In a short period of time, coronavirus (Covid-19) has upended the country, caused devastating losses, and impacted our working lives. The government issued a “stay at home” order on 23 March 2020 to help slow the spread of infection and support the NHS. It has three parts:
Requiring people to stay at home, except for very limited purposes
Closing non-essential shops and community spaces
Stopping all gatherings of more than two people in public.
The order will be reviewed in three weeks, but it might be extended. I expect it will.
Adapting to the Stay at Home Order
This is how Donoghue Solicitors has adapted and the steps I have taken to look after clients and staff:
Because we specialise in compensation claims, Donoghue Solicitors is not considered an exception to the second point (above). So, our offices are temporarily closed.
Donoghue Solicitors has invested heavily in IT and infrastructure to enable remote work. I anticipated a “work from home” order and prepared as follows:
I bought staff fast, new, laptops in advance of the lockdown. I got software installed and paid for licences to enable remote working.
The new equipment means that my team can connect remotely to our dedicated servers to:
work on our clients’ cases, and
review enquiries for legal help.
We are also using video conferencing and other secure systems to maintain contact and work together.
I have put systems in place to handle new enquiries by phone and website. As before the shutdown, requests for legal help are taken by members of our new enquiries team. Every enquiry we receive gets full consideration by a qualified lawyer and a response. It might take a little longer due to us working remotely, but the process is the same as before the lockdown.
Calls to our offices are diverted to the remote working team. Our lawyers continue to make and receive calls with clients and others. I would ask people to be patient if they do not get straight through and use email or our website contact form where possible. Client emails and website enquiries are getting through to us without difficulty.
I am monitoring website enquiries and social media. I am available if anyone has any problems getting in touch. Feel free to reach out on our twitter, Facebook, and LinkedIn accounts.
Why We are Reducing the Risk of Covid-19 Infection
I hope that setting up remote working and taking these steps will reduce the risk of covid-19 coronavirus infection to staff, clients, and other visitors to our offices. It should help lessen the burden on the NHS and other front-line workers. And, by staying at home and practising social distancing, my team will stay healthy and on the job.
All of us hope that these stay at home measures will be temporary, and that we can soon get back to working in the office. Practising law is a team effort, and best done when we’re together. But, in the meantime, the lawyers at Donoghue Solicitors are using technology to adapt to the new and difficult circumstances in which we all find ourselves.
Kevin Donoghue, solicitor director of Donoghue Solicitors, explains how his firm is dealing with coronavirus.By Kevin Donoghue, Solicitor Director of Donoghue Solicitors
In light of the Coronavirus outbreak, I would like to reassure you that we are closely monitoring the spread of the virus and taking precautionary actions.
We have put measures in place to limit the impact on our clients while reducing the risk of infection and transmission. These include:
not meeting clients face-to-face in the office or at their homes for the foreseeable future. As usual, we are available to meet virtually by Skype, Facetime, and Google hangouts. We will also keep in touch by phone, email, and post. (Any disability requirements can be addressed. Contact us if this temporary restriction impacts you.)
remote access capabilities, alternate work locations for employees if required, and continuity plans for critical operations.
all staff have been advised on prevention measures as recommended by the government. These include sanitising workspaces, following handwashing guidelines, and avoiding touching eyes, nose, or mouth. They are under strict instructions to stay home if they feel unwell and to contact the NHS for advice.
While it is impossible for anyone to predict the spread of the coronavirus and fully understand its impact, it does not alter our focus on continuing to serve you as well as possible. We have the people, technology, and tools to do just that.
On a personal note, I hope everyone stays safe and well in these unsettling times. My focus is the safety and well-being of our clients, employees and the communities we serve, and my thoughts are with those who have been impacted.
Please do not hesitate to contact me if you have any questions.
ITV is showing a documentary at 10:45pm tonight (Tuesday 15 October) about sexual abuse by police officers. I urge you to watch “Exposure: Predator Police Uncovered”.
The documentary will shine a light on the widespread issue of sexual abuse by police officers of female victims of crime. The programme-makers report that:
a police or community support officer is convicted or dismissed for sexual misconduct every five days in England and Wales.
between April- October 2018, police officers were seven times more likely than doctors or teachers to be dismissed for sexual misconduct.
This is despite officers being bound by strict rules about police abuse of position for a sexual purpose, 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.”
Vetting Failure Enables Sexual Abuse by Police
The definition above targets police officers and staff members. But they are not the only ones to look at.
Police forces are failing the public at an institutional level.Many do not properly vet police and support staff. This means that sexual predators are recruited and employed by the same institutions tasked with defending the public against these criminals.
Zoe Billingham, of HM Inspectorate of Constabulary and Fire and Rescue Services, explains in the video clip below that
choose their victims carefully. Vulnerable people, such as victims of domestic abuse and young people, make for easy targets. The documentary-makers found that about ¾ of victims on their research would be considered vulnerable.
use the considerable resources of their organisations to pursue their victims. This includes access to police national computer databases, use of police vehicles, home visits in uniform etc.
apply grooming techniques, such as manipulation, coercion, threats etc. to persuade victims to agree to sexual contact and/ or cover it up.
The consequences of sexual abuse by police officers are often devastating. As I explained here, victims can suffer long-term psychological damage as a result.
This criminal misconduct is made worse by police officers failing to listen to victims and adopting a siege mentality. Often, they will go to great lengths to avoid seeing what is right in front of their eyes. The police will defend, deny, and deflect rather than deal with a sexual predator in their ranks. In the two years to March 2016 fewer than half of (48%) of all the police abuse of authority for sexual gain cases it identified were reported to the Independent Police Complaints Commission (now Independent Office for Police Conduct) for an independent investigation.
Convictions, publicity, and official reports from HMIC show that police officers at all levels have been aware of the issue of police sexual predators for years. And yet the problem continues. I hope tonight’s documentary will change that and spur action.
