Should Police Spit Hood Equipment be Used on Children?

Photo of Kevin Donoghue, solicitor, who examines police spit hood use on children in this blog post.

Kevin Donoghue asks if police spit hood use on children is appropriate.

By Kevin Donoghue, solicitor

On BBC Two tomorrow (6 December) Victoria Derbyshire will discuss an alarming increase in the use of police spit hood equipment on children as young as 8 years old.

Spit hoods, or, as the police would prefer, “spit guards”, are mesh fabric hoods police officers use to protect themselves from infection when detaining suspects. They are classed as a use of force by a police officer so that when police spit hoods are misused they can lead to misconduct investigations and significant actions against the police compensation awards.

So far, the controversial masks have only been adopted by a third of police forces nationwide. It has been reported that some Chief Constables are worried that the spit hoods available for use by UK police forces are reminiscent of the hoods used on detainees at Guantanamo Bay. And it is interesting that the Metropolitan Police is consulting on their use in police station custody suites only, out of public view.

Police Spit Hood Ban Demand

The Children’s Rights Alliance for England, together with their counterparts in Scotland and Wales, have called for a ban on the use of police spit hood equipment on children, and the Independent Police Complaints Commission (“IPCC”) has expressed concern about their use. In one particularly disturbing case Child H, an 11-year old girl, was twice placed in a spit hood by Sussex Police officers while being detained for a total of more than 60 hours. Eleven police officers and one police staff member were found to have cases to answer for misconduct following Child H’s police complaint and the IPCC investigation.

I expect that the Victoria Derbyshire programme will discuss the police’s response to a Freedom of Information Act (“FOIA”) request made by the Children’s Rights Alliance. Although I have yet to see it, I understand that the response confirms a 250% increase in the use of police spit hoods on children aged between 8-15 years old. (From 8 recorded instances the previous year, to 20 this year). This figure may be an underestimate because Freedom of Information Act responses by the police can be incomplete. Sometimes forces simply fail to respond to FOIA queries. As the BBC reported, one estimate of police spit hood use was likely to be low because “some forces haven’t disclosed the numbers”. In other cases, such as in Sussex Police’s Child H case, the police officers themselves failed to correctly record their use of force. The IPCC said this was a “very worrying failure in that it indicates a lack of appreciation of [officers’] own accountability”.

The police have an understandable desire to ensure their own safety and promote public acceptance of “spit guards”. (I expect anyone interviewed from the police’s side to use that phrase rather than the more widely used and understood “spit hoods”. Read why this piece of PR spin matters here.) But despite the police’s concerns, in a civilised society should we allow them to subject children to these “primitive, cruel and degrading” tools?

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

Update: 6 December 2016

As expected, the Victoria Derbyshire programme discussed the use of spit hoods today. You can watch the discussion here (fast forward to the 1 hour 22 minutes 26 seconds mark).

Ms Derbyshire quoted figures provided by “a children’s charity” (I assume it was the Children’s Rights Alliance for England which produced this report on the State of Children’s Rights in England), which said that:

  • spit hood use on under-17s tripled in the last year (from 8 cases to 24)
  • “the true the number could be even higher”
  • in 2015 spit hoods were used on 12 children in England with the youngest being 13 years old.

In a harrowing story, a mother described how her 11-year-old daughter was restrained using a spit hood:

Mother: She just came shuffling. They had her under each arm and she had a spit hood over her head, and leg and ankle restraints on, and her head was hanging, and she had no, like, fight left in her any more, and they were literally dragging her with no shoes on. And then they put her on the floor.

Interviewer: That must have been very upsetting to see?

Mother: Yeah. I have nightmares about it.

Shamik Dutta, Lawyer at the charity Inquest, and Che Donald, Sergeant in Sussex Police and spit hood (a.k.a. “spit guard”) lead at the Police Federation, also appeared on the programme.

Arguing against the use of spit hoods, Mr Dutta said that their use is both “barbaric and unnecessary”, and that the majority of police forces do not use them. He explained that people can die when restrained face-down with handcuffs due to “positional asphyxia” (suffocation). Wearing a spit hood increases this risk because it is harder to see the suspect’s face. This makes it difficult for the police to know if the person is suffocating. And, because the victim can’t breathe they are unable to tell the police what’s happening.

