Why Did Sir Cliff Richard Get So Much Compensation?

Photo of Kevin Donoghue, solicitor, who considers Sir Cliff Richard's compensation claim.

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

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

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

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

What Happened?

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

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

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

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

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

Liability Issues

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

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

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

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

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

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

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

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

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

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

Quantum

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

General Damages

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

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

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

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

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

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

Special Damages

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

Valuing Sir Cliff Richard’s Compensation Claim

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

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

And

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

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

Aggravated Damages

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

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

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

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

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

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

Special Damages

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

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

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

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

Damages are not a windfall

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

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

Why Celebrities are Different

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

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

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

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

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

Compensation for Damage to Reputation

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

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

 

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

Should a Criminal Conviction Prevent a Police Officer From Serving?

Photo of Daniel Fitzsimmons, Chartered Legal Executive, who discusses a criminal conviction for a serving police officer.

Daniel Fitzsimmons, Chartered Legal Executive considers the consequences of criminal convictions for serving police officers and the public.

By Daniel Fitzsimmons, Chartered Legal Executive at Donoghue Solicitors

I recently settled a claim against Avon & Somerset Police for Steven Smith. Mr Smith (details used with his kind permission) was assaulted by PC F, a police officer in Bristol. The police officer received a criminal conviction for “assault by beating”. Recently we found out that the officer was still serving. Should he be?

Why Did PC F Get a Criminal Conviction?

You can read the full case report about Steven’s case here.

Briefly, two female police officers, PC P and PC S, escorted Mr Smith out of a pub and ordered him to leave Bristol town centre. A third (male) officer, PC F, joined them outside. Steven refused to leave, and PC P told him he was under arrest. While PC P and PC S were attempting to handcuff Mr Smith, PC F grabbed Steven around the neck from behind using his right arm. A witness described it as a “choke hold where the person’s neck is within the V bend section of the arm”.

Choke holds restrict blood and/ or air flow to the brain. They can cause serious injury and even death. For this reason, they are banned by many police forces. PC F kept Steven Smith in a choke hold for about 15 seconds. During this time Steven momentarily lost consciousness and his legs buckled beneath him. The officers helped him to his feet and drove Mr Smith to a nearby police station to be processed.

At the station the female officers reported their concerns about PC F’s conduct to a custody sergeant. Following an investigation, PC F was prosecuted for the criminal offence of assault by beating.

Two courts found him guilty:

  1. Bath Magistrates’ Court convicted him for assaulting Steven Smith. The officer was fined £100, and ordered to pay a £20 victim surcharge, and £220 costs.
  2. PC F appealed to Bristol Crown Court, where the Court upheld his criminal conviction. The Crown Court judge said that “the force for that 15 second period was disproportionate in all the circumstances and therefore unreasonable.”

Consequences

My client (it turns out wrongly) thought that the criminal conviction meant that PC F would also be dismissed from the police.

His view was not unreasonable. After all, the police are meant to uphold the law, not break it. And, for a “bobby on the beat”, a conviction for assaulting a member of the public in the course of his employment has added significance. Police officers like PC F routinely use force to arrest people. The burden on them to make sure arrests are effected lawfully, safely, and using appropriate techniques, is high.

Failing to do so can render their conduct unlawful. As Mr Smith’s case shows, this can result in criminal convictions, costly criminal and civil penalties, and reputational damage for the officer and their Police Force. PC F now has a criminal record and was ordered to pay £340 by the Magistrates. His criminal misconduct cost the public too. The taxpayer-funded Avon & Somerset Police rightly paid £4,500 plus legal costs to Mr Smith by way of compensation because it was responsible for the unlawful acts of its officer.

And yet PC F still serves in Avon & Somerset Police.

Misconduct Proceedings

Mr Smith does not know if, or how, Avon & Somerset Police’s internal misconduct proceedings were concluded. (Steven was not a party to them, so was not told.) But PC F continues to serve in Avon & Somerset Police despite his criminal conviction.

My colleague Kevin Donoghue has previously written about how the police misconduct system works. You can read his analysis of the guidance and how it applied to one of his client’s cases here.

Police misconduct is

‘unacceptable or improper behaviour and for police officers will involve a breach of the Standards of Professional Behaviour set out in Schedule 2 to the Conduct Regulations.’

Gross misconduct, which can result in dismissal from the police, is

‘a breach of the Standards of Professional Behaviour which is so serious that dismissal would be justified.’

Interestingly, the primary purpose of police misconduct proceedings is not to punish police officers. Instead, they are meant to maintain public confidence. In R (Green) v Police Complaints Authority, Lord Carswell said:

‘Public confidence in the police is a factor of great importance in the maintenance of law and order in the manner which we regard as appropriate in our polity. If citizens feel that improper behaviour on the part of police officers is left unchecked and they are not held accountable for it in a suitable manner, that confidence will be eroded.’

In PC F’s case, it is likely that the panel tasked with considering his misconduct would have looked at the seriousness of the misconduct, the purpose of imposing sanctions, and then chosen an appropriate sanction, if any.

The panel would have looked at the officer’s responsibility for the misconduct, the harm caused, and the existence of aggravating or mitigating factors.

The criminal proceedings will have helped because two criminal courts found that PC F was responsible for assault by beating on a member of the public. He had no one to blame but himself.

A conviction for assault, which undermines public confidence in policing, would have suggested a more serious sanction, such as dismissal for gross misconduct. Relevant aggravating factors to support this include PC F abusing his powers, using gratuitous violence, and the vulnerability of his victim.

But it is likely that PC F presented arguments in mitigation. The police misconduct panel would probably have been asked to read the comments of the Crown Court judge, who described the assault as “a momentary and isolated mistake”. The judge felt that PC F “would still be an asset to the Avon and Somerset Constabulary” despite upholding the lower court’s criminal conviction for assault.

It appears the disciplinary panel was persuaded, as PC F is still serving in the police.

Impact on Public Confidence

After the incident Mr Smith worried that he would be subject to police retribution. Knowing that PC F is still serving in his town heightens that fear. Steven doesn’t want to come across his assailant again. For the wider public, it may come as a surprise to learn that the police misconduct system is focused on maintaining public confidence rather than punishment. This means that serving police officers can keep their jobs despite criminal convictions. Does that inspire confidence in you?

 

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

 

What Some Domestic Abuse Victims Have in Common

Solicitor Kevin Donoghue, discusses what some domestic abuse victims have in common.