Today I had to do something I did not want to do. I told a potential client that I could not help him bring a seemingly good claim on the merits.
This is why.
What Crown Prosecutors Say Happened
In 2008 Richard Diaper was just 17 years old when he was brutally assaulted with a baseball bat at a garage in Tonypandy, Rhondda, South Wales. His attackers repeatedly struck Richard to the head while he was getting cash.
Richard suffered nasty injuries and reported the attack to South Wales Police. Detective Constable Marc Hopkins investigated it. The police arrested five men on suspicion of serious assault. It appeared they mistook Richard for someone else.
Richard also got a phone call from someone claiming to be from the Manchester drugs underworld offering him £3,000 to drop his statement. He reported this to the police too.
Most unusually, DC Hopkins went to Richard’s home while off-duty. He advised the 17-year-old to take the money and withdraw his statement.
Richard felt intimidated by the senior police officer. Mr Diaper felt like he had no choice and did as he was told. DC Hopkins countersigned a form to end the investigation. The case against the five men collapsed.
Six years later the police contacted Mr Diaper about DC Hopkins’ handling of the investigation. Professional Standards Department investigators said that it was alleged DC Hopkins took a bribe to get Richard to withdraw his statement. Richard was shocked and upset. Richard, his mother, and a friend all co-operated with the investigation and prosecution.
DC Hopkins denied the allegations and the case went to Cardiff Crown Court for a jury trial.
Crown Court Trial
DC Hopkins claimed that the allegations against him were false. He said that his (now ex-) wife, Tina Burton, reported him to the police “out of pure malice” after their marriage ended badly.
Ms Burton gave evidence that the owner of the garage where Richard was assaulted was a friend of one of DC Hopkins’ colleagues.
She said this officer told DC Hopkins that there would be a substantial amount of money for them if Richard withdrew his statement. Ms Burton reported that DC Hopkins later came home with a “wad of cash”. (The jury was told DC Hopkins was paid £5,000.)
After a trial the jury found the South Wales Police officer guilty of perverting the court of justice. Recorder Eleri Rees sentenced Hopkins to four years in prison. He said,
“You had an unblemished record as a police officer. And that makes it all the more astonishing you were corrupted in this way. Your actions were cynical and motivated by greed and you have shown little remorse.”
And the Assistant Chief Constable of South Wales Police described DC Hopkins’ conduct as
“This matter has undoubtedly brought the police service and specifically South Wales Police into disrepute with our communities.”
Legal Assessment of this Police Corruption Case
I’m not exaggerating when I say that civil actions against the police are among the hardest legal cases to win. The deck is stacked against innocent victims of police corruption. They have to fight an arm of the State, the most well-funded and motivated defendant there is. Cases can take years. There are no guarantees of success.
Despite this, I have a proven record against the police, especially South Wales Police. Richard contacted me because I have nearly two decades’ experience in this niche area of law. He wanted an honest, realistic appraisal of his case.
To the inexperienced, his case appears straightforward. A criminal conviction for perverting the course of justice is compelling evidence of wrongdoing.
Not so fast.
When I looked at Richard’s case I noted the positives, such as the officer’s criminal conviction, but also the negatives.
These included the effects of the limitation period, which prevents claimants from issuing proceedings out-of-time. In Mr Diaper’s case my assessment went like this:
I considered his potential losses and causes of action. It appeared that Richard could sue the Chief Constable of South Wales Police for the acts or omissions of his officer, DC Hopkins. Richard could potentially bring a civil action against the Chief Constable for the tort of misfeasance in public office.
I then moved on to deal with the issue of delay.
The incident giving rise to a potential claim happened in 2008, when Richard was just 17. Because he was not yet an adult at that time, the courts would allow six years from Mr Diaper’s 18th birthday for the limitation “clock” to expire.
So it appeared Mr Diaper, who turned 24 in 2015, contacted me four years too late. But some civil claims against the police benefit from time-limit flexibility under the Limitation Acts. Could Richard use them to apply for relief?
Sadly, in my opinion, no. Unlike say, the three-year personal injury time limit, the six-year time limit which applies to misfeasance in public office claims cannot be extended.
So a claim against South Wales Police was bound to fail due to the delay.
Richard would not succeed there either, even though he was seriously injured. This is because
1. he failed to support the prosecution, and
2. is considerably out of time. (There is a two-year time limit on CICA claims.)
Richard kindly agreed to me bringing attention to his situation in the hope that it will help others.
He is understandably disappointed. I am too. I work hard to help victims of police corruption get the justice they deserve. The delay means that a South Wales Police officer’s misconduct will go unpunished.
I have seen the impact of qualification on my own career. I am a long-time practising lawyer and Chartered Legal Executive too. Clients, other lawyers, and colleagues respect the title. I expected that, as would most newly-qualified lawyers. But here are five things you might not know about practising law as a Chartered Legal Executive:
1 The work doesn’t stop when you qualify
I am a civil litigator and specialise in the niche area of actions against the police. My work involves many overlapping areas, including tort, human rights, European law etc. It is ever-changing. I spend a lot of time keeping up-to-date with the law, discussing it with colleagues, and sharing our collective knowledge. You never stop learning in this job. Lawyers must have an unquenchable thirst for the law to represent clients effectively. I spend a lot of time outside work hours reading and thinking about what I have learned or experienced in the office. This helps me progress cases, even when I am not at work. Some of my best “a-ha” moments come to me while training for half-marathons. In this uninterrupted time I digest new information and apply it to my cases.
2 Get used to public attacks
In Shakespeare’s Henry VI, Dick the Butcher said:
The first thing we do, let’s kill all the lawyers.
Successive governments have attacked lawyers, especially those working in civil law. Politicians talk of the non-existent “compensation culture” to sway public opinion. I have never seen a lawyer chase an ambulance, but that’s what we’re falsely accused of doing.