Che Donald argued against this version of events, saying that the use of the “spit guard” reduces the risk. But when asked if he agreed that it was more difficult to see someone’s face with a spit hood on he said, “I appreciate that.” He also said that, because of the risk of assault by spitting on police officers, “I wouldn’t have a problem using it (a spit hood) on anyone under 17.”

Mr Dutta pointed out that spit hoods are used in conjunction with other forms of restraint. He argued that the use of the spit hood in addition to these other forms of restraint places suspects, especially children, at unacceptable risk of death or serious injury.

I have previously written about the risks Mr Dutta described. Click here to read more about them.

 

Spit Guards or Spit Hoods? Don’t Fall for the Spin

Photo of Kevin Donoghue, solicitor. Read about us here.

Kevin Donoghue, Solicitor Director of Donoghue Solicitors.

By Kevin Donoghue, solicitor

The Scene: a member of the Police Federation goes into a hardware store and approaches a sales assistant.

Police Federation Member: Where can I find the earth moving implements?

Sales Assistant: (Blank look) I’m sorry. What was that?

Police Federation Member: Earth moving implements. You know, for moving earth in the garden.

Sales Assistant: No, I’m sorry, I don’t.

Police Federation Member: (condescendingly) Listen, I have to move earth in my garden. You sell implements with a handle at one end and a flat blade at the other to let me do that. Now be a good man and tell me where I can find them.

Sales Assistant: (thinks) A handle at one end and a flat blade at the other… I know! It’s a spade! You want to buy a spade!

Police Federation Member: Well obviously. That’s what I said!

 

I recently took part in a debate on BBC Radio 5Live about spit hoods. (A spit hood is a mesh fabric hood which the police put over a person’s whole head to prevent spitting or biting.) Listen to the interview on BBC iPlayer (at 2 hours 47 minutes) or here:

In the well-mannered and lively discussion, Che Donald, Police Federation representative and serving Police Sergeant with Sussex Police, put forward the police’s point-of-view. One of the first things he did was correct presenter Eleanor Oldroyd when she used the term spit hoods, insisting that they be referred to as “spit guards”. This struck me as interesting, particularly as the term “spit hoods” is widely used, and understood, by the police and public alike. Essex Police Federation Chairman Mark Smith refers to them as “spit hoods”, as do forces including Surrey Police and British Transport Police, and the media such as the BBC.

Sergeant Donald is not the only one to use the term “spit guards”. The Metropolitan Police reports on its website that it is presently consulting on “a pilot for the use of spit guards in a small number of custody suites.” (my emphasis)

The Centre for Public Safety” also refers to spit hoods as “spit guards”, as did London Assembly Member Jennette Arnold OBE when she questioned Sir Bernard Hogan-Howe, Commissioner of the Metropolitan Police.

So what, you may ask? Well, words matter. What we call things affects how we think of them. This is especially important when considering these potentially lethal tools.

Why Spit Hoods Are Being Discussed

A third of all police forces in the UK now use spit hoods. Some, including Mr Donald’s Sussex Police, have been using them for years. But the deployment of “spit guards” became well-known when our biggest Force, the Metropolitan Police, recently changed its mind about using them after a public outcry.

Despite the controversy the police officer’s union, the Police Federation, is keen to see spit hoods extended to all forces. They want us to think of “spit guards” as benign tools which, as I previously discussed in this blog post, help police officers avoid injury and assist in safe policing. But are they really safe?

How the Police Use Spit Hoods

If you’ve never seen a spit hood in action watch this video to see how British Transport Police use them (warning: contains strong language and distressing scenes):


You will see how the police pinned 20-year-old IK Aihie to the ground before putting the so-called “spit guard” over his head. Mr Aihie is clearly struggling. Many onlookers, including his girlfriend, seem upset.

British Transport Police claimed that IK threatened to spit at the officers. A witness said “I didn’t see him spit and I was so close.” His girlfriend made a police complaint about the incident for what she described as “excessive and unwarranted” force.

Why “Spit Guards” Are Dangerous

Spit guard fabric is breathable unless it becomes impermeable, usually with spit, mucus, blood, and/or vomit. Consequently, suffocation is a real risk, and police officers who use spit hoods must take appropriate precautions. Surrey Police’s “Use of Force and Work Equipment Procedure” says:

Spithoods may be used where a person threatens or attempts to spit at or has spat at officers or members of police staff. The hoods are made of a fine flexible mesh material which while allowing the detainee to breath freely prevents the majority of the spit passing through. Subject must be handcuffed to the rear before spithood is used to prevent self removal.

