A Police Claims Solicitor’s Christmas Wish

Photo of Police Claims Solicitor Kevin Donoghue.

Police Claims Solicitor Kevin Donoghue.

By Kevin Donoghue, Police Claims Solicitor and Director of Donoghue Solicitors

Can you believe it’s nearly the end of 2014?

As a police claims solicitor, this year I used the firm’s blog to highlight issues I came across in daily law practice.

As my blog posts show, there are lots of areas of concern. My Christmas wish is for 2015 to see things improve. Here’s why, and how this can happen.

Police Claims Solicitor Blog Posts

In January I suggested the police and their solicitors make three New Year’s resolutions:

  • Think of the police force’s money as your own
  • Treat people as you would want to be treated
  • Respect your opponent.

Unfortunately, this message was not heard. During the course of the year I repeatedly dealt with negative police tactics. They abused the court system to try to avoid responsibility for police misconduct.

When I defeated the police’s solicitors at court my clients benefitted as their claims could progress. But frustratingly the police solicitors’ actions caused delay, which helps no one, and the courts ordered the police forces involved to pay wasted legal costs. (In reality, you and me as taxpayers picked up these unnecessary extra bills.)

As I said nearly a year ago, this is plain wrong. The police’s solicitors should not misuse the legal process, and taxpayers should not have to foot the bill.

But seven months later I was compelled to remind the police’s own solicitors how ethics rules work. I urged them to remember their legal and moral obligations for the proper administration of justice. In 2015 I hope they will.

Breach of the Peace Solicitor Help

Turning to the “bobby on the beat” I asked if the police know the law in breach of the peace cases.

This piece came about because I received many requests for help from people who had been wrongfully arrested for “a breach of the peace”.  I explained the law in clear, simple language that a police officer on the beat could understand. I hoped that the police’s highly-qualified and expensive solicitors would read it too, to avoid wasting time and money fighting claims. Still the calls to represent people who had been unlawfully arrested for breach of the peace kept coming.

Police Misconduct Cases

I also sought a change in the police’s body camera policy as I disagreed with the proposal that the police’s cameras did not have to be filming at all times when they were on duty. The guidance that police officers could selectively use body cameras seems wrong to me. The police could abuse it to avoid filming incidents where they misbehave.

As I pointed out, it’s not just innocent people involved in episodes of police misconduct who benefit from the proper use of body cameras. The police get valuable protection from complaints and claims too. And it’s good for society. The widespread civil unrest caused by the fatal shooting of Michael Brown in Ferguson, USA, could be avoided here with body camera evidence removing doubt.

Fortunately, as many people have smartphones with video cameras, bystanders filming police misconduct became more common in 2014. In July I reviewed a police assault shown on Facebook and suggested that the injured man seek legal advice. I hope he has.

Taser assaults were in the news this year, which is not surprising when you consider that the police used Tasers more than 10,000 times in 2013 alone.

I reviewed the evidence and wrote about why the police’s policy with these potentially deadly weapons is wrong. I urged the police to agree ethical standards across all forces. Unsurprisingly, we’re still waiting.

Police Claims Funding Threat

As a police claims solicitor I worry that recent changes in legal funding could potentially have far-reaching consequences for our civil liberties. In November I asked the government to extend “qualified one way costs shifting” to cover all actions against the police, including those where the victim did not get injured. I’m hopeful that they will do this in the New Year, but as always with the current government when it comes to citizens’ rights, I won’t hold my breath.

Christmas Wish

On many occasions I asked for something that we have the right to expect: for the government, police, and their legal representatives to act responsibly and ethically.

If I have one Christmas wish this year it’s that they think about this seriously. These people are public servants, after all. There’s a clue in their name about whose interests they are meant to serve.

Thanks

In 2013 there were 129,584 full-time equivalent police officers in England and Wales according to the most recent government statistics. I fight against police misconduct daily but know that they’re not all bad. The majority are doing a good job in difficult circumstances. I am sure we all appreciate the hard-working and decent police officers who have carried out great work throughout the year.

On a more personal note I take this opportunity to thank all of our clients, contacts, staff, family, and friends for your support this year.

Thanks to you we’ve had a busy, but fulfilling, year at Donoghue Solicitors.

We‘ve been in great demand for our services in actions against the police, accident claims, and professional negligence matters.

We’ve won lots of claims for our clients, recovering hundreds of thousands of pounds of well-deserved compensation for people who have suffered through no fault of their own.

And along the way we’ve raised money for charity and helped in our local community.

Donoghue Solicitors would not exist without you, and I am deeply grateful to all who make this a successful firm. Helping people who have suffered through no fault of their own is my passion. I am fortunate to do that every day.

From everyone here at Donoghue Solicitors, I wish you a merry Christmas and a very happy 2015.

Kevin

P.S. If, like me, you have young children, you might enjoy this interactive Santa tracker from google. It’s fun, free, and will give the kids something to do while you’re wrapping the presents!

 

If you want help from a police claims solicitor, contact Kevin Donoghue on 0151 933 1474 or fill out the simple form on the website.

 

 

 

Without changes to QOCS, could Ferguson happen here?

It’s said that when America sneezes the rest of the world catches a cold.

If the government doesn’t take urgent action to change its policy on Qualified One Way Costs Shifting (“QOCS”), we might need to get an industrial-sized box of Kleenex® ready.

Kevin Donoghue, solicitor, explains why.

Photo of Kevin Donoghue, Solicitor, who explains why QOCS rules must change.

Kevin Donoghue, Solicitor explains why QOCS rules must change.

In August this year Darren Wilson, a white police officer, killed Michael Brown, an unarmed black man.

Despite taking place 4,000 miles away, the story is relevant here because there are similarities between our legal systems.

The killing in Ferguson, a suburb of St. Louis, Missouri, USA, sparked months of riots and protests across America about perceived racism in the police.

On Monday, 24 November, a grand jury convened by the state of Missouri decided not to indict Officer Wilson on charges of murder, manslaughter, or armed criminal action. He will not be prosecuted in the state’s criminal courts with these charges.

Michael Brown’s parents urged calm when the decision was announced, but their wait for justice continues.

So what can they do now?

Compensation Claim

The grand jury slammed the door on state criminal proceedings but a federal (government) investigation continues.

Even if that fails to bring Officer Wilson to justice, the family may still have the right to launch a civil claim against Officer Wilson (and St. Louis police) for wrongful death.

Taking actions against the police in civil court is an important part of the justice system. It steps in where criminal law fails.

It ensures that if Officer Wilson does not face jail time he, and the police force which employs him, could be made to pay compensation to Mr. Brown’s family.

Although compensation can’t bring their son back, a civil court judgment against the police might help the family achieve a sense of justice and closure.

Photo of a Ferguson protest.

People have been protesting about Ferguson since Michael Brown’s shooting.

Civil Claim Against the Police

Using the civil courts to seek justice mirrors my experience.

As a solicitor who specialises in civil actions against the police, I represent people who have been failed by the police, courts, and the criminal justice system.

For them, seeking justice is often more important than receiving compensation. An apology and/or court judgment can help ease the suffering they have endured and put the police’s misconduct in the past.

For example, my clients A.A. and H.A. initially received only a cursory apology from the Metropolitan Police after armed officers wrongly conducted a dawn raid at their home.

During the raid police assaulted both men. Afterwards they were afraid to be in their own home.  (You can read the full case study here.)

Feeling angry, upset, and mistreated; they contacted me as I am a solicitor who specialises in claims against the police.

I sued the Metropolitan Police for:

  • assault,
  • negligence,
  • trespass,
  • false imprisonment, and
  • breach of the Human Rights Act (right to respect for private and family life).

The Metropolitan Police denied liability, saying they had acted lawfully. And they said that there was no evidence my clients had suffered injuries even though they needed medical attention after the police assault.