Lawmakers use “ambulance chasers”, “fat cats”, and other epithets to convince the public that we are the bad guys. Other qualified professionals don’t deal with these childish attacks. So, why are we singled out? It’s because demeaning lawyers gives politicians cover in the media. This allows them to cut legal aid, erode civil liberties, and introduce drastic changes to the civil compensation system. Politicians’ wealthy donors and insurers have profited by their actions. The public has not.
Shakespeare wrote his famous line in 1591. More than 400 years’ later we’re still here. Why? Because we’re needed. Brush off the brickbats. Instead:
3 Embrace your role as protector
Like every job, there are good days and bad days. But the law isn’t any job. It is a calling. A vocation. The CILEx oath says:
I promise to discharge diligently my duties and responsibilities as a Chartered Legal Executive. I will protect my independence as a lawyer, uphold the Rule of Law, and act at all times with integrity. I will justify the confidence and trust that is placed in me by my clients, the courts, the public and by my profession.
There’s a lot to unpack here. A key aspect is how Chartered Legal Executives protect and uphold “the Rule of Law”.
The Rule of Law is an ancient principle, attributed to Aristotle. It is defined by the Oxford English Dictionary as
“The authority and influence of law in society, especially when viewed as a constraint on individual and institutional behaviour; (hence) the principle whereby all members of a society (including those in government) are considered equally subject to publicly disclosed legal codes and processes.”
In effect, the Rule means that no one is above the law. This includes representatives of the State such as lawmakers, the judiciary, and police.
To me, and many legal executives, upholding the Rule of Law means protecting citizen’s rights. In my work, this duty can involve:
helping clients claim compensation. This application of tort law involves putting them in the pre-civil wrong position, so far as possible.
public vindication. This may include getting a judgment in open court with a finding of civil liability.
seeking a declaration of breach of human rights.
As mentioned in 2. above, politicians will not protect us when they have competing interests. (Ironically, many are lawyers, who have also sworn to protect the Rule of Law. I know the Rule means different things to different people, but the mental contortions involved for some of them must be exhausting.)
And often, in the experience of many of my clients, the police will not protect them. Police are an arm of the State, and subject to the same Rule of Law as the rest of us.
The public has no such protectors other than lawyers.
This imbalance means that, as many of my firm’s clients know, some in the police abuse their rights with impunity. For example, my client Paul Rogers was wrongfully arrested by Merseyside Police. The police searched his home and unlawfully detained Mr Rogers despite credible information that they had arrested the wrong person. Officers took Paul’s biometric data, photo, and fingerprints for their records. They only released Mr Rogers when they realised their mistake, nearly 12 ½ hours later.
Despite this, the police offered no apology or compensation for Paul’s harrowing ordeal. He instructed Donoghue Solicitors to sue Merseyside Police. We acted on a “no win no fee” basis. With my help Paul got £5,000 compensation and his biometric and other data destroyed.
Paul protected his rights with his lawyer’s help. Together, we also showed Merseyside Police that this misconduct would not go unpunished.
4 Choose your clients carefully
No one can say precisely how long a case will take at the outset. Lawyers guesstimate based on their experience. But that’s all. We don’t know
how co-operative and engaged our own clients will be
how opponents will react
how the case will play out
what court time is available
Legal cases, like people, come in all shapes and sizes. This means that when you take on a new case, you should be prepared for the long haul. Legal executives are people like everyone else. We work best with clients we know, like, and trust. That makes the matter of taking on a new client a personal as well as professional one.
For example, I recently settled a long-running case for my clients Steve and Sharon Rogers (names given with their kind permission). We got on well from the beginning. They were perfect clients:
respectful of my time and other client responsibilities
flexible, and above all,
genuine and trustworthy.
I believed in them and their case. I was prepared to run their case to trial, risking thousands of my firm’s costs because we acted on a no win no fee basis. But it didn’t come to that and we settled out of court. Still, their case took years, and we spent many hours working on it. Without our relationship, a case which was a pleasure to work on would have been a hard slog. The feeling was mutual. This is what they said on Facebook:
We can’t thank Daniel Fitzsimmons enough. Thank you for being by our sides and sticking with our case for over 4 and a half years. You’ve been there for us whenever we have needed you. Words cannot explain how happy we are with the result. A 5* solicitors from beginning to end. We are eternally grateful. Steve and Sharon Rogers
5 The work is the reward
My comments above may make the choice to make a career as a Chartered Legal Executive a strange one. There will be long nights, stress, and critical public attacks in the media. But there is also a deep sense of satisfaction which can come only from practising law.
For example, this week I settled a case for a client who had been falsely imprisoned by the police. They had executed an IP address search looking for a child pornographer. The police wrongly identified my client and arrested him at work. They accused him of extremely serious and damaging criminal offences. Officers raided his home, terrifying his partner. The police detained my client in a cell for over four hours before admitting their error. He suffered anxiety and an adjustment disorder, as well as damage to his reputation.
With my help my client sued the police. Together we got him
a full apology
a promise to learn lessons from the bungled mission
In short: justice– a reward for my client, me, and the wider public.
Kemmi Alfa is a Chartered Legal Executive at Donoghue Solicitors.
Learning to be a Chartered Legal Executive
I am sure that my colleague Kemmi Alfa will make an excellent Chartered Legal Executive. We are all very proud of her. But, as I hope I have made clear, qualifying is just the beginning. In legal practice, the learning never ends.
Daniel Fitzsimmons is a Chartered Legal Executive at Donoghue Solicitors. Contact him here.
Daniel Fitzsimmons, Chartered Legal Executive, asks if the police have double standards here.
By Daniel Fitzsimmons, Chartered Legal Executive
Knife crime is a serious problem. The police are right to highlight this and seek harsh punishment for offenders. But what about when it involves one of their own? Then, as two of my clients have found, things aren’t quite so straightforward. Read on and ask yourself if the police’s conduct reveals double standards.
