Does Apple Care More About Your Privacy Than the Government?

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

Solicitor Kevin Donoghue considers privacy concerns.

By Kevin Donoghue, solicitor

 
Timing is everything.
 
On Tuesday Apple showcased its latest smartphone, the iPhone X.
 
The next day Professor Paul Wiles, the Commissioner for the Retention and Use of Biometric Material (‘the biometrics commissioner’), published his annual report.
 
On the face of it, these events are unrelated. But are they?
 

Apple iPhone X Privacy Concerns

 
Tim Cook, the CEO of Apple, thinks the iPhone X is “the biggest leap forward since the original iPhone”. That’s a bold claim. iPhone revolutionised the market, and Apple has sold an estimated 700 million units.
 
One reason Apple is so excited about the iPhone X is “Face ID”. Face ID uses a front-facing camera to read the contours of your face. The phone will use that biometric data to recognise you. You can then:
 
· Unlock your phone without a password. 
· Use your phone to buy things. 
· Operate third-party applications.
 
Apple says, “Face ID is the future of how we unlock our smartphones and protect our sensitive information.” 
 
No more remembering passwords or using thumbprints. Handy, but it raises security and privacy issues.
 
For example, there is a risk that a thief could hold the phone up to your face to unlock it, before taking it away from you. No password; no problem.
 
Also, your face is different to an easily changed password. It is a permanent, public, and unique feature. A bad actor could abuse the biometric data from the phone. Imagine the life-changing financial and other harm.
 
The day after Apple’s announcement, Sen. Al Franken of the United States Senate wrote to Apple expressing his concerns. Among other things, he sought answers about how Apple intended to use and share the data, saying,
 
…Apple itself could use the data to benefit other sectors of its business, sell it to third parties for surveillance purposes, or receive law enforcement requests to access it(s) facial recognition system- eventual uses that may not be contemplated by Apple customers.
 
And then there’s the bigger question about where this biometric data is stored or shared. Apple says that biometric data will not go to the cloud. It will stay on the phone. But it’s not clear if the company can extract that data remotely or through physical access to the phone.
Also, the company says it does not have plans to upload biometric data. But will it in future? And how will you know? Will you read the updated terms and conditions or just click “accept”? Chances are it’s the latter. Time reported that it would take you 76 work days to read the privacy policies you come across as an internet user in a year. Even if Apple told you it was going to share your biometric data, would you notice?

Biometrics Data Held by Police

 
These are serious issues. Apple must address them to reassure customers and legislators worldwide. Which brings me to the second piece of news this week: the biometrics commissioner’s latest report. For those of us with an interest in privacy concerns, it makes for grim reading.
 
As I previously wrote, police use facial recognition technology without proper oversight. The Home Office has largely ignored the issue, which suggests
 
a wilful disregard of government duties and the democratic process.
 
One reason for this lack of oversight is that DNA and fingerprint biometrics are treated differently to facial images. In his latest report, Paul Wiles noted that the National DNA Database and Fingerprint Strategy Board has statutory powers under the Protection of Freedoms Act (2012). Among other things, it
  1. Monitors the performance of the National DNA database.
  2. Gives guidance to the police on the collection and use of DNA.
Facial images held on the Police National Database fall outside its remit. This is concerning, as Professor Wiles notes in his report,
 
The use of facial images by the police has gone far beyond using them for custody purposes. In July 2016 there were 19 million facial images on the Police National Database, 16,644,143 of which had been enrolled in the facial image recognition gallery and were (and remain) searchable using facial recognition software.
 
19 million images is an underestimate. It does not include all those held by the Metropolitan Police Service, the UK’s largest force. The true number is more than 20 million.
 
And unlike in the National DNA database, facial images are stored in an “anarchic” way by the various police services. Not all forces upload facial biometrics and images to the Police National Database. Durham, Leicestershire, and the Metropolitan Police Service also hold images in their own databases. Databases use different systems and software. Image quality varies. So, according to Her Majesty’s Inspectorate of Constabulary (Scotland), 
 
This means that differing standards are being applied to a common UK database.
 
As Paul Wiles warns,
 
This situation could easily produce differential decision making and potentially runs the risk of false intelligence or wrongful allegations.
 

Facial Recognition Technology Trial

The risk Professor Wiles described was highlighted at this year’s Notting Hill Carnival. As Liberty reported, the Metropolitan Police Service trialled facial recognition technology for the second time at the event, which involved an estimated 2 million carnival-goers. To say the technology has a long way to go would be kind. Silkie Carlo of Liberty found a
 
worryingly inaccurate and painfully crude facial recognition operation where the rules are devised on the spot.
 
