the blog will know, I am a Chartered Legal Executive (CLE) and recently took up the role of director at Donoghue Solicitors Limited.

My colleague and fellow director, Kevin Donoghue, announced my appointment here, saying:

What this appointment means

Daniel’s appointment as a director means he is now, to adopt a term which applies to law firms which do not have limited status, a “partner”. As such, Mr Fitzsimmons is a recognised point-of-contact by the Solicitors Regulation Authority, our insurers, suppliers, clients, and others.

His role also means that those who work for, and deal with, Donoghue Solicitors can be confident that Daniel takes his responsibilities seriously.

My appointment comes at an interesting time within the legal profession. There is a live debate about the role of CLEs in law firms, for two reasons:

1. an acrimonious dispute between the Chartered Institute of Legal Executives (CILEX) and its regulator, Cilex Regulation Ltd. (CRL)
2. a Law Society Gazette discussion on LinkedIn about how CLEs are viewed by recruiters and solicitors.

(My apologies for the acronyms. That’s the last of them, I promise!)

What are Chartered Legal Executives?

CILEX, the professional association of CLEs, says on its About page:

For fifty years, we have been offered a unique route to a legal career and becoming a qualified lawyer without a requirement to having a law degree, although law graduates and graduates with non-law degrees can also qualify as a lawyer through the CILEX route. Entry is accessible to those holding a variety of qualification levels.

(My emphasis is in bold throughout this blog post.)

CLEs like me are fully qualified lawyers, even if most of us did not follow a more traditional route to qualification.

My story is typical, in that I did not study law at university like many solicitors. Instead, I worked full-time in a law firm, studied during evenings and weekends, and passed many exams to earn my qualifications.

As I described when I qualified in 2016, qualification as a CLE is long, hard, and better than the traditional solicitor route. This is because it involves extensive on-the-job training as well as academic study:

How Do You Become a Chartered Legal Executive?

To qualify as a Fellow of CILEx and earn the title “Chartered Legal Executive” I had to meet the qualification criteria:

1. Pass numerous exams in law and practice. Because I worked full-time, I attended classes and studied over evenings and weekends for my qualifications. It takes years to complete the required stages.

2. Be in “qualifying employment” for at least 3 years, 1 of which must have been as a Graduate member of CILEx, completed after finishing the exams. Qualifying employment is “work wholly of a legal nature undertaken for at least 20 hours each week, preferably under the supervision of an authorised person (as defined in the Legal Services Act 2007)”. I met that target easily as I have continuously worked in law firms for 10 years, and been at Donoghue Solicitors for 6, working closely with our Solicitor Director Kevin Donoghue.

3. Meet “work-based learning” outcomes. I had to provide a portfolio of evidence proving that I met 27 different learning outcomes, which included showing how I apply the law and practice, communication skills, professional conduct, client care, and many other outcomes. I gave CILEx real-life (redacted) examples of my work to prove that I met the criteria. My portfolio was well over 100 pages long, and was very time-consuming to prepare.

CILEX and CRL Dispute

CILEX represents Chartered Legal Executives. CRL regulates them. CILEX recently emailed its members saying,

At its meeting on Tuesday 19 July 2022, having considered the Case for Change and with the assurance of Mr Kenny’s independent review, the CILEX Board has made the decision to initiate formal talks with the Solicitors Regulation Authority (SRA) to explore the feasibility of transferring the regulation of CILEX members to the SRA.

In response, CRL explained its role and position when it said:

The regulatory regime established by the Legal Services Act 2007 implemented arrangements in which regulatory and representative functions are strictly separated by a system of formal delegation. This is the system that has operated across the legal professions in England and Wales for more than a decade. Each professional body in the legal sector, which was previously responsible for both regulation and representation of its members, was required to delegate its regulatory functions. The title of “approved regulator” did no more than recognise the system adopted. The “residual functions” as approved regulator are very few and strictly prescribed. Approved regulators are prohibited from interfering with regulatory functions.

And

We would like to reassure you that there can be no suggestion that CRL is in any way failing to discharge its responsibilities. In December 2021 we were assessed by the Legal Services Board as one of the best performing regulators of legal services. CRL continues to discharge its regulatory functions in complete compliance with the requirements of the Legal Services Act.

As a result,

In CRL’s view, CILEX’s actions are not compliant with the requirements of the Legal Services Act 2007 and the relevant delegated legislation.

It is likely that this saga will run and run because both sides fundamentally disagree on CILEx’s power to seek regulation elsewhere. There is a lot at stake: CRL will become obsolete if CILEx gets its way.

What this means for the legal profession

At the heart of this public spat is a problem with the way CLEs are viewed both within, and outside, the profession.

As CILEX said:

We need regulation to help our members build their reputation and presence in the legal services marketplace. We believe that in exploring the transfer of independent regulation of CILEX members from CRL to the SRA, there is the potential to address these issues by making it clearer than ever to both the public and employers, the equality of status that exists between CILEX Lawyers and Solicitors.