I represent “John” and “Sarah” (names changed as their case is ongoing), a married couple. One night they got into a petty argument. Voices were raised. Their daughter got scared and called the police.
Officers came to the family’s home and demanded that John let them in. He refused, believing that the police had no right of access.
But the police insisted. (I understand that the officers claim they were relying on s.17 Police and Criminal Evidence Act. They argue that they were “saving life or limb or preventing serious damage to property”. But, in my opinion, this legal basis doesn’t fit the facts, so making what happened next unlawful.)
The police forced their way into the house, wrestling John to the ground. He continued to protest and resist, sure that he had done nothing wrong and that the police had no right to be in his home. After a struggle officers arrested and handcuffed John, injuring him in the process. They took him to a police car and drove John to the police station. John was “booked in” and, to his amazement, told he was being held for assaulting a police officer in the execution of his duty. In interview John insisted that he had done no such thing. The police charged and bailed him. John pleaded not guilty. His case went all the way to trial, where he was acquitted.
John knew that the police’s case was unfounded, and that the prosecution was wrong. He was sure he had the right to defend himself. John felt mistreated and contacted me because my firm specialises in helping people with civil actions against the police.
John told me his story. I listened as he explained that not only had the police forced their way into his home, but that they had injured him during arrest. He described deep, sharp, cuts to his arms which needed medical treatment. He saw his GP the day after the arrest and told the doctor what had happened. John’s GP didn’t think the cuts were from handcuffs: he thought they were from a bladed object.
A couple of days after the incident the family came across a multi-tool, or “Swiss army”, knife in their home.
It wasn’t theirs.
It had a name engraved on the back.
It was one of the police officers.
Police Professional Standards Department Involvement
Recently, I spoke with an investigator at the police force’s Professional Standards Department. This police officer’s job is to impartially investigate the complaint. At the end of the investigation he should prepare a report showing his findings and recommendations. Police officers may be cleared of any wrongdoing at the end of this process. If not, and depending on the circumstances, proposals for how to deal with any adverse findings can include
“management action”, a form of advice and guidance which is designed to deal with misconduct in a timely, proportionate, and effective way.
formal misconduct proceedings and, in rare cases,
Professional Standards investigators have a crucial role in maintaining public confidence. They “police the police”.
Sadly, I do not have confidence in the way this investigator is handling John and Sarah’s complaint because:
He has sought to deal with their complaint by way of “local resolution”.
He knew about the multi-tool knife and tried to get it back.
1. Local resolution
Local resolution is the least formal process for dealing with police complaints. It is unsuitable given the facts because it cannot result in misconduct or criminal proceedings.
John and Sarah’s case is unusual in that it is not a “he said, she said” case, where police officers normally have the advantage. The facts have already been tested in a criminal court. John was cleared of the serious charge of assaulting a police officer after reviewing sworn evidence from both sides.
But questions remain about whether the police acted improperly by
forcing their way into his home,
helping prosecute him.
These issues alone merit a more formal investigation.
2. “Swiss army” (multi-tool) knife
The investigator was aware that an officer’s Swiss army (multi-tool) knife had been left at the family’s home. He also knew from the police complaint that John alleged he had been cut during the arrest. The multi-tool device left at John and Sarah’s home is a “Gerber Dime”. This is it:
This is the multi-tool found at our client’s home following a police visit.
As you can see from this youtube video, it’s a versatile tool which has two blades; a regular “fine edge” blade and a retail package opener:
Now look at these photographs of John’s arms.
Photo of our client’s forearm (used with his kind permission). Note where the cuts appear.
Deep, straight line cut to our client’s wrist.
Was his GP right in thinking that the cuts were caused by a bladed object? Did one of the multi-tool’s knife blades cause John’s wounds?
John suffered multiple cuts consistent with knife wounds,
these included a cut high up his forearm (shown in the first photograph), and
the officer’s multi-tool was found at the couple’s home
what other rational explanation is there for how John was injured?
If the police officer used the knife blade to assault John during the arrest, he could be facing serious misconduct and criminal charges.
Even if that is not proven, is it right that a police officer should take a multi-tool to a domestic house call? They are not standard kit for police officers. Why would the officer think it was appropriate to “go equipped” on the job?
I told the PSD investigator about my concerns and that this matter is not suitable for local resolution.
Are police double standards exposed if an officer uses a multi-tool knife like this during an arrest?
Double Standards Exposed?
He then raised another troubling issue.
The investigator asked if my client would return the multi-tool knife as the officer wanted it. I couldn’t believe what I was hearing. The investigator knew that the multi-tool knife had been left at (what a court may later decide) was a crime scene. But, instead of
stressing the serious nature of the matter, and
advising that it was a crucial piece of evidence which the department would keep,
the investigator simply said that the officer wanted it back.
Does this reveal double standards in how the force deals with police complaints? Look at it this way: if it was alleged that my client had used a multi-tool knife on an officer he would not get it back before the conclusion of criminal proceedings. And the charges he faced would be more serious than those John fought at court, in which the prosecution claimed he assaulted a police officer in the execution of his duty. That alone is “aggravated” assault and can result in six month’s jail time and a hefty fine. Using a knife would have led to more serious charges and made a possible conviction far worse.
Is it right that the police’s investigator tried to recover this crucial piece of evidence and return it to his colleague?
I told the investigator that I had the knife and would keep hold of it. In doing so, I am fulfilling my legal duty to preserve evidence. I am worried that this crucial piece of evidence might mysteriously disappear if I returned it now.
And, given what I now know, I am not confident this complaint against the police will be fairly investigated. As I see it, the police’s double standards have been exposed. My clients know my views and are prepared to bring civil court proceedings if justified and necessary. We await the outcome of the Professional Standards Department’s investigation with interest.