She described how the Metropolitan Police,
 
had constructed a “bespoke dataset” for the weekend – more than 500 images of people they were concerned might attend. Some police were seeking to arrest, others they were looking to apprehend if they were banned from attending.
The facial recognition system failed in its task. It couldn’t tell men from women. It produced around 30 false positives. As Ms Carlo explained,
 
At least five of these they had pursued with interventions, stopping innocent members of the public who had, they discovered, been falsely identified.
 
There was no concern about this from the project leaders.
 

Racial Bias

A serious issue with facial recognition technology is racial bias. As The Atlantic, an American magazine, explains,
 
Facial-recognition systems are more likely either to misidentify or fail to identify African Americans than other races, errors that could result in innocent citizens being marked as suspects in crimes. And though this technology is being rolled out by law enforcement across the country, little is being done to explore—or correct—for the bias.
 
 This can be for many reasons, including:
  • The engineer developing the system designs it to focus on facial features that are more easily seen in some races than others.
  • The engineer’s own race may influence them when designing the system to distinguish faces.
The software may not be designed as “racist”, but that doesn’t lessen its effect. Despite this, Ms Carlo found that the Metropolitan Police,
 
had no intention of independently testing for racial bias. They had not asked the vendor if they had tested the algorithm for bias. It wasn’t a concern.
 
Similarly, they were wilfully ignorant of the demographic data in their Carnival dataset. They didn’t know the ethnicities, ages or gender of those on their watch list – nor did they want to.
 

Public Confidence

 
In 2012 Lord Justice Richards found that the police’s policy of keeping facial images was unlawful. He said the government should revise its policy “within months”. It took 5 years for the Home Office to come up with a review. But, as Prof Wiles notes, even that was not good enough:
 
The recent Review proposes leaving all these issues solely in the hands of the police without any independent oversight or assurance to reassure the public, especially those individuals whom the 2012 Court judgment 192 described as “entitled to the presumption of innocence”.
 
It is now almost five years since the Court held that the police retention of facial images was unlawful, yet we still do not have a clear policy in operation to correct that situation.
 
And he warned,
 
Facial images are a powerful new biometric but the acceptance by the public of their use for crime control purposes may depend on the extent to which the governance arrangements provide assurance that their use will be in the public interest and intrusion into individual privacy is controlled and proportionate.
 

Response Request

Sen. Al Franken gave Apple a month to answer his questions about its Face ID facial recognition technology. The company has already addressed some of the issues. I expect it will go further and seek to reassure the public and regulators that its new technology is safe and will be managed responsibly. The Home Office and police should do the same.
 
Kevin Donoghue is a solicitor who specialises in civil actions against the police.

In Praise of Appraisals

Photo of Kevin Donoghue, solicitor, who discusses staff appraisals in this blog post.

Kevin Donoghue, Director of Donoghue Solicitors, explains the benefits of staff appraisals.

By Kevin Donoghue, Solicitor Director of Donoghue Solicitors

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

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

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

How We Do Staff Appraisals

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

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

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

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

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

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

Outcome of Staff Appraisals

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

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

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

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

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

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

Why Facial Recognition Technology is Another Home Office Failure

Solicitor Kevin Donoghue investigates facial recognition technology used by the police here.

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

By Kevin Donoghue, solicitor

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

Facial Recognition Technology used at Notting Hill Carnival

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

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

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

Why does biometric data matter?

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

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

Inconsistency

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

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

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

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

He continued:

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

The government disagreed.

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

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

Further Legal Issues

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

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

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

Parliament

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

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

It can’t be right that:

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

Police Ethics

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

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

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

“Big Brother” Expansion

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

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

(my emphasis)

Another Home Office Failure

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

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

 

Read more from Kevin Donoghue on the Donoghue Solicitors blog.

 

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

Photo of Kevin Donoghue, who asks why CAST is ignoring spit hoods.

Kevin Donoghue asks why the Government’s CAST department is ignoring spit hoods.

CAUTION: THIS BLOG POST CONTAINS COARSE LANGUAGE

By Kevin Donoghue, solicitor

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

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

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

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

And

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

Spit Hoods Agreement

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

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

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

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

And later:

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

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

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

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

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

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

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

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

and many more.