Kevin Donoghue, Solicitor Director of Donoghue Solicitors considers the exploitation of domestic abuse victims by sexual predators in the police.

By Kevin Donoghue, solicitor

Two recent reports show how some police officers take advantage of victims of domestic abuse. The stories share common themes and fit with my clients’ experiences. This suggests that the problem is widespread, but that it can be readily identified by motivated police officers and, hopefully, prevented.

Metropolitan Police Sergeant Dismissed for Gross Misconduct

On 11 June the Independent Office for Police Conduct confirmed that Police Sergeant Neil Nash, 38, was sacked from the Metropolitan Police Service. In 2015 Nash was the custody sergeant at Plumstead Police Station when a woman was arrested and cautioned for a domestic incident. He obtained her details and went to the woman’s home on numerous occasions. The woman was known to be vulnerable. Despite this the Police Sergeant kissed and attempted to touch her intimately.

The woman complained about PS Nash’s misconduct. On 7 June, the officer was found guilty of gross misconduct and dismissed. Jonathan Green, the Regional Director of the Independent Office for Police Conduct, said,

“Officers are trusted to uphold professional standards of behaviour especially when they come into contact with people who are at their most vulnerable.

“Instead of providing the service expected of a sergeant, PS Nash abused his position of trust, overstepped clear boundaries, and caused psychological harm to this woman.”

A Chief Inspector of Merseyside Police Faces Police Misconduct Panel

On 2 July 2018 Chief Inspector Aneurin Audas faced a misconduct panel to answer allegations that he had “unwanted and inappropriate” contact with a victim of a domestic incident while on duty for Merseyside Police.

The misconduct panel heard that, on 31 March 2011, the Chief Inspector attended a report of a domestic incident and “fondled a domestic violence victim before ‘snogging her’ and groping her breast”. It is also alleged that he returned to the victim’s home address the next day, “without a legitimate policing purpose”.

His conduct is alleged to be in breach of the Standards of Professional Behaviour in respect of Discreditable Conduct. Sanctions for this can include dismissal for gross misconduct. The officer denies the allegations. The hearing continues.

Serious Corruption Involving Domestic Abuse Victims

Unscrupulous police officers can take advantage of vulnerable victims of “domestic incidents”. (These can include victims of domestic violence or domestic abuse).

But, as (former) PS Nash’s case shows, internal police Professional Standards Departments take a dim view of this kind of abuse of position for a sexual purpose. This is because it is a form of serious corruption, which is defined as:

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

A 2017 report by Her Majesty’s Inspectorate of Constabulary and Fire & Rescue Services (HMICFRS) confirmed that this kind of police misconduct is a nationwide problem. It affected all but one police force between March 2014-March 2016.

And the cases described above highlight another pattern which came out in that report: police officers abusing vulnerable victims of domestic abuse.

HMICFRS said that 40% of allegations involved vulnerable victims of crime, and that 39% of accusations of police abuse of position for sexual gain involved victims of domestic abuse.

This shocking statistic may be under-reported. As the 2017 report noted, between 1 December 2013 and 30 November 2014 only 33 officers had been dismissed after having a relationship with a vulnerable person.

This “apparent disconnect” between the number of alleged cases and disciplinary action suggests that some of these predators are still serving, giving them the opportunity to repeat their misconduct.

Common Theme in Domestic Violence Cases

I currently represent, and have previously represented, women across the country who have suffered similar experiences to the two described above. Their stories follow a familiar pattern:

  1. The (female) victim reports a domestic incident. This is usually an incident of domestic violence or a pattern of abuse. She is considered a vulnerable person because of her circumstances.
  2. A (male) police officer attends on his victim at home, strikes up a friendly relationship, and shares contact details.
  3. The officer makes repeated contact, by personal visit, text message, phone calls. These communications become more friendly/ flirty. Often the victim is flattered by the interest from a police officer, someone she holds in high esteem, is attentive, and makes her feel safe.
  4. The police officer makes a sexual advance. In many cases it is unwanted and immediately declined. But, if not immediately rebuffed, he pursues a sexual relationship.
  5. The victim recognises, either immediately or shortly afterwards, that the police officer’s conduct is inappropriate. She reports it and makes a police complaint.
  6. The victim assists the police’s Professional Standards Department with their enquiries by providing evidence, statements, and even evidence at a hearing. This adds to her feelings of stress, guilt, and shame. In some cases, the police abuse leads to long-term psychological damage. It cannot be rationalised or explained away by telling the victim she is not to blame, and that the male officer is the one who abused his position by targeting a vulnerable woman.

While individual circumstances vary, the common theme of a vulnerable victim being abused by a sexual predator is ever-present.

Action

Two out of every five reported incidents of police abuse of position for a sexual purpose involve vulnerable victims of domestic incidents. There may be many more.

Sadly, this is an entirely preventable problem which affects countless victims and undermines public confidence in the police. But this type of serious corruption often follows predictable patterns. Fellow officers and internal police force investigators need to be aware of them to prevent misconduct by the abusers in uniform.

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

Taking the biscuit with the Police Code of Ethics

Photo of Kevin Donoghue, solicitor, who discusses the police's Code of Ethics.

Kevin Donoghue discusses the police’s Code of Ethics.

By Kevin Donoghue, solicitor 

This morning, I appeared on Nick Ferrari’s LBC radio programme to discuss PC Thomas Hooper’s disciplinary hearing.
 
Among other charges, PC Hooper is alleged to have stolen a colleague’s biscuits. This led to questions about whether the allegations against him merit a full disciplinary hearing. In the comments section of the Evening Standard piece, one person said:
 
With all the serious stuff going on in the world is a police officer taking a tin of biscuits and speeding in a police vehicle really worth a police misconduct hearing, surely a severe ticking off by a senior officer would have sufficed.
 
I suspect many would agree if it was as simple as that. But when we dig deeper it’s clear why this matter went to a disciplinary panel. It is about more than a tin of biscuits. As I understand it, there are three allegations against this Metropolitan Police officer. It is alleged that he:
 
1. misappropriated property (stole the biscuits) AND
 
2. sought to abuse his position to have a fixed penalty notice for speeding cancelled AND
 
3. gave false statements in respect of both allegations.
 