Daniel Fitzsimmons is a Chartered Legal Executive who specialises in civil actions against the police. Contact him here.
Jack Hudson looks at the likely effects of the Civil Liability Act.
By Jack Hudson, LLB (Hons), litigation executive at Donoghue Solicitors
I recently settled a claim for my client Greg Barber. (Greg has kindly given his permission for me to use his details.)
Mr Barber’s case highlights the positive impact of legal representation. This is something which many motorists will lose next year when the Civil Liability Act comes into force. Read on to find out how.
Greg was driving his car on the main road when another driver pulled out of a side road and hit it. Mr Barber suffered an injury to his neck and shoulder. At first, he thought it was “whiplash”. His car was also damaged. Both drivers exchanged details at the accident scene.
Greg instructed Donoghue Solicitors to help because we specialise in accident claims. I submitted his claim to the other driver’s insurers. They dealt with Greg’s car, leaving me to help with his personal injury compensation claim and other expenses.
I arranged for a medical expert to examine Greg. Because Mr Barber instructed Donoghue Solicitors, he did not have to go to the trouble of
finding a suitable expert close to home,
arranging the appointment,
researching the Civil Procedure Rules to give the expert suitable instructions, or
paying for the report.
The doctor gave Greg a thorough examination. He confirmed Greg’s “whiplash” diagnosis. But the medical expert was also concerned that Mr Barber might have suffered a neck bone break and recommended an MRI scan.
This was a very worrying time. Mr Barber was in pain and concerned that things could be made worse by the possible break. I arranged for Greg to have the MRI scan at a private hospital, again at no cost to him. Thankfully, the scan confirmed “no traumatic pathology”. (In layman’s terms, Greg had not broken his neck.) But he still needed physical therapy to help his whiplash symptoms.
Again, at no direct cost to him, I arranged for Greg to get ten sessions of private physiotherapy. This helped him recover from neck pain more quickly than if he had not had the treatment. It was good for Greg and the paying insurers.
Despite the treatment Greg did not recover as the medical expert specialist expected. I arranged for a report from the physiotherapist and sent it to the doctor. The medical expert agreed to extend the prognosis period to cover the extra recovery period. Greg’s total recovery period was just less than a year.
Armed with this information I negotiated settlement of Greg’s claim. Using my specialist legal knowledge and expertise I helped him get £3,200 for his road accident claim. This was an excellent settlement based on the medical evidence. I also made sure that the insurers paid all associated expenses. These included the cost of the MRI scan and private physiotherapy.
Greg did not have to pay for my services up front as we acted under a “no win no fee” agreement.
How the Civil Liability Act Will Change Things for Motorists
The Civil Liability Act became law on 20 December 2018. (You can read it here.) Among other things it drastically changes the procedure for “whiplash” claims. The Act defines whiplash broadly, saying it is:
“an injury of soft tissue in the neck, back or shoulder that is…a sprain, strain, tear, rupture or lesser damage of a muscle, tendon or ligament in the neck, back or shoulder, or an injury of soft tissue associated with a muscle, tendon or ligament in the neck, back or shoulder”.
The expected start date of the new regime for motorists suffering whiplash injuries is April 2020. From then, injuries like this which last less than two years will be valued using a tariff system in most road traffic accident cases. The government has not published the tariff, so we do not know how it compares to the current system, which is based on the Judicial College Guidelines and established case law. Instead the Act says:
(2) The amount of damages for pain, suffering and loss of amenity payable in respect of the whiplash injury or injuries, taken together, is to be an amount specified in regulations made by the Lord Chancellor.
Another effect of the Civil Liability Act is that legal costs will not be payable. This forces motorists to bring claims themselves unless they want to pay privately for expert help. Instead, motorists in eligible cases will submit details of their claims as “litigants in person” using an “online portal”.
It seems that the true purpose of the Civil Liability Act is to make it harder for claimants to seek compensation. If that point isn’t crystal clear, the Conservative government also plans to raise the small claims track limit in April 2020. The increase will apply to claims worth less than £5,000 in road traffic accidents, and £2,000 in other personal injury matters. This will prevent innocent claimants from recovering legal fees from their opponents in many other genuine cases.
What would happen to Greg’s claim after the Civil Liability Act came into force?
Greg Barber would have found things very different if he had his accident after April 2020, the expected start date of the new claims regime.
He would have to deal with everything himself unless he was willing and able to pay a solicitor (or claims manager) to deal with his claim.
have to research how to bring a road traffic accident claim,
need access to a fast, reliable internet connection to access the claims portal, and
learn how to use the new system to claim compensation.
As anyone who has ever dealt with government knows, things are rarely easy or trouble-free. The current online claims portal system lawyers use to help people bring compensation claims had a difficult birth. It was introduced in 2010 but was delayed for months. When it eventually started the portal had many difficulties. It still gives experienced lawyers headaches, especially when describing liability and causes of action in strict legal terms. (There can be serious consequences if you get it wrong.) There’s no reason to think that the new portal system will roll-out smoothly, or that it will be easy to use for the inexperienced. And it is likely that Greg would have to navigate Medco, which is a separate online system, to get his medical report.
The tariff system could be problematic too. As I mentioned above, it is focused on soft-tissue “whiplash” injuries. But what about investigations into Greg’s neck injury? At one point he thought he might have broken his neck. Thankfully, an MRI scan confirmed that wasn’t the case. But it was still worrying and needed to be investigated. The new system would allow for a medical examination. But without a lawyer fighting his corner Greg might have had his neck concerns dismissed by the doctor.
Also, the new Act is full of confusing language, especially when considering multiple injuries. If Greg had suffered more than just whiplash some, or all, of his claim may have been excluded from the Civil Liability Act system completely. (Legal experts are debating this.) But how would he know without reading and correctly interpreting the Act?