Spit Hood Roll-Out

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

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

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

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

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

 “Spit Guard” Abuse

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

Paul Smith           I am on fucking fire

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

Paul Smith          I need water

PC S                   We don’t have water

Paul Smith          I need water. I need water man

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

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

Paul Smith          I am choking

PC C                   You’re not choking

Paul Smith          Seriously take it [the spit hood] off

PC C                   You can’t have it off your face

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

Spit Hood Consequences

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

As I explained to the BBC Radio Leeds listeners,

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

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

Police Federation Campaigns

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

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

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

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

I strongly disagree with this characterisation on two counts:

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

Call for Action

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

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

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

 

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

 

Why We All Benefit When People Bring Claims Against the Police

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

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

By Kevin Donoghue, Solicitor Director of Donoghue Solicitors

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

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

Effects When People Bring Claims Against the Police

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

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

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

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

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

TV appearance

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

 

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

Spit Hood Dangers

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

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

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

Public Vindication in Civil Courts

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

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

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

Police Confusion

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

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

(my emphasis)

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

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

Civil Court Judgment

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

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

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

Justice Done

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

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

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

Why I Agree with the Police Federation About Compensation Claims

Photo of Kevin Donoghue solicitor, who considers the Police Federation position on compensation claims in this blog post.

Solicitor Kevin Donoghue explains why he agrees with the Police Federation about compensation claims.

By Kevin Donoghue, solicitor

This week I found myself in the unusual position of agreeing with a representative of the police’s union, the Police Federation. They represent the interests of police constables, sergeants, and inspectors up to, and including, the rank of Chief Inspector.

As a solicitor who specialises in civil actions against the police, I represent people who have been victims of misconduct at the hands of Police Federation members. As a result, we often find ourselves on opposite sides of debates about policing in the UK.

In the past, we have clashed when discussing spit hoods, tasers, and post-incident investigations, among other things.

But this week I found myself agreeing with the West Midlands Police Federation representative quoted in a BBC report. It described how a police officer won more than £12,000 in compensation after being bitten by fleas at work. The Force justified the five-figure award by saying:

“Compensation payouts are only made following the assessment of appropriate medical evidence by insurers and solicitors who then make a recommendation to the force as to what the pay-out should be.”

Police Federation Defence

Defending the officer’s claim, Tom Cuddeford of West Midlands Police Federation said that compensation awards

“aren’t flippantly made”.

I couldn’t agree more, but some senior police officers do not hold our views.

Listen to Norfolk’s (former) Chief Constable Phil Gormley complain about the “corrosive compensation culture” when one of his own officers claimed compensation for her accident at work. He argued that “it generates a something for nothing attitude”.

So, who is right? The Former Chief Constable who argued that there is a “compensation culture” fuelling claims, or the Police Federation (and me)?

To answer that question, think about what’s involved in bringing a compensation claim against the police, by either a victim of police misconduct or a police officer injured at work:

  1. The claimant must have a valid, actionable claim in law. Grounds for compensation claims vary depending on the circumstances. For example, the law in civil actions against the police is complex. Police are well-protected so they can (generally) go about the business of fighting crime without fear of being sued. These limits on actions against the police mean that invalid claims do not get off the ground. Similarly, solicitors who represent police officers in accident at work claims may have to consider various laws, including statute, common law, employment law, and contract law to find out if the injured police officer can claim compensation. Neither is easy.
  2. Claims are strictly vetted by claimant solicitors like me before being submitted. As officers of the Supreme Court, we must act in the best interests of both our clients and the court. We filter unmeritorious claims to fulfil that duty. (It does no one any good to present hopeless claims at court.) We do this at no cost to the police or their insurers. This means that only the strongest cases go forward.
  3. Claimants know they in for a hard fight, especially when suing the police, who are agents of the State. Compensation claims against the police are (usually) aggressively fought by police forces, who have deep pockets and massive resources, which are only matched by their determination to protect their reputations.  Insurers take a similarly hard-line approach when dealing with police officers’ accident at work claims. Payouts can be huge, especially if early retirement and pension rights are part of the claim. Insurers, like police forces, are not in the business of giving away money easily.
  4. This means that only the best claims make it through the contested litigation process. Only genuine victims of police misconduct and accidents at work win compensation. And the compensation they receive is not a windfall. It is intended to put them in the position as if the police misconduct or work accident did not happen. No more, no less.

As I wrote here, the police use the (non-existent) “compensation culture” argument to deflect attention from their own misconduct and mismanagement. It’s about time that senior officers agreed with their Police Federation colleagues and recognised that claiming compensation is a legal right and that money is only paid in genuine claims. Claims against the police

  • are not part of a “corrosive compensation culture”, they
  • “aren’t flippantly made”, and they are clearly not
  • “something for nothing”.

 

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

This is Why People Sue the Police

Kevin Donoghue, solicitor, discusses why people sue the police in this blog post.

Solicitor Kevin Donoghue discusses why people sue the police.

When people sue the police are they only after money? Here Kevin Donoghue, solicitor, looks at their motivations, how the system forces some to claim compensation, and the impact of the so-called “compensation culture”.