If proven, the allegations against PC Hooper are serious, and go right to the heart of public trust in the police and the officer’s integrity. They matter because police officers are professionals. This means that they, like solicitors and doctors, are bound by a Code of Ethics, which you can read here. The police’s Code is meant to:
 
support each member of the policing profession to deliver the highest professional standards in their service to the public.
 
It is rooted in Sir Robert Peel’s 1829 “principles”. Peel’s principles emphasise the need for the police to “secure and maintain public respect”. They have been updated for modern policing in the 2014 Code of Ethics. It is based on nine policing principles, which are:
 
Accountability
 
You are answerable for your decisions, actions and omissions.
 
Fairness
 
You treat people fairly.
 
Honesty
 
You are truthful and trustworthy.
 
Integrity
 
You always do the right thing.
 
Leadership
 
You lead by good example.
 
Objectivity
 
You make choices on evidence and your best professional judgement.
 
Openness
 
You are open and transparent in your actions and decisions.
 
Respect
 
You treat everyone with respect.
 
Selflessness
 
You act in the public interest.
 

Applying the Police Code of Ethics

 
The Code of Ethics applies the policing principles in Standards of Professional Behaviour. The Standards “reflect the expectations that the professional body and the public have of the behaviour of those working in policing.”
 
In PC Hooper’s case, the most important and relevant Standard is the first one:
 
1. Honesty and integrity
 
I will be honest and act with integrity at all times, and will not compromise or abuse my position.
 
This would cover the first two allegations. The third allegation is also dealt with in a guidance box for the first standard:
 
Examples of meeting this standard are when you:
 
• are sincere and truthful
 
• do not knowingly make false, misleading or inaccurate oral or written statements in any professional context.
 
The disciplinary panel must decide if PC Hooper failed to meet this Standard, and any other relevant ones, in respect of the allegations made against him.

Sanctions for Breach of the Code of Ethics

 
If proven, the allegations against PC Hooper would amount to a breach of the Code of Ethics. It would then fall to the disciplinary panel to decide on an appropriate sanction. Options include management advice, written warnings, and dismissal.
 
But what of the suggestion that this is a storm in a teacup (presumably served without biscuits)? Could the police have dealt with it informally? Again, the police Code of Ethics addresses this at point 5.1.1 by noting that
 
Different procedures exist according to the type of unprofessional behaviour or misconduct alleged.
 
Supervisors are expected to use their professional judgment and discretion to proportionately deal with alleged unprofessional behaviour. Where appropriate, they must
 
act where a concern is raised about any behaviour, level of performance or conduct which may amount to a breach of the Code. (rule 5.1.4)
 
Actions to address breaches range from a “ticking off” (at the lower end of the scale) to referrals for disciplinary hearings, suspension, dismissal, and criminal proceedings (at the higher end). PC Hooper’s supervisors clearly felt a referral to the Directorate of Professional Standards was appropriate. Is it because, along with the serious allegations we know about, there is even more to this story? The Evening Standard reports Inspector Mark Bullen
 
said there had been a number of aggravating factors which had led to the misconduct allegations rather than matters being dealt with by way of management advice.
 
For transparency and to give the panel all relevant information, details of the “aggravating factors” should also come out in the hearing, which continues.
 
Kevin Donoghue is a solicitor who specialises in civil actions against the police.

Will the Independent Office for Police Conduct Work?

Photo of Kevin Donoghue, Solicitor, who discusses the Independent Office for Police Conduct.

Solicitor Kevin Donoghue discusses issues with the Independent Office for Police Conduct.

By Kevin Donoghue, solicitor director of  Donoghue Solicitors

On Monday 8 January 2018 the Independent Office for Police Conduct (IOPC) replaced the Independent Police Complaints Commission (IPCC). The IOPC is now responsible for overseeing the police complaints system in England and Wales.

The government describes the IOPC as “the reformed police watchdog”. Many who dealt with the IPCC agree that change was long overdue. But will it improve the police complaints system?

What Changes?

1. Leadership Structure

The Independent Office for Police Conduct has a new leadership structure compared to the Independent Police Complaints Commission. Dame Anne Owers, Chair of the IPCC and its Commissioners, has been replaced by Michael Lockwood, Director General of the IOPC, and a Board. The new organisation has non-executive directors, and executive team, Regional Directors, and a Director for Wales.

The government says this set up:

“will ensure clear lines of accountability and a streamlined decision-making process.” The IOPC says this change was necessary because “Since 2013, we have doubled in size and now take on six times as many investigations. This led us to ask the Home Office for structural changes to better suit our much-expanded organisation. These changes were agreed through the Policing and Crime Act 2017.”

Michael Lockwood is an accountant with a background in local government. Neither he, nor the executive team, regional directors, or Director for Wales, have a police background. They say:

“We are independent, and make our decisions entirely independently of the police and government.”

2. Increased Powers

While she was Home Secretary, Theresa May introduced measures which became the Policing and Crime Act (2017). (I wrote about why she did this here.) The government says that the Policing and Crime Act will enable the IOPC to:

  • initiate its own investigations without relying on a force to record and refer a particular case for investigation
  • reopen cases it has closed where there are compelling reasons, such as new evidence
  • increase the IOPC’s independence from the police by abolishing ‘managed’ and ‘supervised’ investigations
  • investigate all disciplinary investigations against chief officers
  • present cases against officers in the police disciplinary process when the force disagrees with the IOPC’s findings.

Government Minister Nick Hurd said the effect of these changes will be to:

“provide powerful scrutiny for policing, with new powers to begin investigations when they are deemed appropriate and be decisive in concluding cases.”

3. User-Friendly Website and Social Media Presence

The new IOPC website (www.policeconduct.gov.uk) replaces the old, and to many, confusing www.ipcc.gov.uk site (this domain name now takes you to the IOPC site). The new site is mobile-friendly and easy to navigate. This is important as many people use their smartphones to get access to the internet. In the same vein, the IOPC has replaced the IPCC on social media. Follow it on twitter @policeconduct. Contact the IOPC’s helpdesk on twitter at @IOPC_Help.

What Stays the Same?

As with the IPCC, the Independent Office for Police Conduct oversees the police complaints system and sets standards by which police deal with complaints in England and Wales. It is not limited to the police though, as the IOPC oversees:

  • all police forces in England and Wales
  • the National Crime Agency
  • Her Majesty’s Revenue and Customs
  • the parts of the Home Office that carry out border and immigration functions
  • police and crime commissioners
  • the Mayor’s Office for Policing and Crime
  • the Gangmasters and Labour Abuse Authority
  • British Transport Police
  • Ministry of Defence Police.