All these issues could come up before Mr Barber even tries to settle his claim. In Greg’s case it is likely that the tariff system would apply because his whiplash injury lasted less than two years. We don’t know the amount of compensation he would get but, on the draft figures, it could be as much as £2,000 less for the same injury.
If Greg disagreed with the tariff valuation and wanted to contest it, he would have to argue his case before a judge in court. He would probably come up against a qualified barrister or solicitor paid by the insurers. He may back down and accept the offer when he realises this, deciding that it’s just not worth it.
Confidence in the Legal System
Greg Barber was unfortunate to have been involved in a road traffic accident. But he was lucky it happened before the Civil Liability Act 2018 came into force. This meant he could get expert representation to
independently protect his interests, and
make sure he got the maximum compensation for his claim.
Motorists after April 2020 may not be so lucky.
Innocent motorists like Greg do not go looking for accidents. They are injured and suffer loss, inconvenience, and stress through no fault of their own. They want to be put in the pre-accident position. This is their legal right under centuries-old tort law. And yet insurers and the government have crafted the Civil Liability Act to unfairly penalise them.
Insurers won when this Act passed. They will save money on compensation and legal fees. But the real cost of the Civil Liability Act will not be measured in insurance company profits. It will be in the public’s lack of confidence in the legal system. Without expert representation many will be put off from bringing a claim in the first place. Those that do may be confused by the online claims system. And for the lucky few that navigate their way through it they may end up under-settling their claims and/or get left with the nagging feeling that they’ve been had.
The effect of the Civil Liability Act is to emphasise the “inequality of arms” and undermine the rule of law.
Read on to find out why we’re shortlisted and what this means to us and our clients.
Donoghue Solicitors has been shortlisted for the Small Law Firm Award in the 2019 Liverpool Law Society Legal Awards.
Why Liverpool Law Society Legal Awards are Trusted
The bi-annual Liverpool Law Society Legal Awards are described as “celebrating legal excellence”.
An independent panel judges the Awards. Panel members come from the worlds of business, academia and the judiciary. Glenys Hunt, a non-practising past president of Liverpool Law Society, chaired this year’s panel. Members included:
Professor Warren Barr Head of Department at Liverpool Law School, University of Liverpool,
Ms Lesley Martin-Wright, Chief Executive of Knowsley Chamber of Commerce
His Honour Judge Graham Wood QC, the Designated Civil Judge for Cheshire and Merseyside.
Liverpool Law Society jealously protects the integrity of the Awards. No director of the Society or staff member gets involved in the judging of the Awards in any way. The Chair’s role is to assist and guide the Panel only. She does not have voting rights. The judging panel makes its decisions confidentially. Only the judging panel interviews the nominees. Directors or staff members of the Society are excluded.
Why Donoghue Solicitors is Shortlisted for Liverpool Law Society’s Small Law Firm Award
Donoghue Solicitors has been shortlisted in the Small Law Firm Award category. Competitors must be law firms with up to 30 locally-based staff (including non-fee- earning staff). The “local” area is large. It includes the city of Liverpool, and the Metropolitan Boroughs of Wirral, Knowsley, Sefton, Widnes, St Helens and Neston in the County of Cheshire.
Having met that definition, the judging panel then considered the following:
a firm that has made a significant contribution and/or brought reputational benefit to Liverpool and surrounding areas
evidence of attracting more than local work
a firm that represents “law at its best”
demonstrating a commitment to law as a business, run effectively while taking into account client care
training initiatives and accreditations received or being worked towards
client initiatives that have set the firm apart from the rest
contribution to the community including pro-bono work.
The judges decided that Donoghue Solicitors was one of only two firms which met these strict criteria.
Donoghue Solicitors was also shortlisted for the Boutique Law Firm Award in the 2019 Modern Law Awards.
Liverpool Law Society is delighted by the number of nominations received for the 2019 Legal Awards from individuals, teams and firms across the membership. The competition has been fierce, the independent judging panel have met and interviews have taken place. The judging panel said: “The quality, quantity and calibre of applications for this year’s Liverpool Law Society Legal Awards has been incredibly high, which reflects the strength and talent of our local legal community.
Liverpool Law Society President Chris Topping said:
I am very excited that the Legal Awards ceremony is now only a few weeks away, the announcement of the shortlist is always a significant moment in the build-up. I know that the evening will be a fantastic showcase for the excellent work of both individuals and firms who are members of Liverpool Law Society and I hope you will join with me in this celebration.
The awards ceremony will take place at Rum Warehouse, Stanley Dock, Liverpool on Friday, 17th May 2019. The BBC’s Roger Johnson is hosting. The local Law Society describe the black-tie event as “one of the highlights of the region’s legal profession’s calendar’s year”.
Why This Matters
I am thrilled that the judging panel recognised my team’s efforts. Their dedication and commitment to our clients impresses me every day. I look forward to taking my staff to the event as a “thank you” for all their hard work. This expert recognition also gives our clients confidence that they are working with a leading law firm, dedicated to putting their needs first and representing “the law at its best”.
Kevin Donoghue leads Donoghue Solicitors, a firm of compensation claims lawyers. Contact him here.
Last week I appeared on the BBC Three Counties’ JVS programme to talk about spit hoods. I’ve discussed spit hoods (which the police like to call “spit guards”) on tv and radio before. The discussions always take the same approach. The presenter discusses the issue of the day (this week it was the use of spit hoods on children) with a police officer (or pro-police advocate) and me, before inviting calls from the public and/or serving police officers. I’m there to provide “balance”. The discussions are rarely balanced though, and usually go something like this:
Police Officer: We just want to be safe in our work. Spit hoods help protect our hard-working police.
Presenter: I agree. Spitting is disgusting. I wouldn’t want to be spat at just for going to work. Would you want to be spat at Mr Donoghue?