Let’s get one thing straight. The “compensation culture” is bogus. It’s a vampire myth that refuses to die even though government ministers, senior judges, and others have found no evidence of it. And yet, the myth persists, promoted by insurers, attention-hogging politicians, and senior police officers including Phil Gormley, Chief Constable of Norfolk Police (as he was then).

Why?

Those who promote the compensation culture story have something to gain, be it money, political power, or some other benefit. In the case of the police, shaming innocent victims to stop them claiming compensation means more money for police budgets. And as I explain here, blaming the compensation culture helps the police avoid scrutiny as it deflects attention from their own management failings and misconduct.

Why People Sue the Police

But even if the compensation culture existed, money is rarely the main reason people sue the police. This is because civil claims are about more than compensation. They are also about justice, accountability, and vindication:

  1. For society to have confidence in the Rule of Law and the police’s role in it we need to see justice done when they act improperly. Innocent victims of police misconduct help by bringing civil claims to hold the police accountable for their actions. We all benefit as a result.
  2. Victims also deserve public acknowledgement of the wrongs they suffered. This can have a healing effect, helping them rebuild their lives after (often) appalling treatment by the police.
  3. Righting these wrongs often includes correcting personal data such as records of arrest, DNA samples, and fingerprints. (For example, read how we helped Nigel Lang clear his name after his wrongful arrest on suspicion of possessing indecent images of children.)
  4. Most of my clients tell me that these things matter more than compensation, but recognise that compensation is an essential part of civil claims against the police. This is especially so in cases where the police stubbornly refuse to apologise. Compensation is the next best thing as victims know it will lead to questions being asked within the responsible Force. Sometimes this leads to changes in police policy. My clients are often very interested in this, as they don’t want anyone else to suffer like they did.

Fight for Justice

Civil claims against the police also fill a gap in our legal system. They help victims of police misconduct seek justice where the criminal justice system and police’s own internal disciplinary processes fail.

I represent a teenage girl who alleges that she was sexually assaulted by a (then) serving police officer. My client immediately lodged a complaint against the police.  With her help, the police prepared a case for the Crown Prosecution Service (CPS) to bring criminal proceedings against the officer.

The burden of proof in criminal cases is beyond reasonable doubt. The CPS felt that the case was strong enough to seek a conviction.  My client gave evidence in court at a jury trial despite her genuine upset about being in the same room as her alleged attacker.

After hearing all the evidence, the jury could not agree that the CPS had met the high burden of proof. It was “hung” and the judge declared a mistrial.

The CPS insisted on a re-trial. My client gave evidence again, repeating her earlier harrowing experience. This time the jury acquitted the police officer, and he left court a free man.

My client was deeply upset. She took the verdict as meaning that the jury believed the police officer and thought that she was a liar.

Police Complaint

Determined to fight for justice, my client pressed the police to investigate her complaint thoroughly.

The police officer’s Professional Standards Department (PSD) investigated. Among other things, my client’s allegations raised a breach of the Police Code of Ethics which could result in misconduct proceedings. The Code states that police officers and staff must

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

On her version of events, the PSD should have referred  the case to the Independent Police Complaints Commission as it involved “serious corruption” and a “serious sexual offence”. But, for reasons unclear, the PSD’s investigating officers chose to deal with my client’s complaint “in house”. (This is not unusual. Read more about how the police wrongly handle police sexual exploitation complaints here.)

The burden of proof in police misconduct matters is the civil standard of “the preponderance of evidence”. This is lower than the criminal “beyond reasonable doubt” standard which the officer faced in his 2 jury trials. For a finding of misconduct, the PSD need show only that is was more probable than not that the misconduct occurred as alleged.

My client was confident that this would happen and that the officer would be severely sanctioned, and probably dismissed, for gross misconduct. After all, the CPS felt confident enough in the case to fight it to trial twice. Surely the police officer’s misconduct hearing would find that the case met the lower civil standard?

Resignation

Sadly, we will never know. The police officer resigned following his acquittal in the criminal trial. Misconduct proceedings, where the most serious penalty is dismissal, were ended.

This means that the police officer involved has no stain on his record. He is free to seek employment elsewhere, including occupations which may bring him into contact with vulnerable young people again.

Worryingly, he is not alone. In 2016 Her Majesty’s Inspectorate of Constabulary, the police’s overseer, reported that:

Since December 2013, police forces have been providing the college [of policing] with details of officers who have been dismissed from the service, or who resigned or retired while subject to a gross misconduct investigation in which it had already been determined that there was a case to answer.

Misconduct figures from the register relating to leavers between 1 December 2013 and 30 November 2014 were published in March 2016.39 Sixty-seven (8 percent) of the 833 cases on the register during this time were recorded as relating to police officers leaving the service after having had a relationship with a vulnerable person. Thirty-three of these 67 leavers were dismissed, 30 resigned and 4 retired.