Even though the IOPC’s new powers (mentioned in 2 above) come from the Policing and Crime Act 2017, it has yet to implement most of the changes. This means that, on the IOPC’s inception date (8 January 2018) the old, and  much-derided systems, remain in force. For example, the IOPC’s statutory guidance is inherited from the IPCC. The IOPC says that it will update this in summer 2018, and issue advice notes as required. But for now, it is a carbon copy of the IPCC’s police complaints scheme. This means that most complaints are still dealt with internally by police force Professional Standards Departments. This is especially concerning in cases of serious corruption involving senior police officers, as I explained in this blog: Are police sexual exploitation cases being brushed under the carpet?

As the screenshot below shows, a twitter user asked the IOPC when it expects to “be able to initiate inquiries without referral from a force and to determine appeals”. The IOPC said “The Home Office anticipate they will bring these powers in early 2019.”

A tweet from the IOPC

A tweet from the IOPC confirming an implementation date of new powers.

The Challenge for the Independent Office for Police Conduct

Hailing the IOPC, Minister for Policing and the Fire Service Nick Hurd said:

“We are absolutely determined to make the police complaints and discipline systems simpler and more transparent for the benefit of the public. We want confidence in policing to continue to grow and be underpinned by the vital role the reformed IOPC will play.”

While they are laudable aims, people who want to bring complaints against the police now or in the near future are unlikely to notice any changes. They will be met with the same frustrations, delays, and avoidance tactics by the police. For many victims of police misconduct, the inadequate police complaints system adds insult to injury.

I am disappointed that the publicity surrounding the new watchdog was not backed up with real, actionable, power from day one. It’s important for public confidence in the police service that the government and IOPC move swiftly and decisively to implement the Policing and Crime Act statutory powers. Without them, replacing the IPCC with the IOPC will be little more than a wasteful rebranding exercise.

 

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

 

How police ignore guidance on outcomes in police misconduct proceedings

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

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

By Kevin Donoghue, solicitor

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

The College, which issued the guidance, describes itself as “the professional body for everyone who works for the police service in England and Wales. Our purpose is to provide those working in policing with the skills and knowledge necessary to prevent crime, protect the public and secure public trust.”

The College says that the guidance should help those who conduct misconduct proceedings. It does not replace existing guidance. Instead, it pulls together relevant legislation, case law, and good practice into one document. By doing so, the College hopes the guidance will “bring consistency in applicable outcomes following findings in misconduct proceedings.”

But it warns that it “does not override the discretion of the person presiding over the proceedings and it cannot and should not prescribe the outcome.” It also says that even though, “The guidance is there to assist those presiding over misconduct proceedings, they are not required to use it.“

So what’s the point? The College says that it is there to “assist ensuring consistency in decision making.”

If so, then it could help promote fairness to both police and public, accountability, and transparency. Such guidance is long overdue. Because, as, one of my client’s cases shows, decisions in police misconduct proceedings can be curiously lenient to say the least.

Police Assault and Battery

Recently, my client “Peter” settled his compensation claim against Northamptonshire Police for £10,000 plus legal costs.

Peter and his partner were separated. She had the children. One evening Peter was home in his flat when his partner called. She told Peter that she did not like him and he would never see his children again. He was upset and got drunk to numb his feelings. The neighbour in the flat below called the police, saying that she heard crying and banging.

Two officers, a female police constable (PC C) and male special constable (SPC Y), were sent to investigate. The call was logged as ‘a person threatening to commit suicide’. (Peter denied he wanted to do this.) Paramedics also attended with an ambulance.

The female police officer, PC C, was wearing a body worn video camera. It filmed some of what happened. PC C talked to Peter, who said he did not want their help or to go to hospital.

The officers ignored Peter’s wishes and tried to get him to his feet. They banged his head on a wall and pushed him against it. They handcuffed Peter to the rear, telling him this was “for his own safety”.

The officers walked Peter out of his flat onto a communal landing area above a stairwell. They started walking down the stairs. The handcuffs hurt. They were too tight, and Peter begged the police to remove them. He got upset and raised his voice when they ignored him. SPC Y told Peter to stop shouting or “I will drag you down”.

Peter, who was still drunk, said, “Do it. Do it.” The special constable said, “O.K.” and pulled Peter forwards. Peter fell face first down six stairs. The handcuffs prevented him breaking his fall. Peter smashed his face and right shoulder against the wall and floor at the bottom of the stairs.

He screamed in pain. SPC Y aggressively shouted, “Get up!”. Peter thought the police officer might assault him again, so he kneed the special constable in the groin.

The police dragged Peter to his feet and SPC Y put him in a headlock. They took him to the ambulance and SPC Y told Peter that he is under arrest for assaulting a police officer.

SPC Y put leg straps on Peter. These, with the handcuffs, made Peter completely immobile and vulnerable.

But SPC Y goaded him, asking Peter “How many of us would you like to come down and sit on yer?”

The paramedics took Peter to hospital. Blood tests confirmed Peter had not taken any medication. As he had said, he did not attempt suicide.

The police took Peter to Brackmills Criminal Justice Centre. An officer interviewed Peter and put the “assault PC” allegation to him. Peter denied he was responsible and said again that SPC Y threw him down the stairs.

The police released Peter after 17 hours saying they would take “no further action”.

Peter filed a complaint against the police and an investigator took a statement from him. Investigators also took statements from PC C and SPC Y, and interviewed them both under caution. PC C described the actions of SPC Y- of pulling Peter down the stairs- as being “incorrect” and “excessive”.

But despite this SPC Y denied any wrongdoing. Even though PC C’s body worn video showed what had happened, he denied dragging Peter down the stairs. He said that he had merely pulled Peter closer to him to take him down the stairs. And he blamed Peter for his fall, saying that Peter dropped his weight on his legs and fell down.

SPC Y was unrepentant. He maintained that his actions were reasonable, lawful, and necessary.

Despite this, he was accused of alleged gross misconduct. After a misconduct hearing SPC Y received “final written warnings” in respect of three proven misconduct charges:

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

Was that the right decision? Consider the “Guidance on outcomes in police misconduct proceedings” and make your own mind up.

What is police misconduct?