This only increased my clients’ sense of injustice.

I prepared the case for trial but, late on, the Metropolitan Police entered into sensible negotiations. I eventually settled both my clients’ claims for £18,000 plus full legal costs and, importantly for them, obtained a full apology from the police.

Both clients were happy that justice had been done and that the police accepted their mistake.

Civil Liberties Threat

Without an independent solicitor like me fighting in their corner, A.A. and H.A. would not have received justice or closure.

Why? Because solicitors who represent victims of police abuse are willing to take on the police when their clients have been abandoned by the Crown Prosecution Service or Independent Police Complaints Commission.

It matters to everyone, including the police themselves, that police misconduct is challenged.

We all benefit when brave citizens take on the State because:

  • police procedures and training are reviewed and improved;
  • individual police officers are held to account and “bad apples” disciplined or sacked;
  • government policy can be influenced; and
  • society sees that justice is done and the Rule of Law upheld.

This last point is crucial. The Ferguson, Missouri, demonstrations show what can happen when the public feel aggrieved.

With all these benefits, you would think that the government would be keen to support solicitors and their clients who bring actions against the police.

Not so.

In itself, civil law is complicated and actions against the police cases are hard to win. But recent government policy towards legal funding suggests that it is determined to make it harder to bring a civil claim.

By doing so, the government is eroding access to justice and, with it, our civil liberties.

Unfair QOCS System

I have previously written about the disastrous impact of the Legal Aid, Sentencing, and Punishment of Offenders Act (2012) (“LASPO”) which came into effect on 1 April 2013.

LASPO introduced Qualified One Way Costs Shifting (“QOCS”) costs protection in personal injury claims.

Even though actions against the police are civil liberties cases at heart, they have been lumped in with whiplash, tripping accidents, and other personal injury claims. This is because personal injury is often part of these cases. For example, there could be a police assault claim for injuries sustained when applying handcuffs during arrest.

The QOCS system has made actions against the police with personal injury claims harder to bring because:

1. QOCS could leave successful claimants short-changed

Pre-LASPO, if the successful claimant won, they recovered their full legal costs and insurance from the responsible party. If they lost, after the event insurance covered all costs except their own legal fees, which were usually covered by no win no fee agreements.

This gave the innocent victim of police misconduct peace of mind that they would not suffer financially as well as physically and emotionally.

Post- LASPO, successful claimants now have to pay their own lawyer’s “success fees” and after the event insurance (if obtained) from their damages. This could discourage claimants as it might leave them with less compensation than they would have received before April 2013.

2. Uncertainty about the extent of QOCS protection

The main advantage of QOCS is that, unless exceptional circumstances apply, a personal injury claimant who loses their case will not have to pay their opponent’s legal costs. And if they have a no win no fee agreement with their solicitor, they don’t have to pay their own legal fees either. As a result, they are left only with their expenses (“disbursements”) to pay. This is useful, but not as good as the old system which provided them with full costs protection either way.

The problem with QOCS in police claims is that it is unclear if it applies to the whole claim or just the personal injury part, and it does not apply at all to cases where no personal injury is claimed, such as trespass cases.

I ran H.A. and A.A.’s cases under the old system so they received 100% of their damages and legal costs.

Under the new QOCS system, because they suffered a police assault, my clients H.A. and A.A. might have received full protection for their entire claim, but I could not guarantee it. They may only have received costs protection for the police assault. In that situation, if they lost, the court might have ordered my clients to pay the Metropolitan Police’s legal costs relating to the rest of their claims for trespass, breach of Human Rights, and everything else.

Unfortunately, the rules are badly drafted and no court has made a decision which solicitors can rely on to advise their clients. This uncertainty about QOCS puts some people off making a claim.

3. Police take advantage of QOCS confusion

Finally, a consequence of the QOCS changes is that, in my experience, the police are more willing to fight cases to trial. They exploit the confusion and now see claimants as a soft touch.

QOCS Consequences for Civil Liberties

The government introduced LASPO to curb the so-called “compensation culture”. It has been proven that doesn’t exist and, even if it did, should our civil liberties be eroded by discouraging people from claiming compensation?

Parliament needs to recognise the consequences of LASPO and act now to extend QOCS costs protection to all actions against the police, even where personal injury is not claimed, so that people can feel confident when standing up for our rights.

Protecting the Rule of Law from abuse by the police must come first. Otherwise, what’s happening in the USA might happen here.

 

Kevin Donoghue is a solicitor who specialises in civil actions against the police. Contact him on 0151 933 1474 or through the Donoghue Solicitors website.

Image credit: Tony Alter on flickr.

 

 

 

 

 

Is the SARAH Bill an abuse of Parliament’s Powers?

Photo of Kevin Donoghue, solicitor, who considers the SARAH Bill.

Kevin Donoghue, solicitor, considers the SARAH Bill.

By Kevin Donoghue, solicitor

On the eve of Guy Fawkes Night it was fitting that the government showed that it was capable of blowing up respect for Parliament’s legislative powers.

On 4th November, the Social Action, Responsibility and Heroism Bill (also known as the “SARAH Bill”) received its second reading in the House of Lords.

The government wants the SARAH Bill to “make provision as to matters to which a court must have regard in determining a claim in negligence or breach of statutory duty”.

It is remarkably short, at just over 300 words. If you had a homework assignment to draft a bill and came up with it you’d get an incomplete.

During the debate Lord Faulks, the Conservative Minister responsible for promoting the Bill in the House of Lords, explained that the purpose of the Bill is to encourage volunteering and public spirit. If passed, it would give reassurance to people who are sued that the courts will recognise the context in which they acted.

He said the Bill was broadly drafted to apply to a range of situations and “bodies such as small businesses, volunteering organisations, religious groups and social clubs, as well as to individuals.”

Lord Lloyd of Berwick said that the Bill was unnecessary. He questioned if its true purpose was to send a message to the Courts instead of making new law. If so, that is not a proper use of Parliament’s legislative powers and it should not allow the Bill to become an Act of Parliament.

Was he right? Let’s look at the clauses in turn:

1. When this Act applies

This Act applies when a court, in considering a claim that a person was negligent or in breach of statutory duty, is determining the steps that the person was required to take to meet a standard of care.

The Bill deals with the consequences of compensation claims, which usually include personal injuries. They are based in either negligence, breach of statutory duty, or both.

Negligence is proven when a claimant can show that:

  • a defendant owed him/ her a duty;
  • the defendant breached that duty;
  • the claimant suffered loss; and
  • the loss was reasonably foreseeable by the defendant.

Statutory duties, where Parliament enacts laws to extend common law, include strict liability cases.

Before 2013 strict liability laws protected people in accidents at work because defendants could automatically be found liable without claimants having to prove negligence.

But in 2013 Parliament passed the Enterprise and Regulatory Reform Act, removing strict liability from most work accident cases. Now claimants must meet the (harder to prove) negligence standard of care.

As a result of both common and statutory law, the courts are already required to consider the steps taken to meet the required standard of care, so there’s nothing new in Clause 1 of the Bill.

2. Social action

The court must have regard to whether the alleged negligence or breach of statutory duty occurred when the person was acting for the benefit of society or any of its members.

This clause is also already well covered in both statutory and common law.

In 2003 Lord Hoffman said that the courts must consider the “social value of the activity which gives rise to the risk” in the House of Lords judgment of Tomlinson v Congleton Borough Council.