(my emphasis)

Civil Compensation Claim

After all her other options had been exhausted, my client researched solicitors who bring actions against the police. We met and I explained that she could still pursue a civil compensation claim for police abuse of authority for sexual gain. This is despite the police officer’s acquittal in criminal court and his later resignation. On the evidence I have seen, she has a good claim for damages. This is partly because, like in the police officer’s misconduct proceedings, her compensation claim will be considered on the (lower) civil standard of proof.

The system has failed my client so far. In bringing this compensation claim she is seeking justice, vindication, and accountability. She also wants to make sure that the police take her allegations seriously, and put procedures in place to stop someone else suffering what she has been through. Her motives could not be further away from those raised by promoters of the bogus “compensation culture”.

 

Contact Kevin Donoghue for help to sue the police here.

 

Are police sexual exploitation cases being brushed under the carpet?

Photo of Kevin Donoghue, solicitor, who discusses police sexual exploitation.

Kevin Donoghue discusses police sexual exploitation.

By Kevin Donoghue, solicitor

In January Her Majesty’s Inspectorate of Constabulary (HMIC) reported on police sexual exploitation, also known as “police abuse of authority for sexual gain”. The police’s overseer found that, in the 2 years to March 2016:

  • Police abuse of authority for sexual gain is a nationwide problem. All but one police force had at least one case during the period.
  • There were 436 reported police sex abuse allegations made against the police in England and Wales (excluding British Transport Police)
  • 306 police officers were accused of this kind of police corruption
  • 28 PCSOs and staff were also accused
  • 40% of allegations involved victims of crime (who were vulnerable already)
  • 39% of accusations involved victims of domestic abuse.

It seems that everyone agrees this is a grave issue. HMIC Inspector Mike Cunningham described police sexual exploitation as the “most serious” form of corruption. Home Secretary Amber Rudd described the findings as “shocking”, saying it “undermines justice and public confidence”. The National Police Chiefs Council say this kind of misconduct in public office is a “disease” which “can never be justified or condoned”.

Despite this, HMIC found that less than half (48%) of all the police sexual exploitation cases it identified were reported to the Independent Police Complaints Commission (IPCC) for an independent investigation. HMIC said the police’s failure to refer matters to the IPCC was “disappointing” because police forces are aware of their obligations, shown by:

  1. the IPCC/ Association of Chief Police Officers report which raised the issue in 2012. The IPCC reported on it again in 2015, as did HMIC (as it was then known), and
  2. clear rules which state that police forces are required to report ALL of these “serious corruption” cases to the IPCC.

Perhaps even more troubling was the “apparent disconnect” between the numbers of alleged cases and staff dismissals. Between 1 December 2013 and 30 November 2014 only 33 officers were dismissed after having had a relationship with a vulnerable person.

This means that some officers who prey on vulnerable people for their own sexual gain stay in the police, giving them the opportunity to repeat this serious misconduct in public office.

Why are these things happening?

The story of one of my clients might help with an answer.

Police Sexual Exploitation by Phone

“Jean” (name changed for confidentiality) is a 61-year-old divorcee. She was married to a police officer for 15 years.

She met “John” on an online dating site. They became friendly but did not “click”, occasionally walking their dogs together. John was moving house and asked if he could store some boxes at her home. Jean agreed. He mentioned that one of the boxes had a home-made pornographic video of him and his ex-wife. Jean thought it was unusual that John would mention that, but was not interested in watching it.

John disappeared for a while. Jean later found out that he had been arrested. Jean contacted John’s daughter to find out why. She told Jean that John had been arrested for sex with a minor. Jean contacted the police and told them she had John’s stuff, including the sex tape. They collected it and viewed the video. It did not show John and his ex-wife. John had filmed himself having sex with a minor.

Jean was shocked and disgusted. How could she have become friends with this man? Her confidence was shaken, she felt vulnerable and emotionally raw.

Because of the serious nature of the case, a Detective Chief Inspector led the investigation. John was convicted and jailed with Jean’s help.

Months after the case ended Jean got a friendly text message from the DCI. She responded and they began texting back and forth. (This is known as “grooming” in sexual abuse cases.)

At one point the senior police officer sent her a picture of his erect penis. Jean was shocked, upset, and realised that the officer had been grooming her, abusing his position of authority for sexual gain. She immediately reported matters to another senior officer in the DCI’s force.