The “Guidance on outcomes in police misconduct proceedings” says that:

Misconduct is generally defined as unacceptable or improper behaviour and for police officers will involve a breach of the Standards of Professional Behaviour set out in Schedule 2 to the Conduct Regulations.

Under Regulation 3(1) of the Conduct Regulations:

  • misconduct means a breach of the Standards of Professional Behaviour
  • gross misconduct means a breach of the Standards of Professional Behaviour which is so serious that dismissal would be justified.

Purpose of police misconduct regime

It might surprise you to find out that “misconduct proceedings are not designed to punish police officers” (point 2.10). Instead, maintaining public confidence is key. As Lord Carswell stated in R (Green) v Police Complaints Authority:

“Public confidence in the police is a factor of great importance in the maintenance of law and order in the manner which we regard as appropriate in our polity. If citizens feel that improper behaviour on the part of police officers is left unchecked and they are not held accountable for it in a suitable manner, that confidence will be eroded.”

On this basis, the guidance states that the police misconduct regime should:

  • maintain public confidence in and the reputation of the police service
  • uphold high standards in policing and deter misconduct
  • protect the public.

There is a three-stage test for adjudicators considering police misconduct. They must:

  1. assess the seriousness of the misconduct
  2. keep in mind the purpose of imposing sanctions
  3. choose the sanction which most appropriately fulfils that purpose for the seriousness of the conduct in question.

Seriousness of police misconduct

The panel should assess seriousness by considering:

  • the officer’s culpability for the misconduct
  • the harm caused by the misconduct
  • the existence of any aggravating factors
  • the existence of any mitigating factors.

As the guidance notes at 4.10:

Culpability denotes the officer’s blameworthiness or responsibility for their actions. The more culpable or blameworthy the behaviour in question, the more serious the misconduct and the more severe the likely outcome.

And, at 4.11:

Conduct which is intentional, deliberate, targeted or planned will generally be more culpable than conduct which has unintended consequences, although the consequences of an officer’s actions will be relevant to the harm caused.

Consider SPC Y’s conduct in the light of this guidance.

SPC Y had no power in law to arrest Peter. This is because he had no honest belief that Peter was guilty of the offence for which he was arrested. He deprived Peter of his liberty without legal cause. False imprisonment is a serious matter.

Also, the special constable deliberately (or recklessly) assaulted Peter. SPC Y then tormented Peter, abusing his position of authority and humiliating his victim. After that SPC Y tried to avoid responsibility for his actions, blaming Peter for his fall. He refused to apologise or accept blame, even in the face of criticism from his colleague PC C and her body worn video evidence.

There is no doubt in my mind that SPC Y was responsible for his actions. This should have put him in the “more severe” category of likely outcomes.

Harm

Moving on to the harm caused by the misconduct, the guidance lists physical injury and loss of liberty as types of harm (at 4.57). It notes that “harm will likely undermine public confidence in policing.” And urges adjudicators to “always take seriously misconduct which undermines discipline and good order within the police service…”

SPC Y appeared to be out of control when he assaulted Peter. Even after the initial assault, he failed to regain his composure. He put Peter in a headlock, applied leg straps, and goaded him. Taken together, these physical assaults and false imprisonment amounted to harm likely to “undermine public confidence in policing.”

Aggravating Factors

The guidance describes aggravating factors in police misconduct proceedings as “those tending to worsen the circumstances of the case, either in relation to the officer’s culpability or the harm caused.”

Relevant factors which show a higher level of culpability or harm include:

  • abuse of trust, position, powers or authority
  • deliberate or gratuitous violence or damage to property
  • concealing wrongdoing in question and/or attempting to blame others
  • vulnerability of the victim.

SPC Y abused his position of authority as a police officer. He deliberately and repeatedly assaulted an intoxicated, and vulnerable, victim. He then tried to deflect blame, and refused to apologise for his wrongdoing. All this suggests a higher level of culpability and harm to the victim.

Mitigating Factors

The guidance says “Mitigating factors are those tending to reduce the seriousness of the misconduct.”

We don’t know what SPC Y raised in mitigation during his misconduct hearing. Relevant factors may have included:

  • misconduct confined to a single episode or brief duration
  • any element of provocation, threat or disturbance which may have affected the officer’s judgement, eg, in relation to the use of force in the heat of the moment
  • acting pursuant to a legitimate policing purpose or in good faith, ie, a genuine belief that there was a legitimate purpose but getting things wrong
  • mental ill health, disability, medical condition or stress which may have affected the officer’s ability to cope with the circumstances in question
  • whether the officer was required to act outside their level of experience and/or without appropriate training or supervision

SPC Y may also have offered personal mitigation, references etc.

Applying the guidance on outcomes in police misconduct proceedings

SPC Y’s conduct was considered serious enough to be dealt with at a misconduct hearing. The available sanctions were:

  • management advice
  • written warning
  • final written warning
  • dismissal with notice
  • dismissal without notice.

The guidance emphasises the need to “Consider less severe outcomes before more severe outcomes” and the misconduct panel stopped short of dismissal. It issued final written warnings instead. Why? When you consider the seriousness of his misconduct and the College of Policing guidance it strikes me that SPC Y got off lightly.

Peter and I both share concerns that this sends the wrong message to SPC Y and his colleagues. In effect, you’ll get away with it, even with body worn video evidence proving police misconduct.

The College of Policing says it hopes “The introduction of the guidance will mean there is increased fairness and proportionality in cases which is important for officers and public confidence in the hearings.”

If the way SPC Y’s misconduct was dealt with is anything to go by, it is long overdue.

 

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

 

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

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

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

By Kevin Donoghue, solicitor

Recently I wrote about the serious issue of police abuse of position for a sexual purpose. I expressed concern that the police are not tackling the issue, causing serious harm to victims. As a recent report shows, I am not alone. But, what it also shows is that police staff at all levels, from senior officers to volunteers, are now on notice.

What is Police Abuse of Position for a Sexual Purpose?

This form of serious corruption is defined as:

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

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

HMICFRS January 2017 Report

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

  • Police abuse of position for a sexual purpose is a nationwide problem. It affected all but one police force during the review period March 2014-March 2016.
  • 40% of allegations involved vulnerable victims of crime
  • 39% of accusations of police abuse of position for sexual gain involved victims of domestic abuse
  • Less than half (48%) of these police abuse cases were reported to the Independent Police Complaints Commission. This was despite clear guidance from HMICFRS and others.
  • Between 1 December 2013 and 30 November 2014 only 33 officers had been dismissed after having a relationship with a vulnerable person. This “apparent disconnect” between the number of alleged cases and disciplinary action means that some of these predators are still serving, giving them the opportunity to repeat their misconduct.