Despite this guidance binding on all courts which deal with compensation claims, in 2006 the government brought in the Compensation Act. This Act merely confirmed the common law approach stated by Lord Hoffman when it said:

Part 1 Standard of care

1 Deterrent effect of potential liability

A court considering a claim in negligence or breach of statutory duty may, in determining whether the defendant should have taken particular steps to meet a standard of care (whether by taking precautions against a risk or otherwise), have regard to whether a requirement to take those steps might—

(a)prevent a desirable activity from being undertaken at all, to a particular extent or in a particular way, or

(b)discourage persons from undertaking functions in connection with a desirable activity.

In the debate Lord Faulks tried to justify Clause 2 of the SARAH Bill. He said that replacing the “may” consider clause in the Compensation Act with the “must” consider clause in the SARAH Bill is a significant change.

It isn’t.

Lord Hoffman’s ruling established the current law. Neither the Compensation Act nor the SARAH Bill adds anything.

Moving on, “acting for the benefit of society or any of its members” is the kind of woolly phrase which only a non-lawyer like Chris Grayling, our current Lord Chancellor, could approve.

Can’t it be argued that we all act for society’s benefit, even if for purely selfish reasons?

Compare factory owners and Cub Scout leaders, both of whom benefit if this Bill becomes an Act.

A factory owner could just as easily take advantage of this phrase when making employees work without proper protective gear. Employers like factory owners keep people in work, pay taxes, support their communities etc. and benefit society that way. Cub Scout leaders help children grow as people. Who is to say which benefits society more?

If left in, defendants (or more accurately, their insurers) will abuse this unnecessary clause.

3 Responsibility

The court must have regard to whether the person, in carrying out the activity in the course of which the alleged negligence or breach of statutory duty occurred, demonstrated a generally responsible approach towards protecting the safety or other interests of others.

Here’s another Grayling phrase: “generally responsible approach”. What’s that? On what legal standard is it based? It’s an entirely new phrase with no legal precedent.

If introduced it will lead to expensive litigation and wasted court time while the courts, claimants, and their lawyers, try to make sense of it.

Right now all volunteering groups, businesses (small or otherwise), clubs etc. must put standards and procedures in place which have developed over years of common law and government made statutes.

To give them a new defence based on made-up language would undermine all that.

4 Heroism

The court must have regard to whether the alleged negligence or breach of statutory duty occurred when the person was acting heroically by intervening in an emergency to assist an individual in danger and without regard to the person’s own safety or other interests.

And there’s more: the court has to consider if “the person was acting heroically”.

What’s that? Not all heroic acts are dramatic.

In 1955 Rosa Parks refused to move to another seat on a bus and helped end racial inequality in America.  Nelson Mandela spent 27 years in jail and contributed to the end of Apartheid.

Both would undoubtedly be considered heroes, but, applying the wording of this clause, were they “acting heroically”? Arguably not; as there was no “emergency” or “danger”.

And this clause is potentially life-threatening for our emergency services, as it requires the court to apply the “heroism” clause only when it decides that someone was acting “without regard to the person’s own safety or other interests”.

It worries the fire service as they think  it will encourage people to go into burning buildings to try to save someone, only to need rescuing themselves.

Guidance from St John Ambulance and others stresses that you should make sure you never put yourself at risk. This clause undermines them all.

Lord Lloyd was right. There is nothing new in this ill-considered and unnecessary Bill.

 “Silly” SARAH Bill

Unsurprisingly, both Houses of Parliament had a field day with the SARAH Bill.

Even Conservatives criticised it, calling it “silly” and “utter tosh”.

So why bother?

As always, it comes down to money.

The Conservatives have been in hock to the insurance companies for years. The Guardian found that they had contributed £4.9 million to the Tories between 2005-2011.

Worse still, Lord Chancellor Chris Grayling received £71,000 from the founder of Direct Line Insurance to run his office when he was a lowly shadow home secretary.

This modest investment in our leaders is a bargain when you consider the breakneck pace of reforms to the legal sector, and in particular compensation claims:

  1. the Legal Aid, Sentencing and Punishment of Offenders Act 2012 greatly affected the rights of innocent accident victims by removing their right to recover fees and expenses from the person responsible. Bar Council Chairman Nicholas Lavender QC claimed in a speech on Saturday 8 November that this Act has denied access to justice for 400,000 people in the last year alone.
  2. the Enterprise and Regulatory Reform Act 2103 removed strict liability from health and safety regulations, making it harder for people to claim compensation after accidents at work; and now
  3. the SARAH Bill 2014, which, Lord Faulks freely admits, is designed to help “small businesses” and others (i.e. their insurers) fight claims. As he said in the House of Lords debate about Clause 3:

“It cannot be fair that such people feel pressured to settle speculative and dubious claims. So as well as giving that reassurance, we hope that this provision will give them greater confidence in resisting such claims and indeed—this is important—will help to deter such claims being brought at all.”

Solution

As I have shown, the SARAH Bill is a pointless waste of Parliament’s time. Rather than help heroes and volunteers, its true purpose is to:

  • help the Conservatives cosy up to their insurance company paymasters;
  • increase insurance company profits; and
  • deny the rights of innocent accident victims.

Unfortunately, Lord Lloyd withdrew his amendment to have the Bill killed at the second reading stage. It will now be considered on 18 November at a House of Lords Committee.

My suggestion: use it as kindling for a bonfire.

Only then will the government and their insurance company backers know that their cynical abuse of Parliament’s legislative powers failed.

 

If you have had an accident at work and want to claim compensation, call me on 0151 933 1474 or get in touch through my firm’s website.

 

 Thursday 13 November 2014 Update:

Labour MP Paul Flynn recently filed an Early Day Motion for a debate to “drop this lamentable headline-seeking example of crude populism.”

And in Parliament on Tuesday, Justice minister Shailesh Vara confirmed that:

The Bill will send a powerful message to the public that if they are acting selflessly in an emergency to help somebody in danger and something goes wrong, the courts will always consider the context of their actions if they are sued in negligence or for breach of statutory duty.” (my emphasis)

Lord Lloyd was right. The government blatantly state that the purpose of the Bill is to send a message, not to legislate. That is an improper use of Parliament’s powers. The government should withdraw this Bill immediately.

 

 

 

 

 

 

 

 

Our part in Halfords’ Christmas Advert

We have a star in our midst!

Our bookkeeper Vicky Kean’s 7-year-old daughter, Gabriella, is starring in Halfords’ Christmas t.v. advertising campaign.

The advert shows Christmas morning in the 70s/ 80s.

Gabriella plays a young girl watching t.v. before being drawn to the window where boys on brand new BMX bikes ride by.

It’s nostalgic and fun. Watch it here:

A nationwide t.v. audience will see Gabriella’s advert during ITV’s “The X Factor” on Saturday 1st November.

Proud mum Vicky says that Gabriella loves acting and that this shoot was especially fun as “she got to eat loads of cake!”

All of us here at Donoghue Solicitors are very proud of her and look forward to encouraging Gabriella’s acting career in the future.

Can Jogger Sue for Breach of the Peace Arrest?

Photo of Kevin Donoghue, a solicitor who helps people sue for breach of the peace arrest.

Kevin Donoghue, a solicitor who helps people sue for breach of the peace arrest.

By Kevin Donoghue, Solicitor.

Yesterday the BBC reported that Dean Farley, 28, accidentally ran into Prime Minister David Cameron while jogging in Leeds.

Tom Heyden of the BBC later interviewed me about the story as I specialise in civil actions against the police, including helping people to sue after unlawful arrests for breach of the peace.

Mr. Cameron’s security team:

  • arrested Dean “to prevent a further breach of the peace”;
  • detained him for an hour; then
  • “de-arrested” him after satisfying themselves that Dean was innocent.

Mr. Farley explained how the police manhandled, handcuffed, and held him in a police van while they checked his story. He said that he was jogging to the gym for a workout with a personal trainer.

As well as suffering physical injuries, Dean explained that he was “quite shook up” by the “harrowing” incident.