Police Corruption Investigation

As mentioned earlier, the IPCC’s rules are clear on what should have happened next. Matters involving “serious corruption” must always go to the IPCC for independent investigation. But what is “serious corruption”? Helpfully, HMIC defined it as the:

exercise of power or privilege of a police constable for the purposes of achieving a benefit for himself or herself, or a benefit or a detriment for another person, when a reasonable person would not expect the power or privilege to be exercised for the purpose of achieving that benefit or detriment; as defined in section 26 of the Criminal Justice and Courts Act 2015.

It went on to define “police abuse of authority for sexual gain” as:

a type of serious corruption, whereby police officers or police staff abuse their powers to sexually exploit or abuse people.

The officer’s conduct fits within both definitions. It was also a breach of the Police’s Code of Ethics  which states that police officers and staff must

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

And yet, despite

  • the IPCC’s strict rules
  • HMIC guidance, and
  • strong evidence of misconduct (including my client’s account, text messages, and photographic evidence),

the officer tasked with investigating Jean’s complaint tried to get her to agree to the Force dealing with matters internally.

Jean‘s 15 years of marriage to a police officer made her suspicious of this offer. She thought that if the police investigated her complaint themselves it would be “brushed under the carpet”. In her view this was even more likely because it involved a Detective Chief Inspector, a very senior officer, who was near the end of a long and decorated career.

She refused the investigating officer’s proposal and demanded that her case be referred to the IPCC for an independent investigation. They are now involved and I am helping Jean with a civil compensation claim against the police.

Failure to Refer Police Sex Abuse to the IPCC

In my opinion, the DCI’s misconduct in Jean’s case was obvious. Despite this, the Force tried to persuade Jean to let them deal with her complaint internally. At this point we can only speculate why. I will press the police for an explanation during my client’s case.

Public Confidence in Police Sexual Exploitation Investigations

It is unclear why the majority of police forces wrongly deal with police sexual exploitation matters internally, especially when everyone agrees that this form of corruption is serious and wrong.

Police overseers have a duty to hold police forces and officers to account. One way they can do this is by strictly enforcing the IPCC’s mandatory referral rules when investigating police sexual exploitation. Only then can the public have confidence that this form of police corruption is being treated with the gravity it deserves.

Kevin Donoghue is a solicitor who represents victims of police abuse of authority for sexual gain at Donoghue Solicitors.

 

 

 

With Police Spit Hood Trial Expansion, Democracy Dies in Darkness

Photo of Kevin Donoghue, solicitor, who writes about the Metropolitan Police spit hood trial expansion in this blog post.

Solicitor Kevin Donoghue considers the Metropolitan Police’s spit hood trial expansion.

By Kevin Donoghue, Solicitor

I was disappointed to read that the Metropolitan Police has expanded its police spit hood trial to include all custody suites across London. Spit hoods, or, as “The Met” likes to call them, “spit guards”, are made of nylon mesh with a plastic reinforced panel at the front. They are placed over a subject’s head to prevent the transmission of spit, mucus, vomit, and/ or blood.

The Metropolitan Police say that the original scheme was successful, but “too limited”. It was based in 5 custody suites in north-east London police stations, but will now run Force-wide.

This is a significant development as the expansion now affects over 8 million people in the Metropolitan Police area, and countless millions more who visit the Greater London area every year.

I wrote about the dangers of police spit hoods here. They can become impermeable when bodily fluids coat the inside of the hood. This makes it hard to breathe, as my client Paul Smith found out. And the use of spit hoods with other forms of restraint increases the risk of death or serious injury by “positional asphyxia”. Those concerns seem to have been ignored.

Evidential Issues with Police Spit Hood Expansion

I am also concerned about the lack of transparency in the decision to extend the police’s spit hood trial. The Met says that the pilot was “successful”, but puts forward no evidence in support of its claim. What does the Force consider a “successful” trial? That, unlike Jonathan Pluck, no one died in custody while wearing a police spit hood?

Also, it claims that:

“Spit guards are a nationally approved piece of police personal safety equipment and are already used by 22 forces across the UK.”

This sounds reassuring, but, like the police’s use of the phrase “spit guards” and not “spit hoods”, is it just spin?

“1. “Nationally approved”

The Government’s Centre for Applied Science and Technology (CAST) is responsible for testing police equipment. As I previously noted, CAST has not evaluated spit hoods, unlike other police equipment like body worn cameras and CS or PAVA (“pepper”) spray. I checked its website today. There is still no Home Office guidance about spit hoods despite the risks associated with them. I find it odd that CAST dedicates so much time to body worn cameras and not to “spit guards”. No one dies being filmed, but, as I explain here, people can, and do, when wearing a police spit hood.

So, who approved the police’s spit hoods nationally? What criteria did they use? Did they test and approve a particular type or brand of hood? Did they set standards for ethics, training, best practice, and usage monitoring? If no such official approval exists, on what basis does the Met claim that spit hoods are “nationally approved”?