This will give greater confidence that, regardless of who does the work, the outcomes will always be of the same high quality across the legal sector and therefore provide the best opportunity to meet the demands of the future modern legal services market and enable CILEX members to become a key part of that future.

As a recent poll on LinkedIn pointed out, how lawyers choose to qualify should not be an issue, because, as Greg Whittaker said:

There really should not be an argument as to “whats better” out of the 2 and Legal Executives should not be made to feel their qualifications are inferior to their Solicitor Colleagues.

If you are a good lawyer you are a good lawyer- That should surely be the metric.

And yet, Jodie Cook, a Chartered Legal Executive, described her own experience with a law firm recruiter as this:

This comment stood out to me:

I asked what she meant. Surely I hadn’t understood? No. The firm apparently wouldn’t even take applications from Cilex. Solicitors only. I told her I couldn’t believe it. She was apologetic and I knew she was only trying to get the right candidate – it wasn’t her fault. She offered to speak to them to see if they were prepared to consider allowing me to even apply.

What is at the heart of this? As ever, some of the issues are rooted in prejudice, which is borne of ignorance.

Members of the public might not know about the hard work and effort that goes in to qualifying as a CLE. The long nights. The weekends. The endless exams.

Fellow lawyers have no excuse.

As Ruby Hammer, Deputy Head of Law and School of Social Sciences Lead for Business Engagement at The University of Manchester said in the LinkedIn thread:

30 years experience in HE and also short period working with CILEX has shown me the L6 CILEX exams are, if anything, more rigorous and detailed than any HE/GDL exam in an equivalent subject. This, coupled with the work-based learning legal executives attain, make them an asset and they should not be treated differently!

Even the Solicitors Regulation Authority, which is the equivalent of CRL for solicitors, agrees. When I sought to become an  SRA-approved manager- Director of my firm, my application was accepted quickly and without fuss.

Positive Impact of CLE qualification

My story shows that being a CLE has not held me back. On the contrary, I have been able to fulfil my career ambitions, and am now a director of the firm in which I qualified.

While I note that there might still be a perception barrier (as Jodie Cook’s experience shows) a lot depends on the firm and the solicitors in charge of it.

I am proud that my firm takes a positive view of CLEs. As my colleague and fellow director Kevin Donoghue said in response to the LinkedIn thread poll question, “Are Legal Executives on a level footing with Solicitors in terms of how they are viewed and rewarded at your current firm?”:

Kevin Donoghue

Chartered Legal Executives certainly are at my firm. We passionately believe in fostering alternative routes to legal qualification, with a view to helping our lawyers achieve their long-term ambitions. An example of this is that my colleague Daniel Fitzsimmons, Chartered Legal Executive, recently accepted my invitation to become a Director at Donoghue Solicitors.

Kevin’s view is borne out of his own experience. He, too, qualified as a CLE, before deciding to continue his studies at the College of Law to qualify as a solicitor. Mr Donoghue did not have to take that extra step but chose to do so to fulfil his ambition of owning a solicitors firm.

Since then, Kevin has helped me, and many other lawyers, to qualify as CLEs. His commitment to the CLE qualification, and to helping people progress in their legal careers, was founded in one of the firm’s five founding principles:

4. We recruit “the brightest and best” with a strong commitment to the highest legal, professional, and ethical standards. Kevin fosters a culture of academic excellence and helps his staff work towards qualifications which benefit the firm’s clients.

Read the full list here.

As he said when my colleague Jack Hudson qualified,

On a personal note, I am immensely proud of Jack, Daniel, and Kemmi. All three qualified as Legal Executives under my supervision. Developing the next generation of lawyers is a big financial and time commitment for me and my firm. But it is a task we undertake willingly. Seeing my colleagues fulfil their ambitions is hugely satisfying. And it means that our clients get representation from best-in-class lawyers. Well done Jack!

Sound Business Reason to Recruit Chartered Legal Executives

Here’s a secret others might not want you to know. Kevin did not ask me to become a director for the good of his health. He did it because, as he said about me:

Importantly, his appointment helps gives continuity and stability to the firm. This matters, as it comes at a time when many legal practices are dealing with government funding cuts, mergers and acquisitions, and other issues.

We intend to continue in practice as an independent law firm dedicated to fighting for claimants’ rights for many years to come. Daniel’s appointment helps with that ambition.

There are over 21,000 CILEx lawyers, other legal practitioners and paralegals. More qualify every year. CLEs are a large, and important, group within the legal services industry.

Recruiting “the brightest and best” means seeking out talent from all walks of life. Celebrating, and encouraging, alternative routes to qualification is vital if law firms are to survive and thrive.

Law firms, other lawyers, and recruiters are missing out if they stay stuck in the past.

Daniel Fitzsimmons is proud to be a Chartered Legal Executive and director of Donoghue Solicitors. Contact him here.