As Mr. Farley was held and detained  by the police he might consider asking a solicitor for help to sue for breach of the peace arrest.

But can he?

There are three things to consider:

  1. Was the arresting officer right to charge Dean with a breach of the peace?
  2. Was the arrest and detention lawful?
  3. Can the police justify Dean’s detention for an hour?

The Law in Cases Where People Sue for Breach of the Peace Arrest

The police charged Dean with a breach of the peace. Was that the right offence?

I have previously blogged about if the police know the law in breach of the peace cases as I worry that, all too often, they get it wrong.

To rely on a charge of breach of the peace, the arresting officer must have had:

  • reasonable grounds to believe that Dean had done (or threatened to do) an act which;
  • either actually harms a person or his/ her property; or
  • is likely to cause such harm.

The BBC report says that Dean Farley did not make contact with David Cameron. Even so, in that moment, it is understandable that an officer would think that there was a threat of harm to the Prime Minister or one of his protection team.

So the charge of breach of the peace appears correct.

False Imprisonment

To claim for false imprisonment, Dean Farley would need to show that the police detained him without lawful authority.

The legal definition, from Clerk and Lindsell on Torts, describes detention as:

“Complete deprivation of liberty for any time, however short, without lawful cause”.

Dean says the police arrested and detained him for an hour.

The burden of proof then shifts to the police.

To prevent Mr. Farley being able to sue for breach of the peace arrest the police must show that they had lawful grounds for the arrest.

Grounds for Arrest

Sections 24 and 28 of the Police and Criminal Evidence Act (1984) (amended by the Serious Organised Crime and Police Act (2005)) describe the following conditions for a lawful arrest:

  1. the arresting officer honestly suspected the arrested person was involved in the commission of a criminal offence;
  2. the arresting officer held that suspicion on reasonable grounds;
  3. the arresting officers’ reasons for effecting an arrest amount to a reasonable belief that the arrest was necessary, usually to allow the prompt & effective investigation of the offence or of the conduct of the person in question;
  4. the officer informed the arrested person of the fact & grounds of arrest as soon as reasonably practicable; and
  5. the arresting officer’s exercise of his or her discretion to arrest was reasonable in public law terms because PACE confers a discretion, not a duty, to arrest.

Applying these tests to Dean Farley’s case, the arresting officer would say that he had an honest suspicion that Dean had harmed, or threatened to harm, David Cameron or a member of his protection team, so committing a breach of the peace.

Watching the video footage Dean’s conduct could certainly be viewed as potentially threatening, although we now know that he had no such intent to harm. So objectively, we can agree that the officer’s suspicion was reasonable.

The arresting officer would also say that he had to arrest Dean to investigate the alleged offence.

Again, viewing the footage, it seems reasonable to take the police’s side.

The arresting officer promptly told Dean that he had been arrested “to prevent a further breach of the peace” so the fourth condition was satisfied.

Finally, there does not seem to be a public law reason to challenge the arrest.

Justified Detention for Breach of the Peace

It appears that the initial arrest was lawful so, on that basis, Dean cannot sue for breach of the peace arrest.

But  the police have to defend the continuing detention on a “minute by minute” basis. As the then Master of the Rolls, Lord Donaldson, said in the judgment of Mercer v Chief Constable of Lancashire (1991):

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

So Dean could still sue for a breach of the peace arrest if he can show that the police held him longer than necessary.

He told the BBC that the police kept him for an hour while they checked his story. Mr. Farley was then released without charge.

It is unlikely that a court would criticise the police for holding Dean for this time. It seems reasonable to conduct the enquiries he described such as checking his story with his boss, the gym etc. given the high-profile nature of the incident.

There may be other evidence which comes to light later, but on the information from the BBC report and video alone, it seems that Dean’s arrest and detention for breach of the peace were justified.

Unlike some of my other clients, I would not advise him to sue for breach of the peace arrest.

 

If you want help to sue for breach of the peace arrest contact me on 0151 933 1474 or complete the online form on my firm’s website.

 

 

 

 

 

 

 

 

 

How Co-operating Helps You Win Your Compensation Claim

 

Photo of Daniel Fitzsimmons who specialises in compensation claims.

Daniel Fitzsimmons specialises in compensation claims.

By Daniel Fitzsimmons

My daughter, Olivia, loves watching old episodes of “Sesame Street” on YouTube.

I grew up with the show and, as a parent, appreciate the way the writers combined education and entertainment. Recently we watched a song about co-operation. Enjoy it here.

As the song says, “sometimes there is a job so big, if we want to get it done, we’ve got to bring those birds together and all work as one, and that’s co-operation…”.

In compensation claims I couldn’t agree more.

After the merits of the case, co-operation between legal team and client is the most important factor in winning your compensation claim.

Without it, you might lose your claim completely due to missing court deadlines or failing to get crucial evidence.

Even if you co-operate half-heartedly your claim will take longer, be harder to win, and might be worth less.

For me, winning a compensation claim is as much about being a project manager as it is about legal skills.

I need to assemble and manage a team including experts, barristers, witnesses, my colleagues, and, most importantly, my client.

Only when we all work together can we achieve a successful result.

Compensation Claim Management

An example of co-operation in practice is my client Alan N’s case. Alan received £3,600 for his compensation claim. His claim might have failed if we hadn’t worked together so well.

Alan, a newly qualified pharmacist, was riding his bike to work when he was hit by a van. He suffered various injuries, including cuts and bruises to his elbows and right knee and a puncture wound to his left thigh.

As well as his personal injuries he lost earnings and damaged his bike.

Alan instructed me to pursue his bike accident compensation claim against the van driver. Alan told me that he was on the major road when the van pulled out of a side road and hit him.

I agreed to take Alan’s claim on a “no win no fee” basis. I found the van driver’s insurers with help from the DVLA and sent them details of Alan’s compensation claim.

The insurers failed to admit liability so, at this point, we had a choice to make.

Fight on, all the way to trial if necessary, or abandon the compensation claim.

I explained to Alan that, despite what people tell you, there are no guarantees of success with compensation claims. If you go to trial the other side’s lawyer is equally confident. If they weren’t they would settle before court.

It was a risk he was willing to take.

Compensation Claim Preparation

Alan was sure he was in the right and I agreed, so I put a team together to issue proceedings.

To prepare Alan’s case I asked him to be a willing member of the team. Alan understood this and played his part. He:

  • responded promptly to my phone calls, emails, and letters;
  • provided information quickly so that I could preserve crucial evidence to prove liability;
  • attended a medical appointment on time and gave clear evidence for the doctor’s report;
  • gave a site inspector information to prepare a report to help show that his version of events was correct; and
  • met with me at his home and our offices so I could progress his compensation claim. This involved preparing schedules of losses, court pleadings, witness statements, and other items essential for court proceedings.

The experts I instructed helped by keeping appointments and providing usable reports on time.

And my colleagues at Donoghue Solicitors ensured that I was able to reply to every phone call, letter, and email, and provided me with advice and support when I took the important decision to back Alan’s case.

Court Proceedings for Compensation

After I issued court proceedings the driver’s insurers filed a defence.

They said the accident was not their driver’s fault. They claimed Alan was cycling on the wrong side of the road and he crashed into the van, not the other way round.

As his claim proceeded towards trial we spoke and met regularly to review:

  • the defence;
  • evidence both sides intended to produce at court; and
  • witness statements.

Alan agreed to free up his diary and booked time off work to give evidence at court.

Fortunately, less than two months before trial I was able to use the evidence we had prepared to convince the van driver’s insurers to admit blame. I then negotiated settlement of Alan’s compensation claim.

When I entered into negotiations it was important that I had his co-operation to keep the pressure on. We were in constant touch by email and phone.