Me: No. I agree that spitting is disgusting, but there’s more to it than that…
Presenter and police officer: (interrupting)…Spitting has no place in our society. Why are you defending these thugs? You’re wrong!Etc. etc.
Presenter: Let’s take some calls.
Member of the public/ police officer who has been told to call in: Spitting is disgusting! They get what they deserve.
As you can tell, arguments against the use of spit hoods get drowned out. This might be because of some fundamental misunderstandings about spit hoods. Here’s five things everyone (including those in the media) should know.
1. Spit hoods/ guards can kill or cause life-changing injuries
Common, misleading statements I hear when discussing “spit guards” are that
i. they are just “fabric” or “mesh”, and
ii. that people can breathe easily in them.
Neither of these things are true.
Spit hood designs vary. (I’ll come on to why there are different spit hood masks in use shortly.) Click here to see Damian Pettit, police commander for south Worcestershire, wearing one of his force’s spit hoods.
You can see that the main body of the spit hood is a mesh fabric. But the section in front of the mouth and nose is a plastic/ mesh “shield”.
The use of a plastic shield makes sense when you think about it. The hood isn’t there for effect: it’s purpose is to prevent the transmission of mucus and spit. How could a mere mesh fabric do that?
It makes more sense to think of spit hoods as semi-clear plastic bags. Now ask yourself: should the police put a plastic bag over someone’s head to prevent them spitting?
The plastic shield in front of the mouth and nose is an essential feature of spit hoods. But it’s also a dangerous flaw. It prevents air getting through when impermeable, usually with spit, mucus, and vomit.
Even though the police are trained to be aware of these risks, training doesn’t remove them. Jonathan Pluck of Cambridgeshire suffocated and died in police custody after police spit-hooded him and left him face down on a mattress. It appears that Mr Pluck suffocated because the mask became impermeable due to his spit and/or it lodged in front of his mouth and nose.
For those who do not die, the trauma of being spit-hooded can have lasting effects. This is especially so when combined with other restraint techniques. Spit hoods are rarely used in isolation, and never used in controlled environments such as radio studios, like Nick Ferrari did here. The police are more likely to use spit guards in situations like the one below involving IK Aihie. Watch the short clip and you’ll get a sense of the trauma spit hood victims suffer:
My client Paul Smith went through something similar. Sussex Police unlawfully arrested him. The police sprayed Paul in the face with PAVA (pepper) incapacitant spray. PAVA spray is an effective, painful weapon. It causes chemical burns, a reflexive narrowing of the airways, and makes the mucus membranes (nose, mouth, eyes) flow. It’s a natural response to spit, push out mucus, and cry. After spraying Paul in the face with pepper spray, the police knelt on his back, handcuffed Paul to the rear, and held him face-down on the ground. Officers also applied leg restraints rendering him completely immobile and defenceless.
They then put a spit hood over Paul’s head when they saw him spitting the PAVA spray out, even though he was face-down and not spitting at them. The spit hood quickly filled with spit and mucus. Paul begged the police for help, saying that he was choking. The police ignored his pleas and kept him in a spit hood for about half an hour.
Paul suffered physical injuries and psychological trauma due to the police assault. He was a law-abiding citizen who will “never trust them (the police) again”.
2. Spit hoods are not government-approved
It stands to reason that police officers’ “kit”, or equipment, must be tested and approved before use. The police want to know that it’s fit for purpose and can stand up to the rigours of the job. The public want to know that it’s safe and that taxpayers are getting value for money. The Home Office, through the Defence Science and Technology Laboratory (Dstl), tests police kit first. This approach also saves individual police forces time and money.
Produced any risk, safety, ethical, medical or other relevant assessments of spit hoods.
This situation created a testing and information “vacuum”. Some Chief Constables filled the gap even if their organisations may not have been equipped to do so. Forces may not have the technical expertise or budgets to
assess different products,
produce the relevant assessments, or
pay for suitable training.
This is made worse by media, political, and peer pressure to introduce spit hoods quickly. All these things could lead to corner-cutting with potentially devastating consequences, as I explained here.
You have to wonder why Central Government has failed to test spit hoods. The Home Office has “passed the buck” to the police. If I were a Chief Constable, I’d want answers before issuing this potentially deadly kit to my officers.
And as members of the public we have a right to know if spit hoods are safe.
3. Alternative approaches exist
During media interviews I’m usually asked “what is the alternative to spit hoods?”. The simple answer is “don’t use them”. But here are two more:
i. The use of restraints/ holds
ii. Officer visors
i. Restraints/ holds
Listen to the JVS show where we discuss spit hoods by clicking on the play button below:
You’ll hear Chris Culley, a former Metropolitan Police officer, explain (at 9 minutes 17 seconds -9 minutes 29 seconds) how:
“When I was a police officer… the simple expedient was, in those days, two or three of us would hold them and stand behind them and take a very firm grip on them and get them to a point where we could get them under some kind of control whereby they started to calm.”
This approach is effective and consistent with police officers’ training to de-escalate situations. Senior police officers have told me that some officers are too quick to use their kit. These rank-and-file officers ignore de-escalation techniques and Personal Safety Training guidance. In most cases officers could avoid using spit hoods and putting suspects at risk if they applied their training correctly.
Alternatives to spit hoods exist in the event restraint techniques fail. One such approach is for police officers to use visors, like the one shown here.
Police advocates say this is impractical. They ask why officers should have to wear visors instead of using a spit hood on the suspect. There are Human Rights issues which make the use of visors worthwhile, but put them aside for a moment. One practical reason (that even police officers can get behind) is that spit hoods can make situations worse.
4. Spit hoods can make things worse
Something that can get lost in the discussion about spit hoods is that police use them on suspects, not criminals. Everyone, even a person spitting, is innocent until proven guilty. Arresting someone and putting a spit hood over their head is a serious matter. It’s a deprivation of liberty and assault if unjustified. It’s also a degrading, humiliating experience and breaches human rights.