2. “22 forces across the UK”

The Metropolitan Police says that spit hoods are already in use in 22 police forces across the UK. There are 48 forces in the UK. If the Met’s number is correct, the majority (54%) of our police forces do not use spit hoods.

Why not admit that the Force is in the minority?

Pressure

Police spit hood use is not more widespread because individual Chief Constables decide if they are appropriate given the risks. For example, in 2013 West Midlands Police chose not to use them after its Heath, Safety & Welfare Committee found that:

“whilst extremely unpleasant the likelihood of contracting communicable diseases from spittle is low.”

And the Hepatitis C Trust and National Aids Trust criticised those who promote the use of police spit hoods for creating an unfounded fear of contracting hepatitis C and HIV from spitting.

Despite this evidence, Chief Constables from police forces which have yet to introduce spit hoods find themselves under pressure from organisations such as the Police Federation.

Senior officers will be watching closely to find out how the public reacts to the Metropolitan Police’s spit hood expansion. The Met is by far the largest police force in the UK. If it escapes proper inquiry then it is likely that the remaining forces will follow suit.

Accountability

The motto of America’s Washington Post newspaper is “democracy dies in darkness”. Cressida Dick, the Commissioner of the Metropolitan Police, might want to consider those words and how she can align them with the 9 Principles of Policing. The Metropolitan Police is avoiding public scrutiny and accountability by its actions.

We live in a democracy, not a military state, but as I have previously discussed, sometimes it doesn’t feel like it. We deserve better.

Read more from Kevin Donoghue, solicitor, on the Donoghue Solicitors blog.

 

 

3 Urgent Changes Needed After Police Counter-Terrorism Raid

Photo of Kevin Donoghue, Solicitor, who suggests changes to police policy and procedures after the recent counter-terrorism raid.

Kevin Donoghue suggests urgent changes after the counter-terrorism raid in North London.

By Kevin Donoghue, solicitor

A while ago I asked if Cressida Dick, the new Metropolitan Police Commissioner, would uphold Sir Robert Peel’s 9 Principles of Policing. The Peel Principles underpin the police’s Code of Ethics, which include the requirement to “be diligent in the exercise of my duties and responsibilities” (Standard 6).

After the recent counter-terrorism raid in Willesden, North London, Ms Dick has an opportunity to show how she meets this Standard. She could immediately

  • issue body worn cameras to all firearms officers,
  • insist on their use, and
  • back proposed changes to post-incident investigations.

In doing so, the Commissioner would

  • meet her own duties and ethical requirements,
  • assist officers in theirs, and
  • lead other forces by example.

This is why.

London Counter-Terrorism Raid Shooting

On Thursday 27 April, Metropolitan Police officers shot a 21-year old woman in a planned counter-terrorism raid in Willesden, North London. The woman was arrested on suspicion of terrorism-related offences on her release from hospital a few days later.

The Independent Police Complaints Commission (“IPCC”) investigated right away. It reported that:

Initial accounts have been provided by all of the key police witnesses and the majority have now provided their detailed accounts of the incident, in line with current authorised police practice. None of those key police witnesses, those who were inside the property at the time the woman was shot, were wearing body worn video.

(my emphasis)

It is unlikely that there will be any other video footage taken from inside the woman’s home during the raid. If so, the IPCC’s investigators will have to rely upon the evidence of the officers involved. This situation is unsatisfactory because the officers involved can confer about what happened before providing their accounts. If the shooting victim has a different version of events, it will be hard for her to counter the police’s consistent and similar evidence.

The potential for abuse is obvious. But how can body worn cameras help?

Benefits of Body Worn Cameras

Police officers have used body worn cameras in the UK since 2005. In October last year the Met announced that it was issuing cameras to 22,000 frontline officers. Sir Bernard Hogan-Howe, the former Commissioner of the Metropolitan Police, promoted their use as he said they help the police get “the best evidence possible” and make sure the public can “hold us to account”.

He’s right on both counts.

As a solicitor who specialises in civil actions against the police I often disagree with police policies, procedures, and (mis)conduct. But on the use of body worn cameras I agree with the former Commissioner, especially when it comes to holding the police to account. As I explained here, body worn camera video evidence helped my client Paul Smith (details used with permission):

  • argue his case at the police station immediately after arrest,
  • secure his release from custody without charge, and
  • recover fair compensation as an innocent victim of police misconduct.

In doing so, the video also

  • helped the police deal with the consequences of officer misconduct, and
  • saved the taxpayer the cost of a court trial.

Even though the police need to improve their body worn cameras policy, I am firmly of the view that cameras are helpful and should be issued to all front-line officers as soon as possible.