By working together to settle his claim Alan received more than double the amount he would have recovered if we took our chances at court.

Compensation Claim Team

By readily co-operating Alan received excellent compensation and ensured that the claim process was a good experience.

It was also a powerful motivator for the rest of the team.

The group I assembled worked well with Alan’s help. We were all committed to the goal of helping him recover the most compensation possible.

This joint effort and expert help ensured that I could present Alan’s case in the best possible way, and at the right time, so that his prospects of success and compensation were greatly increased.

Without this level of communication and co-operation Alan’s case would not have progressed as quickly or as well, if at all.

That’s well worth remembering when dealing with your own compensation claim.

 

For help with your compensation claim, contact me on 0151 933 1474 or through the Donoghue Solicitors website. I am an accredited “Litigator” practitioner member in the Association of Personal Injury Lawyers.

 

 

Will Paul Gambaccini sue the police?

Photo of Kevin Donoghue, a solicitor who helps people sue the police.

Kevin Donoghue, a solicitor who helps people sue the police.

By Kevin Donoghue, solicitor

On Friday 10 October the Metropolitan Police told Paul Gambaccini they will not be proceeding in their investigations over historical sex allegations.

The police arrested Mr. Gambaccini on Tuesday 29th October 2013 and released him under police bail. They did not charge him with any offences.

The broadcaster described his “12 months of horror and trauma” and has supported Home Office plans to limit the time suspects can be bailed without charge.

Speaking to the BBC, Human Rights barrister Geoffrey Robertson QC criticised the Police for the “unnecessary and unlawful” arrests that have been made during the Metropolitan Police’s “Operation Yewtree”.

If Mr. Robertson is right, Paul Gambaccini might consider taking a civil action against the police for:

  • false imprisonment;
  • psychological trauma;
  • damage to reputation and; if provable
  • lost income.

But will he sue the police?

Paying to Sue the Police

On 1 April 2013 the Legal Aid, Sentencing, and Punishment of Offenders Act (2012) (“LASPO”) came into force.

The coalition government pushed the Act through apparently to save money and please their insurance company donors.

In the 18 months since it has been in force it has had a profound effect on funding all compensation claims, including cases where people sue the police.

This is why.

Every working day I receive many enquiries from people asking me to help them sue the police.

As a solicitor and Officer of the Court I take my duties seriously. My priority is to act in the best interests of my clients. So I think about how they are going to pay for their cases before going any further.

Contrary to popular perception, claiming compensation isn’t free. The claimant is responsible for their own legal costs. Only if they win can they claim some, or all, of these back from their opponent.

Because of this costs risk, dealing with funding is as important as considering the merits of the claim.

If Mr. Gambaccini came to me I would tell him that there are four potential methods of funding:

  1. Legal Aid
  2. “Before the event” insurance or union backing
  3. Conditional Fee Agreement (also known as a “no win no fee” agreement) with/without “after the event” Insurance
  4. Private Client.

I’m guessing that Mr. Gambaccini won’t be eligible for legal aid. (He probably does not receive qualifying state benefits, or is on a low-income with little or no assets.)

He may have before the event insurance (so-called because it is insurance in place before the claimable incident occurs) or union-backing. In my experience these rarely cover actions against the police. This is because police claims are complicated, high-risk, and often of relatively low value (many are worth less than £5000).

He might ask if I would take the case under a conditional fee agreement. If so, I would only get paid if he won his claim. For taking the risk of not being paid, and delaying payment even if successful, my firm would receive a “success fee” uplift on top of our base costs.

Before LASPO no win no fee agreements allowed me to represent clients with a guarantee that they would recover 100% of their compensation if they won; and walk away scot-free if they lost.

This was because, if my clients won, their losing opponent paid the success fee and, if obtained, the cost of an after the event insurance policy. With no fees to pay, my clients received every penny of their hard-fought damages.

(After the event (claimable incident) insurance provided valuable protection as it would pay for all of my clients’ expenses (called “disbursements”) and the other side’s legal costs if they lost their claims.)

By using pre- LASPO no win no fee agreements my clients did not have to pay legal fees out of their own pockets as private clients. This was a better deal than option 4, which would be the last resort for most.

 “Compensation Culture”

The conditional fee agreement system worked well before LASPO, but the government was determined to stamp out the perceived “compensation culture”, even though study after study showed that it does not exist. In 2010 the government commissioned Lord Young, the Conservative Party former cabinet member, to prepare a report which you can read here. He said:

“The problem of the compensation culture prevalent in society today is, however, one of perception rather than reality.”

He wasn’t the only one who thought that the compensation culture was bogus. Lord Dyson MR, the Master of the Rolls and second most senior judge in England and Wales, said in a 2013 lecture:

‘I doubt very much whether we are likely to see – in the medium term at least – any reduction in news stories expressing concern about our compensation culture. It is something of a mystery to me why the media find the compensation culture such a fascinating subject.’

LASPO Impact

Despite knowing that the compensation culture was a myth, the government’s determination to force through changes led to LASPO.

LASPO removed the innocent victim’s right to recover success fees and after the event insurance when using a no win no fee agreement.  Now winning claimants must pay for those things themselves.

The new rule affects people who bring no win no fee claims of any kind, including civil actions against the police.

If they lose they can avoid paying their own solicitor’s fees with a no win no fee agreement, but must still pay their disbursements and the other side’s costs, as LASPO has forced after the event insurers away from actions against the police.

And it doesn’t just affect people who have no win no fee agreements with their solicitors. Private clients also have to worry about paying for their own disbursements, and more importantly the police’s legal fees, if they lose.

Often cases that go to trial can rack up legal fees of over £50,000.

That’s enough to make even apparently well-off people like Paul Gambaccini think again before deciding to sue the police.

Qualified One Way Costs Shifting Uncertainty

A possible solution to this problem is for the government to extend Qualified One Way Costs Shifting (“QOCS”) to include cases where people sue the police.

QOCS came in at the same time as LASPO and applies to personal injury cases only.

It allows the accident victim to claim compensation knowing that, unless certain exceptions apply, they will not have to pay their opponent’s costs if they lose. They will only have to pay their own legal fees (unless they have a no win no fee agreement) and their disbursements (unless covered by after the event insurance).

(In accident claims after the event insurance is still available because claims are generally easier to predict and the market is much bigger than actions against the police.)

Actions against the police are different to accident claims as, in many cases where people sue the police, they do not suffer injuries, so QOCS would not apply.

But, in theory, it does apply to people who sue the police where they are also claiming personal injury, such as handcuffing injuries to the wrists, police assault injuries, and diagnosed psychological trauma.

Conveniently for the police, over a year and a half on from when LASPO came into force, we still don’t know if QOCS covers the personal injury element alone, or the entire claim.

This uncertainty means that there is a costs risk for the claimant if they suffered an injury, but more so if there is no injury claim.

Rights Under Attack

If Paul Gambaccini is a victim of police abuse and wants to sue the police his decision to go ahead may come down to funding. If he finds a solicitor willing to take his case on a no win no fee basis he may have protection for his own costs, but will still be exposed to significant costs risk if he loses.

He will then have to decide if suing the police is worth the risk.

Don’t misunderstand me. I take on new claims against the police every month.  In the right cases, I am comfortable acting under a no win no fee agreement, knowing that there is a risk I will not get paid. My practice is thriving because police abuse is routine and, provided my clients are comfortable with sharing the risks, worth fighting against.

I am dedicated to helping people sue the police because these cases impact us all. When brave victims of police abuse stand up to the State and seek justice, we are protected. By holding the police to account they improve their conduct, training, and policies. We all benefit, including the police themselves.

But without cases being brought by these determined people and their lawyers, the police are free to abuse the law.

 

If you want help to sue the police contact me on 0151 933 1474 or through my firm’s website.