Suspects can become upset, indignant, and argumentative when arrested. But that does not justify using a spit hood, no matter how offended the arresting officer may be by the suspect’s conduct. (Read Paul Smith’s case report for details of how a police officer was criticised for this.)
And situations can deteriorate quickly. Problems arise when officers forget their training and fail to recognise the signs of a mental health crisis or drug use. Fear, confusion, and desperation can be powerful motivators to lash out. Spit hood masks can escalate the situation from a “mere” mental health or drug-induced crisis to a life-threatening one. In a recent tragic case, Terry Smith had taken amphetamines before his arrest. An inquest found Surrey Police failed to consider this when restraining him. The coroner reported that:
“Prolonged and excessive restraint, and a failure to understand that the resistance to the restraint [by the deceased] was leading to an ongoing depletion of oxygen and an increased level of adrenaline and that this was speeding up the effects of the [amphetamines] in his body.”
Mr Smith died the following day, The Coroner’s Court jury criticised Surrey Police for “serious failings and neglect”.
“whilst extremely unpleasant the likelihood of contracting communicable diseases from spittle is low.”
This includes serious diseases such as Hepatitis C and HIV, which cannot be transmitted by spitting. The Hepatitis C Trust and National Aids Trust expressed concern that spit hoods were wrongly being promoted as a way to help prevent hepatitis C and HIV. It criticised those who promote use this unfounded fear for their own ends, saying:
“Such falsehoods also cause unnecessary alarm to police staff. Given the significant challenges faced by police officers in the line of duty, causing them to fear they have been put at risk when they have not places an undue burden upon them, and must not go unchallenged. While the debate around the use of spit hoods is an important one for the police, policy-makers and the public, hepatitis C and HIV are of no relevance to it and should not be used as justification for their use.”
In hospitals, schools, and other places where people spit at staff, de-escalation techniques, such as effective communication and restraint holds, are used. Why should the police be any different?
Role in Society
I’m not surprised that the police campaign to get spit hoods. Police officers and their supporters are always looking for ways to get new “kit”, which they can use to control and subdue suspects. As I explained in this blog post this is leading to the increasing militarisation of our police force.
But for the rest of us, particularly those who want to live in a civilised society, spit hoods have no place.
Kevin Donoghue is a solicitor who represents victims of police misconduct. Contact him here.
“Words cannot express my gratitude to you. I have came across many people,all from different walks of life, but can honestly say with my hand on my precious nannies ashes that you one in a million.
You should be so extremely proud of yourself. Thank you are just words but when they are sent from the heart, I believe that they mean so much more.
May god bless you and your family.’
One of my clients wrote this in an email last week. It made me incredibly proud. It’s always nice to be appreciated, especially because bringing civil claims can be taxing for both claimants and their legal advisers. Defendant lawyers may never understand what it means to bring a civil claim. Most spend their days dealing with insurance company claims handlers, police force representatives, and in-house legal teams. This means that both client and defendant lawyer are experienced professionals comfortable with litigation. Emotions tend to be left out of it. But this means that many defendant lawyers don’t see the whole picture.
Why Claimants Bring Civil Actions
Consider the case of the client who wrote that email. I’m helping her with a civil compensation claim against the police. She’s a fine, upstanding member of the community who has been wronged by the very people she believed were there to protect her. Her faith in the police and judicial system has been shaken to its core. For this reason, it was no small feat for her to put her trust in another branch of the legal system: lawyers.
And yet she did.
My client has a strong sense of justice. She knew what she had to do to get it: instruct a specialist firm of solicitors to pursue a civil claim against the police.
My client was cautious at first. She had to overcome worries about bringing a civil claim and deal with paperwork and other necessities. All this takes time, effort, and persistence. Then add that we did not know each other and had to build a rapport based on mutual trust and understanding. Civil actions against the police can take years. It helps if both client and lawyer get on. Fortunately, we do.
My client opened up to me. She told me about the shame and humiliation she felt when the police mistreated her. She explained how she felt abandoned by the legal system, and how vulnerable and afraid she now feels. Her fear of police officers is real, genuine, and affects her daily life. Every knock on the door causes her to jump. She crosses the street when she sees police officers on patrol. Police car sirens and lights make her heart race. All because police officers crossed the line from enforcing the law to breaking it.
How Claimant Lawyers Help Their Clients
For me, this information is vital. From a work perspective, it helps me maximise her compensation claim and frame her witness statement. But there’s more to it than that. She knows I have her best interests at heart. Knowing how the police’s misconduct affected her means that I am better able to help. When she gets in touch I listen. If she gets frustrated or upset, I am better placed to understand why. Sometimes my client gets teary and emotional when we discuss her claim. If I didn’t know her and her story it would be hard to understand why. Especially when the simplest procedural matters trigger something. Her dreadful experience is still so raw. So, I give her time and space when she needs it, knowing that she’s doing her best to hold it together.
But this behaviour also takes its toll on me and my fellow lawyers working for claimants bringing civil compensation claims. Defendant lawyers rarely deal with such emotion. For them, procedural tricks of the trade designed to delay or deny claims carry little personal consequences. But for my clients those tools can be devastating and set back recovery. Defendant lawyers rarely deal with these human effects. I’m the one who must explain these things and keep my clients going through the tough times as they seek justice. Hard as this is, I’m not complaining. It’s my job. But the role of lawyer-as-counsellor is not something widely known outside the claimant side of the legal profession. It is not a job for which law school can train you. Nor, I suspect, is it a role many defendant lawyers would want.
What Defendant Lawyers Can Learn From This
My message to defendant lawyers is this: your actions have consequences. Put yourself in the claimant’s shoes and think about how your conduct or latest clever email will come across. It’s possible to fearlessly represent your client and act with compassion. Not only will you avoid inflicting unnecessary pain; you may become a better lawyer.
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