In its January 2017 report HMICFRS recommended action to deal with police abuse of position for a sexual purpose. It said:

“Within six months, all forces should have started to implement a plan to achieve the capability and capacity required to seek intelligence on potential abuse of authority for sexual gain. These plans should include consideration of the technology and resources required to monitor IT systems actively and to build relationships with the individuals and organisations that support vulnerable people.”

Police Response to the HMICFRS January 2017 report

Did the senior officers who set force policy listen to HMICFRS?

The inspectorate gave forces until 8 June 2017 “to develop and begin to implement plans to achieve the capability and capacity required to seek intelligence on potential abuse of position for a sexual purpose.”

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

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

It found that only two of the 43 police forces already had adequate capacity and capability in place. Of the remaining 41 forces:

  • Almost half (21) of force plans did not contain any reference to reviewing and improving the capability and capacity to identify potential abuse of position for a sexual purpose
  • Nine force plans contained some elements of capacity and/or capability but the force had either not commenced implementation or had provided insufficient information for HMICFRS to assess progress
  • Almost half of all forces did not have either the capability or capacity to monitor and audit every aspect of their IT infrastructure. (HMICFRS said that this was important to prevent and detect misuse of information held on police computer systems.)
  • Despite not being “resource intensive”, six forces failed to reassure HMICFRS that they had built links with staff in agencies that support domestic abuse victims
  • More than half (26) of all forces had failed to implement their plans, or had supplied such minimal detail that HMICFRS could not evaluate their progress.
  • Most concerning was the fact that 11 police forces did not provide sufficient information to assess whether they were responding to any elements of the recommendations.

The inspectorate noted creditable work at a national level. But, in one way or another, most police forces have failed to fully address this serious form of police misconduct. This is despite chief officers in those forces approving the national work, which focused on 3 areas:

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

1. Definition and strategy

An example of the work done at national level is that of the National Police Chiefs’ Council (NPCC). The NPCC includes senior police officers from every force in the country. In April 2017 it agreed a national strategy to deal with police abuse of position for a sexual purpose. This included creating a new definition for this form of serious police corruption. (HMICFRS previously referred to it as “abuse of authority for sexual gain”.) I quoted the agreed definition earlier.

It is worth noting that the NPCC definition includes corruption by police officers and police staff members. These include volunteers or staff contracted into policing or support roles. It has the potential to greatly increase the number of people caught by the guidance. This makes sense from a practical and public perspective. Police abuse of position for a sexual purpose should be dealt with the same way, regardless of the title of the person who committed it.

The NPCC strategy is intended to “prevent such behaviours from occurring in the first instance”. It also emphasises a commitment to working together. Forces say they will focus on “the means by which we will improve our collective approaches to the utilisation of proactive tactics to better gather intelligence, identify corrupt individuals and vigorously pursue perpetrators in an effort to remove them from the service for the benefit of the public and the service alike”.

They promise to focus on:

  • Prevention – this covers vetting, professional boundaries training, and guidance for supervisors;
  • Intelligence – this covers intelligence gathering, relationships with other agencies that support vulnerable victims, IT monitoring and audit, development of intelligence and the identification of intelligence gaps;
  • Enforcement – this covers recording cases as serious corruption, oversight of the force’s CCU, referrals to the IPCC, use of an investigative checklist, victim support and access to suitably trained specialist staff; and
  • Engagement – this covers working with support agencies, internal and external communication strategies, raising awareness and learning organisational lessons from previous cases

The consequence of this is that senior officers in all police forces agreed on the issue, and committed to work to prevent it.

2. Guidance by the College of Policing on Abuse of Authority for a Sexual Purpose

Supporting the NPCC’s work is the College of Policing (CoP). The CoP is the professional body for everyone who works for the police service in England and Wales. This includes police officers, special constables, police staff, and police volunteers.

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

As the introductory note states,

“There is no place in policing for those who abuse their position for sexual purposes.”

The CoP and NPCC agreed the guide in April 2017. All police forces received copies and everyone working within the police, even volunteers, should now know and follow the guidelines.

3. Complaints Investigations: The Role of the Independent Police Complaints Commission (IPCC) and government

The IPCC amended its mandatory referral criteria in response to HMICFRS’ January 2017 report. HMICFRS was critical of the police’s failure to recognise the problem of abuse of position for a sexual purpose as a form of serious corruption. As a result, such cases were not referred to the IPCC, or not referred “without delay” as required.

It made two recommendations:

  1. Within three months, all forces should complete a retrospective review of allegations and consider referrals to the IPCC.
  2. Within three months, forces should establish effective procedures to identify all future allegations of abuse of authority for sexual gain as serious corruption matters and make appropriate referrals to the IPCC.

The IPCC also wrote to all chief constables in December 2016 raising the mandatory referral issue. And in January 2017 the IPCC wrote to all forces. It reminded them to review cases from the previous three years to decide if, given the clarified criteria, any cases should be referred to the IPCC.

It also asked for more information on closed cases that were not referred but should have been. HMICFRS says that all forces have now responded.

Government Involvement

The Home Office introduced changes to the Police (Complaints and Misconduct) (Amendment) Regulations 2017. Effective from 22 May 2017, the “serious corruption” definition explicitly includes police abuse of position for a sexual purpose or for the purpose of pursuing an improper emotional relationship. The IPCC operational advice note for April 2017 states that

This clarifies the existing position, that such behaviour is an example of serious corruption that must be referred to the IPCC.

In case there is any doubt, the note gives further guidance and examples of the abuse of authority for a sexual purpose. Now there should be no room for confusion. Police professional standards departments must refer this form of serious corruption straight to the IPCC. People like my client “Jean” should not have to wonder if their complaints are going to be brushed under the carpet by the police.

Action

HMICFRS wrote to all forces with their assessment. It says it will re-inspect forces next year and notes that:

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

I agree. For every police force, at all levels, there are no more excuses.

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

 

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

Photo of Kevin Donoghue, solicitor, who considers if Simon Brodkin was wrongfully arrested for a breach of the peace.