 

Why won’t a solicitor take my no win no fee claim?

Photo of Kevin Donoghue, Solicitor, explains why a solicitor won't take a no win no fee claim.

Kevin Donoghue, Solicitor, explains why a solicitor won’t take a no win no fee claim.

By Kevin Donoghue, solicitor

You’ve decided to claim compensation, researched which solicitors’ firm to use, and got in touch with a lawyer.

But the solicitor you contact says they won’t represent you, even using a conditional fee agreement (also known as ‘no win no fee’) agreement.

If you’re in this position and find yourself asking “why won’t a solicitor take my no win no fee claim?” let me give some insight.

Funding Options, including No Win No Fee Funding

Funding for legal cases is something which all solicitors are under a legal duty to consider with their clients at the outset.

As you may know if you’ve read our page about how much it costs to make a police compensation claim, the page on our site about no win no fee accident claims, or the professional negligence no win no fee section of our website, we try to be clear and straightforward in our explanations of the various funding options available. These include:

  • legal aid;
  • paying for your case privately;
  • using before the event or union funding; and lastly
  • no win no fee agreements.

That way you know what to expect when you speak to us, or any other solicitor, about your claim.

Talking about how your case will be funded is important because starting a compensation claim (especially on a no win no fee basis) is a big decision, not least because of costs.

Prospects of Success and Costs

Unfortunately, there is never one simple explanation to answer the question “why won’t a solicitor take my no win no fee claim?”, but some common reasons are:

1.      The solicitor who reviewed your case is not confident it will succeed.

This is the most important reason, as solicitors only take cases on if they are confident that there is a reasonable prospect of winning.

It applies regardless of the method of funding used, even with private clients who pay their own legal fees, legal aid, and union- backed cases.

For a solicitor to:

they must have absolute confidence in the client, their case, witnesses, evidence, and many other things.

Solicitors want happy clients who win. Getting the maximum compensation for clients to help them get their lives back on track is what gets lawyers like me out of bed in the morning.

Losing benefits no one, especially the client, who will have wasted their time and effort in claiming compensation.

So the reasons for declining to act, especially on a no win no fee basis, are not purely selfish.

Of course, solicitors want to be paid for the work they do. (Law firms are not charities; they are businesses. In business, who doesn’t want to earn money?)

And losing a no win no fee case means that the solicitor would not get paid their own costs, which can run into the tens of thousands of pounds and put strain on the firm’s finances.

But there’s more to it than that.

Solicitors are under a duty to act in the best interests of their clients, who are called “claimants” in civil compensation claims.

And changes in the rules which came into force on 1 April 2013 mean that taking a legal case is now a more risky proposition for claimants.

Why?

Because the Legal Aid, Sentencing and Punishment of Offenders Act (2012) abolished the right of innocent claimants to recover “success fees” and after the event insurance from the losing defendant, or more usually, the defendant’s insurance company.

Success fees uplift the claimant’s solicitors’ fees to compensate for:

  • the risk of taking the case and losing; and
  • delaying payment.

After the Event insurance provides protection for the claimant’s own expenses, such as court and experts’ fees (called “disbursements”), barrister’s fees if necessary, and the other side’s costs.

Being able to recover success fees and after the event insurance from the losing defendant (or their insurers) meant that, before April 2013, the winning claimant would usually receive 100% of their compensation.

(This is why people commonly think of “no win no fee” as free legal representation, when in fact the term means that if you win, there is a fee. It’s just that, before 1 April 2013, that success fee was paid by the losing defendant and not the successful claimant.)

The system in place before April 2013 ensured that the winning claimant’s solicitor could get paid a fair rate (legal costs plus a success fee).

And the after the event insurance protection meant that, if the claimant lost their case, they would still be able to walk away “scot-free” as their solicitor would honour the no win no fee agreement and waive his or her fees, and the insurance would pay for the rest of the claimant’s expenses and the defendant’s costs.

But, since 1 April 2013, if the claimant loses they are only protected for their own solicitor’s fees (under the no win no fee agreement) unless “qualified one way costs shifting” applies. Now they have to pay for their own disbursements, barrister’s fees (unless also working under a “no win no fee” agreement), and the defendant’s costs out of their own pockets unless they can get after the event insurance and agree to pay for it out of their damages (if they win).

Since 2013 the market for after the event insurance has shrunk considerably, so that it is very difficult to get in some areas of law, such as actions against the police.

Without it, taking a case to court and losing could cost the innocent claimant thousands of pounds. Defendants and their insurers don’t instruct cheap lawyers and experts, court fees for running a case to trial alone can exceed £2000, and if you need an expert or two to prove your claim (most cases do), then you are responsible for their costs too. (Experts can’t work on a “no win no fee” basis because their duty to give an impartial opinion means they can’t be influenced to find in either side’s favour by the risk of not getting paid.)

Imagine taking a case to court, losing, and being left with a judgment debt for thousands against your name? You would have to find the money to pay the debt and deal with the impact on your credit score. All because you wanted to make a compensation claim.

For this reason alone, being told that your solicitor will not take your claim on a no win no fee basis, as a private client, or any other way, can be a good thing.

2.      Your claim is of low-value

The small-claims limit, below which legal fees are not paid, is £1,000 in personal injury cases, and £10,000 otherwise.

In principle, this means that most personal injury cases would be eligible for costs if successful.

But not all.

Minor injuries, limited psychological upset claims, and cases where the claimant makes a quick recovery, can mean that costs will not be paid even if the claimant is successful.

As a result, the claimant’s own solicitor’s fees and disbursements would have to be paid out of their damages. In practice, this means that the claimant would be left with nothing.

In other cases where personal injury is not claimed, such as many data protection breach claims, even recovering £9,999 would mean that costs do not have to be paid. Again, the winning claimant could end up with nothing once his or her own legal fees, disbursements, etc. have been met.

Going back to the discussion on After the Event insurance, even if the claimant is willing to pay for the insurance out of their own pockets, the fees can be extremely high, and often more than the total compensation the innocent claimant might expect to recover. So, in the event that the claimant succeeds in their claim, they might end up paying all of their damages over to their own insurer before also having to pay out of their own pockets for court fees, experts’ fees etc.

And that’s before paying the 25% success fee (or more with some firms, not Donoghue Solicitors) to their own solicitor.

With that in mind, why bother claiming at all?

This assessment is known as “the costs/ benefit analysis” and is part of the solicitor’s job of ensuring that they act in the best interest of the client.

Winning, but being left with nothing but debt, is clearly not in their best interests.

3.      Pressure of work

Solicitors are the most heavily regulated professionals in England and Wales. More than doctors. More than accountants. More than anyone.

The hoops they have to jump through to satisfy:

  • the Solicitors Regulation Authority;
  • their professional indemnity insurers ;
  • the Legal Ombudsman;
  • the Information Commissioner’s Office;
  • the Courts (solicitors are Officers of the Court, unlike barristers, and have specific duties to perform there); and
  • many others

mean that running cases is just one part of the job.

Failure to keep the governing bodies happy can result in serious consequences, including being struck off the roll of solicitors, having to close the firm, and bankruptcy.

It is no surprise then that many solicitors will limit the amount of clients they take, even if those people have potentially good claims, because they do not want to risk failing in their duties to their existing clients, governing bodies, staff, creditors, and others.

4.      Personality Issues

Making a compensation claim can be an uncertain business. When clients ask me “how long will it take?” the answer is always: it depends.

It depends on:

  • how much co-operation I receive from my client;
  • how quickly I receive the information I need to decide what to claim for, if at all;
  • if we have funding issues to deal with;
  • how quickly the defendant responds to the claim, if at all;
  • if the defendant fights the claim, and why;
  • if there are witnesses to track down and interview;
  • if we have to issue proceedings to force the defendant to produce evidence;
  • if we have to issue full court proceedings to take the case to trial;
  • if there are settlement negotiations;
  • what court delays we experience;
  • if we go to trial, and if a jury is involved; and
  • if we get paid, and when.