But firearms officers must get this equipment first given their dangerous, and sometimes deadly, role. Influential voices in the police agree. According to Simon Chesterman, the National Police Chiefs Council lead on armed policing, firearms officers are “falling over themselves to get hold of these cameras”.

Inconsistency and Delay

So what’s the problem?

It is likely that the Willesden raid was conducted by “SAS-style” Counter-Terrorism Specialist Firearms Officers.

These are Authorised Firearms Officers who have undergone extra training. They deal with terrorist incidents and hostage situations among other duties.

In October 2015 the IPCC noted that, in contrast to Authorised Firearms Officers, Specialist Firearms Officers do not routinely wear body worn cameras. (Then) IPCC Commissioner Jennifer Izekor raised this glaring inconsistency in a letter to Sir Bernard Hogan-Howe.

In that letter the IPCC recommended that armed officers involved in “overt” operations should be equipped with body worn cameras “at the earliest opportunity”. Despite this recommendation, over a year and a half later it seems from the Willesden raid that Specialist Firearms Officers are still waiting. Simon Chesterman says that the Metropolitan Police intends to have every uniformed firearms officer wear one by the end of 2017. Why the delay?

(It’s worth noting the different treatment of “overt” and “covert” operations. The police are grappling with how to incorporate body worn cameras into undercover (“covert”) operations. A source says they use cameras fitted in buttons to avoid exposure.

No such issues arise with “overt” policing matters though. Anyone watching the footage from the planned Willesden counter-terrorism raid could be in no doubt. See the mobile phone footage from across the street here. This was a very public “overt” incident. The uniformed, armed officers, did not attempt to hide the operation. It will be interesting to know if the officers involved in planning considered using body worn cameras.)

Investigation Dispute

Despite broad agreement about the use of body worn cameras, police representatives and the IPCC disagree about how to investigate incidents involving death or serious injury. Firearms officers are particularly affected because of their role.

Simon Chesterman complained that the fears of post-incident investigations put off potential firearms recruits. He said that “There are things in the background that, if we don’t get them right, will put people off.”

To “counter some of the myths the Police Federation are putting out” the IPCC published its “Draft statutory guidance to the police service on achieving best evidence in death or serious injury matters” on its website. It sent the draft Guidance to the Home Office in February.

One of the proposed changes relates to how police officers presently confer with colleagues after death or serious injury incidents, which can include those involving firearms. The draft Guidance says:

Separation and prohibition on conferring

  1. Any conferring between witnesses has the potential to undermine the integrity of their evidence, and to damage public confidence in the investigation. As a result, non-police witnesses are routinely warned not to discuss the incident in question either before or after they have given their accounts. The same should apply to policing witnesses.
  2. Once the key policing witnesses have been identified: 20.1 They should be instructed not to speak (or otherwise communicate) about the incident with each other, or any other potential witnesses, both before and after they have given their accounts. 20.2 If it is necessary for key policing witnesses to discuss the incident with each other to avert a real and immediate risk to life, the extent to which such discussion has taken place, the justification for doing so and the content of that conversation, must be recorded as soon as possible.

20.3 From the moment it is operationally safe to do so, they should be kept separate until after their detailed individual factual account (“DIFA”) is obtained.

This change in the approach to taking police witness evidence was described by Sarah Green, the IPCC Deputy Chair, as merely “mirroring the approach police take with all key witnesses”. I agree with the IPCC on this. Allowing police officers to confer before providing their statements undermines investigations and public confidence.

The use of body worn video would help both sides of this debate. While it might not tell the whole story, it would ease the burden on officers. Their individual video footage could be reviewed along with their written accounts. And it would help speed up investigations, as it did in my client Paul Smith’s case. If firearms officers have acted appropriately, and are not “trigger happy” as was once suggested by their SAS trainers, then body worn video will help prove that and allow them to get on with their important work.

Proposal

Metropolitan Police Commissioner Cressida Dick, whose reputation will forever be linked to the fatal shooting of an innocent man, Jean Charles de Menezes, could take the lead here in three ways:

  1. Issue body worn cameras to firearms officers immediately.
  2. Insist that body worn cameras are required in all matters involving firearms officers, even covert operations.
  3. Support the IPCC’s draft statutory guidance on achieving best evidence in death or serious injury matters to promote transparency.

Doing these things would make sure

  • Metropolitan Police officers and their representatives,
  • the IPCC, and
  • the public

all know she is listening to their concerns, taking them seriously, and promoting the highest ethical standards within the Force. Win: win: win.

 

Kevin Donoghue is a solicitor who specialises in civil actions against the police. Read more from him on the Donoghue Solicitors blog.