Was Simon Brodkin wrongfully arrested for a breach of the peace? Kevin Donoghue looks at the evidence here.

By Kevin Donoghue, solicitor

It’s fair to say that Theresa May’s speech at the Conservative party conference last week was farcical. Not only did she suffer persistent coughing, but letters on the sign behind her fell off the wall, giving quick-witted viewers the chance to mock her with social media memes.

 

Perhaps most embarrassing was the prank by Simon Brodkin, also known as Lee Nelson. He presented Mrs May with a fake P45 (HMRC details of employee leaving work). As he handed it over to a confused and embarrassed Mrs May, he said, “Boris told me to give you this.”

After interrupting the Prime Minister, he turned to Foreign Secretary Boris Johnson, who was sitting in the front row with fellow cabinet members. Simon Brodkin gave Mr Johnson a “thumbs up”, saying, “Boris, job done.”

Conference security officers escorted Mr Brodkin from the hall. Chief Superintendent John O’Hare was in charge of security at the event. He confirmed what happened:

Earlier today a man was detained by conference security during the Prime Minister’s speech.

Officers attended and the man was arrested to prevent a breach of the peace and was released a short time later.

No doubt the incident was embarrassing for the Chief Superintendent too. Mr Brodkin “had legitimate accreditation” to the event after all. But there’s another issue: were the police right to arrest him for “a breach of the peace”?

The Law on Breach of the Peace

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

“A breach of the peace” refers to “a breach of the Queen’s peace”, and has its roots in the Justices of the Peace Act (1361). It is not a criminal offence in the sense that no conviction, fine, or imprisonment can directly come from the breach. Instead, magistrates have the power to issue a “bind over” for a limited time to prevent a further breach of the peace.

In R v Howell (1982) the Court of Appeal confirmed the elements of this “common law” concept. It is a situation where the behaviour of the person involved caused the arresting officer (or private citizen such as a conference security staff member) to believe that:

  1. A breach of the peace had or would occur, and that
  2. It related to harm which was actually done, or likely to be done, to a person, or in his/ her presence, their property.

The Court of Appeal went on to explain that officers (or private citizens) have the power to arrest without a warrant where:

  • A breach of the peace was committed in the presence of the person making the arrest
  • There was a threat of the breach of the peace being renewed, and
  • In cases where no breach of the peace had been committed, the person making the arrest reasonably and honestly believed that such a breach would be committed in the immediate future.

Considering the Simon Brodkin Case

Whether there was a breach of the peace in Simon Brodkin’s case depends on how a court would interpret these rules. To make a ruling the court would have to consider the:

  1. Circumstances (objective consideration), and
  2. Arresting officer’s (subjective) view.

Watch the footage of Mr Brodkin’s interaction with the Prime Minister and cabinet members below:

Was there harm, or the imminent threat of harm, to person or property? Was there a threat that a breach of the peace would be renewed or committed in the immediate future? If the police argued that Mr Brodkin had not acted unlawfully but that there was an imminent threat of a breach of the peace, could they say that there was

a sufficiently real and present threat to the peace to justify the extreme step of depriving of his liberty a citizen who is not at the time acting unlawfully.

(Foulkes v Merseyside Police (1998)

Some viewers might conclude that Mr Brodkin does not appear to do any acts which cause, or are likely to cause, harm. Others may say that the fact that:

-he got so close to the PM and cabinet, and

-was able to interact with them in such a high-profile setting,

created a reasonable belief for security staff and police that a breach of the peace occurred.

Continued Detention for Breach of the Peace

Police often claim a breach of the peace to break up violent, or potentially violent, situations. Once they are satisfied that the peace has been restored justification for holding those involved no longer exists.

This matters because, even if the breach of the peace arrest was lawful, the police must justify continuing detention on a “minute by minute” basis. Failing to do so can result in compensation awards.

Chief Superintendent O’Hare said that Simon Brodkin was released “a short time later”.

But, as this footage showsMr Brodkin was handcuffed, calm and co-operative as the police escorted him out of the venue. They put him in a police van, presumably to go to a police station. Was that necessary given that Mr Brodkin was no longer in the conference hall and could not renew the breach of the peace? And, if they went to a police station, were the police justified in detaining him there, even for “a short time”?

Consequences for Mr Brodkin (a.k.a. Lee Nelson)

I don’t know if Mr Brodkin intends to take action against the police. It looks like he has an arguable case, but I can’t comment further without knowing all the facts.

If he does decide to claim compensation, Mr Brodkin should be aware that police routinely fight compensation claims. It may take a trial at court to determine if his arrest and detention were lawful.

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

But he was arrested.

Some employers and regulators like the Solicitors Regulation Authority make you report arrests. And, if he was formally processed at a police station, the police now hold his photographs, fingerprints, and DNA records. They will keep his records on police computers unless Mr Brodkin proves the arrest was unlawful. Even then, as I explained here, in the case of custody photographs, he would have to apply to remove them.

Arrests for a breach of the peace can be life-changing. It matters that the police get them right.

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

 

What Happened at a Private Dinner Hosted by Liverpool Law Society

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

Kevin Donoghue, solicitor.

By Kevin Donoghue, solicitor

On Wednesday evening I attended a private Dinner for Managing Partners in Liverpool. Liverpool Law Society President, John Ballam, and his fellow officers, hosted the event. Attendees included representatives from solicitors’ firms of all sizes. Bankers, consultants, and others who support the legal profession also came along. As well as an excellent dinner, this is what we got out of it.

Why I went to the dinner

I wear many hats in my role as Director of Donoghue Solicitors. I am lucky to get to:
  • Represent clients and supervise my colleagues in their roles.
  • Be responsible for the growth and management of my firm, and promote it through networking, media, and other ways where possible.
  • Help and support the legal profession and wider society.
The day-to-day duties that come with practising law, and running my practice, are a full-time job in themselves. So, I find time out-of-hours and at weekends for other things, such as Wednesday’s dinner.
I am not alone.
At my table I talked with Alison Lobb, the former President of Liverpool Law Society. She worked hard during her year as President by attending many events nationwide in an official capacity. I suspect she has some good tips on juggling commitments for Nina Ferris, next year’s President.

Purpose of Meeting

One of the reasons for the dinner was to talk about Liverpool Law Society broadly. The Society has over 2,200 members in practice, and is one of the largest local Law Societies in England and Wales.
 