With all this in mind, compensation claims can take anywhere from a few months to many years. It is not uncommon for cases to take two to three years to reach trial.

Having a good working relationship between the solicitor and the client during the time a case is running is vital.

People work best with people they like.

It is for this reason that clients should make sure they have a good fit with a solicitor they like and trust before agreeing to start the relationship. After all, the solicitor will be making demands on their client’s time, resources, and potentially finances.

Solicitors think about whether the client is a good fit too. We can’t win cases on our own. We need our clients’ full, helpful co-operation.  And smart clients know that the solicitor needs to be left alone to do his or her job, that’s what the client is paying for after all. Constant emails, phone calls, and other interruptions not only increase the bill but result in a strained relationship, which is bad for both the lawyer and the client.

What to do if a solicitor won’t take your case on a no win no fee basis

Solicitors are generally free to decline to represent whoever they like. They don’t have to give reasons or enter discussions about why, but the reasons are likely to involve some or all of the issues above.

If the solicitor you approached won’t take your case there is nothing to stop you enquiring with another lawyer. There are over 140,000 solicitors practising in England and Wales so there are plenty of options.  The Law Society’s find a solicitor service is a good place to start.

 

Kevin Donoghue is the Solicitor Director of Donoghue Solicitors, a specialist law firm dealing with compensation claims against the police, personal injury accident claims, and professional negligence claims.

 

 

 

 

 

What Does a Police Solicitor Know About Ethics?

Picture of Actions Against the Police Solicitor, Kevin DonoghueBy Kevin Donoghue, Solicitor

I was disappointed to read that another police solicitor is to be investigated by the Solicitors Regulation Authority (“SRA”) about ethical breaches.

(In this article a “police solicitor” is one who represents police forces and/ or the Police Federation (the staff association for all police constables, sergeants, and inspectors) when dealing with inquests, inquiries, and other matters. They also defend civil actions against the police made by victims of police misconduct and brought by solicitors like me.)

The police solicitor in the story linked above represented the Police Federation and has been interviewed under caution after five Thames Valley police officers gave differing accounts of the death of a man during a search.

The victim, Habib Ullah, died six years ago in a car park in High Wycombe, Buckinghamshire, while police searched for drugs which they believed were in his mouth.

The Independent Police Complaints Commission (“IPCC”) initially investigated and received statements from the officers. But it re-opened the case after an inquest into Mr. Ullah’s death was abandoned when new evidence emerged during their accounts.

The IPCC decided to look at the discrepancies between the statements it originally received and the police officers’ accounts given during the inquest. It interviewed the five officers and the police solicitor under caution and then took the unusual step of referring the case to the Crown Prosecution Service, alleging perjury and perverting the course of justice.

The Crown Prosecution Service noted that the police officers’ statements had been altered but declined to prosecute. The IPCC is now pushing for gross misconduct charges to be brought against the police officers. It has promised a full report once the fresh inquest into Mr. Ullah’s death has concluded.

The IPCC has also referred details of the investigation and its findings directly to the solicitors’ governing body, the Solicitors Regulation Authority, for it to consider the police solicitor’s part in the matter.

Hillsborough Police Solicitor Conduct

This is not the first time that a police solicitor has altered police officers’ statements after the event.

Mr. Ullah’s case comes on the back of the ongoing Hillsborough investigations, where it is alleged that South Yorkshire Police’s solicitor helped the Force cover up the truth about the Disaster.

In the Hillsborough Report the police solicitor, an experienced partner at a high-profile firm, was criticised for the “review and alteration” of 116 police officers’ statements. It said that his review recommended to a South Yorkshire Police Chief Superintendent that the statements remove or alter criticisms of senior officers, but that derogatory remarks about the Liverpool fans should be kept (p.56, para 1.253). As a result:

“the removal of conjecture or opinion was highly selective and officers’ comments on the hostility of the crowd remained as a statement of fact.” (p.325, para 2.11.74)

This was to have far-reaching consequences which negatively affected the outcome of the inquests, Inquiries, compensation claims against the police, and the bereaved families’ long fight for justice. Twenty five years later facts are finally coming out in the Report and the Hillsborough Inquests which should have been known at the beginning. As a lifelong Liverpool FC fan and Kop season ticket holder, this injustice, partial responsibility for which can be laid at the door of the police solicitor retained by South Yorkshire Police, still rankles.

Police Solicitor Conflict of Interest

In the Hillsborough case, it could be argued that the police solicitor had to deal with a difficult conflict of interest: he was representing the best interests of his client (South Yorkshire Police as a whole) while also taking instructions from people who may have harmed it (the senior police officers responsible for the Disaster).

But while this may seem to be a difficult situation, the experienced police solicitor ought to have known how to act.

This is because solicitors, unlike barristers, are officers of the court. The full title of a solicitor is a “solicitor of the Senior Courts of England and Wales”. All solicitors are taught about the weighty obligations of this role during ethics classes at law school.

Solicitors have a duty to the court first, and their clients second.  In the House of Lords case Arthur J.S. Hall and Co. v Simons(AP)[2000] UKHL 38, [2002] 1 AC 615 Lord Hope described the obligations when referring to trial advocates, but this applies equally to solicitors who run cases before trial. He said:

“The advocate’s duty to the court is not just that he must not mislead the court, that he must ensure that the facts are presented fairly and that he must draw the attention of the court to the relevant authorities even if they are against him. It extends to the whole way in which the client’s case is presented, so that time is not wasted and the court is able to focus on the issues as efficiently and economically as possible.” (my emphasis)

In stating these points, the court was emphasising that the solicitor is independent from his client when deciding how best to perform his duties. This right is established in the SRA’s Ten Principles of Conduct which all solicitors are bound to follow. The first three are:

  1. uphold the rule of law and the proper administration of justice;
  2. act with integrity;
  3. not allow your independence to be compromised.

The fourth rule: “act in the best interests of each client” is the one that the police solicitor would, no doubt, say was guiding his conduct. But you can’t get there without ignoring the first three.

 Ethics in Legal Practice

In day-to-day practice, the Procedure Rules of Court dictate how the solicitor must fulfil his or her duties. They are clear and unambiguous. For example, when deciding what documents need to be disclosed in a civil case, a solicitor should refer to Rule 31.6 of the Civil Procedure Rules (“CPR”) which says:

31.6  Standard disclosure requires a party to disclose only–

(a) the documents on which he relies; and

(b) the documents which –

(i) adversely affect his own case;

(ii) adversely affect another party’s case; or

(iii) support another party’s case; and

(c) the documents which he is required to disclose by a relevant practice direction.

(my emphasis)

By reminding the solicitor that he is under a duty to disclose documents which might harm his own client’s case or support another party’s case, he is reminded that his primary duty is to the court, to uphold the rule of law, and assist in the proper administration of justice.

Equally, witness statements must be verified by a statement of truth, which states that the person providing the statement believes the facts stated in the document are true (CPR r.22.1).

If a witness knowingly provides a false statement without an honest belief in its truth, he or she can be committed for contempt of court (CPR r.32.14).

And if a solicitor is found to have played a part in a witness providing a false statement, he or she risks disciplinary sanctions from the SRA for breaching the Principles outlined above. For that reason the solicitor involved in the Hillsborough cover-up was referred to the SRA and the IPCC has also referred the police solicitor involved in the Ullah case to the solicitors’ governing body.

Police Solicitors’ Role in Institutional Disregard for Ethics

In both the Hillsborough and Ullah cases described here it is important to note that the solicitors involved in alleged ethics violations were external advisers. It would not be fair to tar all police solicitors with the same brush, but it is worth asking whether an institutional disregard for ethical conduct exists within the police. After all, officers’ statements were altered with their consent, potentially leading to miscarriages of justice.

The police solicitor has an important role to play when dealing with investigations and claims against the police, particularly with respect to their ethical responsibilities when reviewing adverse evidence.

By reminding themselves, and their clients, of their duties as officers of the court, they can avoid embarrassing and potentially career-threatening investigations by the SRA, and we can all benefit from the proper administration of justice.

 

Kevin Donoghue is a solicitor and director of Donoghue Solicitors Ltd., a law firm which specialises in civil actions against the police. Contact him on 0151 933 1474 or via the website https://www.donoghue-solicitors.co.uk.

 

 

 

How Police Taser Use is Failing Us All

Is the current police taser policy working? A few recent reports about the police’s use of tasers in the UK suggest not.

Picture of police Taser claims solicitor, Kevin DonoghueBy Kevin Donoghue, Solicitor

In 2013, police tasers were deployed 10,380 times across England and Wales. The weapons, which discharge an electrical charge said to be 50,000 volts, cause temporary paralysis. As a result, a police taser can be an extremely effective tool to ensure compliance.

But because the weapon can cause serious injury, the Association of Chief Police Officers’ (“ACPO”) own guidelines state that a police taser should only be used where:

  1. the police officers face violence; or
  2.  when they are in a situation where the threat of violence is so severe they need to use force to protect the public, themselves, and/ or the person they are dealing with.

 

Police Taser Use in the News

 

Despite that clear guidance from their own leaders, these recent reports suggest that the officers armed with police tasers are not sticking to their bosses’ rules:

  1. A BBC report states that in the South of England taser use has doubled, leading Amnesty International to express concern about whether they are being used in minor situations instead of the life-threatening or serious violence ones they were introduced to deal with.
  2. Staffordshire Police taser use is three times more than the neighbouring West Midlands Police. The force has the highest level of police taser use per person in the country, and is being investigated by the Independent Police Complaints Commission (“IPCC”) about it.
  3. Lincolnshire Police are using police tasers more than twice as much as neighbouring forces such as Nottinghamshire.
  4. The IPCC questions the point blank use of police tasers.  It notes that the police are officially no longer trained to use the technique of ‘drive stun’, where the police taser is discharged while being held directly against the victim’s body rather than fired from a distance. Despite this, officers are shown that the technique exists and use the police tasers in this way in 16% of cases. The IPCC said that showing officers the option existed but being told not to use it was ‘counter intuitive’. The IPCC commissioner also said that using the taser in this way ‘is purely a means of pain compliance’ which often made the victims of the police taser assaults more resistant.

 

Police Taser Defence

 

With all this recent negative publicity (the oldest story in that group is from 8 April 2014) you might expect the police to go on a charm offensive. But instead of re-assuring the public that the ACPO guidelines are followed, that training will be reviewed, and that the controversial ‘drive stun’ technique will be discontinued, all these reports were defended by the police for various reasons:

  1. Chief Superintendent Paul Morrison head of operations command at Sussex and Surrey police, justified the rise in police taser use by saying it coincided with more officers getting the weapons, and when discussing a case involving the police taser assault on a 14-year-old girl, said “Taser was a low level of force, if you use restraints or baton strikes… they could have led to injuries.”
  2. The Staffordshire Police and Crime Commissioner said police tasers were often used as a deterrent.
  3. Lincolnshire Police Force’s assistant chief constable, Lee Freeman, said that Lincolnshire’s large rural area is a factor in their comparatively high police taser use; that more of their officers were trained in taser use; and, according to the BBC report, “he said tasers were usually used in circumstances when someone [is] threatening to use violent behaviour.” (my emphasis).
  4. ACPO said that the controversial ‘drive stun’ technique is still shown during training because it could be needed in an emergency. They also questioned the statistics, suggesting that ‘angled drive stun’ (which they said is a ‘viable tactic’) was confused with ‘drive stun’ (the pure ‘pain compliance’ method.)

 

Photo of a police Taser Weak Arguments to Justify Increasing Police Taser Use

 

My thoughts on these responses are:

  1. Ch Supt Paul Morrison’s argument that more tasers equals more use has merit, but to then suggest that police tasers are ‘low level’ weapons undermines his argument. If they are so innocent, why are police tasers being issued to so many officers? Why is Amnesty International involved? Why are the IPCC criticising the police for using them for “pain compliance”?
  1. Staffordshire Police’s point that the tasers are often used as a deterrent is also justified according to the IPCC statistics, but that doesn’t explain why they are using the weapons so much, especially when compared to near neighbours like West Midlands Police, who have a comparable blend of cities, towns, and rural areas to police.
  1. Lincolnshire police say that being a rural force means that they must use their tasers more. This is disingenuous. England and Wales has lots of rural areas where other forces are able to deal with dangerous situations without resorting to the use of police tasers. Derbyshire, for example, only used the weapons 83 times in all of 2013, less than a third of Lincolnshire Police’s total. What did Lincolnshire do before they got their hands on police tasers? Simply let criminals and others they wanted to apprehend get away?

No doubt like Ch Supt Morrison of Sussex and Surrey Police, they would say that if they had to use a truncheon or fist instead that could also cause injury. Perhaps, but often not to the extent of incapacitating someone, who may then fall to the ground and suffer serious secondary injuries, which can be worse than the initial taser shock.

 I am also troubled that, according to the Assistant Chief Constable of Lincolnshire Police, police tasers are “usually” but not always used “in circumstances when someone [is] threatening to use violent behaviour”. The ACPO guidelines above say that the weapons should only be used when the officers or others face violence or the threat of violence. When and why did Lincolnshire Police disregard official ACPO policy? What other circumstances now justify using a police taser?

  1. ACPO’s response to the critical IPCC report on ‘drive stun’ is to defend the tactic, saying that it could be needed in an emergency, e.g when the initial firing missed its target. Are we expected to believe that happens in 1 in 6 incidents? Can’t the police shoot straight?

They also questioned the statistics, suggesting that ‘angled drive stun’ (a ‘viable tactic’) was confused with ‘drive stun’ (the pure pain compliance method). This, to me, seems to be little more than deflecting blame and trying to change the subject to one of how the report was prepared, rather than dealing with the issues raised.

As a solicitor who deals with civil actions against the police on a daily basis, I am not surprised that the police’s responses were defensive. Their mantra when dealing with compensation claims seems to be: deny, deflect, and disrupt. They appear to be taking the same approach with the media.

Police Taser Abuse Defended

 

Tasers can be deadly weapons and, as ACPO themselves state in their guidelines, should only be used as a last resort when faced with violence or a severe threat of violence. The alarming rise in police taser use, the continued use of the painful “drive stun” technique, and Assistant Chief Constable Lee Freeman’s comments suggests this is not happening.

Reading the reports above I am struck that the various police forces respond to challenges by defending their techniques, denying wrongdoing, and challenging the statistics.

This is a systemic issue. Instead of excuses, we need solutions.

It matters because police forces are meant to serve the public, not the state, and an escalation in the use of police tasers suggests that things may have moved too far in the direction of control and compliance.

If the police are to win back public confidence, they need to learn lessons from the seemingly out-of-control increase in police taser use and their bungled media response to it. They could start by properly training police officers using agreed ethical standards which apply to all forces, avoid blaming others, and stop trotting out excuses.

 

Kevin Donoghue is a solicitor who specialises in civil claims against the police. You can contact him via his firm’s website, www.donoghue-solicitors.co.uk, or on 0151 933 1474.

 

Image credit: Marcelo Freixo CC licensed