The legal environment is changing quickly. We discussed things like:
  • What is Liverpool Law Society there for?
  • What more can it do to help members?
  • How can it stay relevant?
One area we focused on was training. 

Training Challenge

Everyone agreed that the legal training offered by Liverpool Law Society is excellent. Its pull means that leading experts in every field come to Liverpool to train members. These include Kerry Underwood, Helen Swaffield, and Dominic Regan.
 
But recently there has been a big change which affects training providers like Liverpool Law Society. Solicitors have moved from a points-based system of Continuing Professional Development to the new “Competency Standard”. This means that lawyers have more flexibility in how they keep up-to-date with the law and enhance their knowledge. The challenge for training providers is how to keep members coming to courses, conferences etc.. Everyone had comments and ideas.

What Next for Liverpool Law Society?

 
The dinner ran late into the evening. It was well worth it. The Society’s officers heard plenty of ideas which they will take to the General Committee. I was encouraged by the enthusiasm and creativity expressed by the group. Because the attendees were both business-owners and lawyers everyone had valuable input. The Society was formed 190 years ago. With the help of events like Wednesday’s dinner, it will see many more.
 
Kevin Donoghue is the Solicitor Director of Donoghue Solicitors. Contact him here.

A Solicitor’s Calling

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

Kevin Donoghue discusses a solicitor’s calling here.

By Kevin Donoghue, solicitor

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

 a profession or career which someone is strongly attracted to, especially one which involves helping other people.

This is a useful definition because it shows the relationship between the calling’s:

  1. Attraction to the individual
  2. Benefit to society.

There are 181,982 solicitors on the roll. Nearly 140,000 are practising. Many more have retired or left the profession. If you asked them why they were called to practise law you would get a different answer from everyone. But the common themes above would come up.

Professional principles

As solicitors, we promise to fearlessly represent our clients and uphold the rule of law. Our regulator, the Solicitors Regulation Authority, includes this in the profession’s Principles:

SRA Principles

These are mandatory Principles which apply to all.

You must:

  1. uphold the rule of law and the proper administration of justice;
  2. act with integrity;
  3. not allow your independence to be compromised;
  4. act in the best interests of each client;
  5. provide a proper standard of service to your clients;
  6. behave in a way that maintains the trust the public places in you and in the provision of legal services;
  7. comply with your legal and regulatory obligations and deal with your regulators and ombudsmen in an open, timely and co-operative manner;
  8. run your business or carry out your role in the business effectively and in accordance with proper governance and sound financial and risk management principles;
  9. run your business or carry out your role in the business in a way that encourages equality of opportunity and respect for diversity; and
  10. protect client money and assets.

The SRA says that the Principles:

embody the key ethical requirements on firms and individuals who are involved in the provision of legal services.

Think about the Principles in the context of a “calling”. Do they meet the two-part relationship I mentioned above? The SRA’s emphasis is on the benefit to society. Clients, and the wider public, come first. The attraction to the individual solicitor isn’t mentioned. So, should we define the legal profession as a “calling”?

Calling to practise law

Working in the law is the only job I ever wanted to do. I joined a law firm straight from school. While there I studied, and passed, my CILEx exams, becoming a chartered legal executive. I continued my training and qualified as a solicitor 10 years ago this week. Nearly seven years ago I set up my firm. We have thrived in a competitive market by fighting hard for our clients to get the justice they deserve.

This explains the continuing attraction of the legal profession to me. Practising law isn’t just a job. It’s personal. Looking back on my career in the law, I take immense pride in the progress my team and I have made. More than anything I love helping our clients win their cases. My colleagues at Donoghue Solicitors share this passion. Helping them do their job and meet their career ambitions is hugely rewarding.

This draw, coupled with the benefit to our clients and my team, makes the law a true calling to me.

How can solicitors fulfil their calling?

As well as the direct benefit to our clients, solicitors like me also help society broadly. We do this in three ways:

1. Upholding the rule of law

I help people who have suffered through no fault of their own. Some, like Paul Smith, were victims of police brutality. Others, like Nigel Lang, experienced life-changing consequences after police failures.

What matters to them, and me, is justice. It’s important that my clients

  • Hold the police to account
  • Are heard
  • Win compensation for their losses.

Helping innocent victims achieve justice helps society too. In a civil society, upholding the rule of law is essential. Without it there would be anarchy. Succeeding in claims for civil wrongs, especially against powerful and well-resourced defendants such as the police and insurers, shows that justice through the legal system is accessible and can be achieved.

2. Publicity

Another way we help is when clients agree to publicity. This is their way of keeping the social contract. By publicising their cases, clients hope to

  1. Raise awareness
  2. Try to make sure that no one else suffers like they did.

I help with this at no cost to my clients. For example:

  • James Parry is a solicitor. He won £9,000 compensation from Merseyside Police. He wanted to get the word out that he had been wrongfully arrested. I prepared a press release and contacted his local newspaper, the Liverpool Echo. I also contacted the Law Society Gazette, the trade magazine for solicitors. With my help they reported on the case. The publicity helped restore the reputation of both Mr Parry and the legal profession. It also brought attention to the issue of false arrests at voluntary interviews.
  • Nigel Lang won £60,000 compensation for false imprisonment and other losses. He had been wrongfully arrested on suspicion of possessing indecent images of children. I arranged for Buzzfeed News to work on a detailed story with him. The publicity from that story led to a BBC tv appearance which raised awareness of the consequences of the police’s failures. Nigel also got an assurance from the police that they had changed their practices to prevent it happening to anyone else.

    3. Activism

I am on the front-lines as a practising solicitor. I see the

  • Devastating impact legal aid cuts have had on people seeking justice. (This is one reason why we represent people under “no win no fee” agreements where appropriate. Most people are not eligible for legal aid in civil compensation claims, including actions against the police.)
  • Courts service stretched to breaking point, despite innocent claimants paying up to £10,000 in court fees to bring compensation claims.
  • Impact of lobbying by special interests, especially police federations which have pushed for the roll-out of (potentially deadly) spit hoods. (This is despite criticism from The Hepatitis C Trust, which said that hepatitis C and HIV cannot be transmitted by spitting. To suggest otherwise is “hugely damaging” and “Such falsehoods also cause unnecessary alarm to police staff,” the Trust said.)

My calling as a solicitor means standing up for the “little guy”. This means devoting time to activism. Among other things, I

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

Appeal

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

 

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