Officers must be aware at all times of how spithoods can appear to members of the public, and that pictures taken of them in use could undermine public confidence.  Caution should be exercised when deploying spithoods in the public arena.  Officers must be aware of their obligations under Article 3 of the HRA relating to inhuman and degrading treatment, hence spithoods should only be deployed when absolutely necessary.

Application of spithoods 

Where possible, remove any facial jewellery and eye wear prior to application. Place over head of subject ensuring it is not restricting breathing or tight on the throat. Any subject who has had a spithood placed upon them must be supervised at all times. Spithoods are not to be used if the subject is having difficulty breathing, vomiting, or bleeding profusely from the mouth or nose.

Spithoods must be disposed of as a bio hazard. Replacement spithoods are available from custody suites.

(my emphasis).

Note that the detained person must be handcuffed to the rear before the spit hood is applied. While this is standard procedure to prevent hood removal, it also means that the wearer can’t adjust the hood if it becomes impermeable. The requirements that the subject remain constantly supervised, and that they are not hooded if they are having difficulties, are sensible and appropriate. All police forces should use them. Sadly, these common-sense rules are not always followed, sometimes with tragic results.

A spit guard in use by British Transport Police.

IK Aihie detained using a “spit guard”

Spit Hood Deaths

  • On 6 May 2009 Jonathan Pluck of Cambridgeshire died in police custody at Thorpe Wood Police Station in Peterborough after police put a spit hood over his head during arrest. The Independent Police Complaints Commission reported that, while still wearing the hood:

At the police station he was restrained in a cell, strip searched and then left face down on a mattress which had been placed on the cell floor.

Within minutes Mr Pluck was observed from outside the cell and was clearly unwell. Officers entered the cell and attempts were made to resuscitate him. Paramedics were called and he was taken back to Peterborough District Hospital where he was pronounced dead at 6.38pm.

(my emphasis)

Police in the USA use spit hoods extensively, with similarly devastating consequences.

“[Officers] … placed a spit mask on the face of [Marden] thereby constricting his ability to breathe despite observing and hearing Jack Marden state that he was having difficulty breathing … causing plaintiff’s decedent to asphyxiate and suffer cardiac arrest.”

As the lawyers pointed out, Mr Marden was resisting simply because he couldn’t breathe, drily noting that this is something which “usually causes people to be very agitated”.

  • Michael David Jones died on 20 November 2013. Police sprayed him in the face with Pelargonic Acid Vanillyl Amide (“PAVA”) incapacitant spray (also known as “pepper spray”). The spray, which contains a synthetic variant of capsaicin (the active ingredient in pepper), causes the victim to suffer extreme eye pain, narrows airways causing shortness of breath, and produces saliva and mucus. Police are trained to spray it directly into the face because it must be aimed at the eyes to be effective.

After being sprayed Mr Jones was spit-hooded and left alone in a seclusion cell. He complained that he couldn’t breathe. After an 8-minute interval the police found him unconscious. When they removed the spit hood, “vomit spilled out”. Mr Jones died as a result of asphyxiation.

  • Daniel Linsinbigler died in Clay Country jail in Florida in March 2013. Daniel, who was on suicide watch, became agitated. Officers sprayed him in the face with pepper spray and strapped him to a restraint chair in which nylon straps were secured over his arms, legs, and chest.

Police covered his head with a “spit mask” to prevent being contaminated by the fluids. One of the other inmates said he heard Daniel say:

‘I can’t breathe, I can’t breathe, get this hood off. I’m going to behave … Just let me get some air I have to be able to breathe.'”

He suffocated and died strapped in the chair with the “spit guard” covering his head.

Sussex Police’s Use of Spit Hoods

Michael David Jones’ and Daniel Linsinbigler’s cases have worrying echoes with that of my client Paul Smith (details used with permission). Paul was unlawfully arrested by Sussex Police after a minor traffic violation escalated when the arresting officer mishandled the situation. An officer pepper sprayed Paul during the struggle to take him to the ground face-first,

The pepper spray made it difficult for Mr Smith to breathe. He reflexively tried to spit out the foul-tasting liquid. The arresting officer (wrongly) interpreted this as an attempt to spit at him and officers put a spit hood over Paul’s head.

The (supposedly safe) spit “guard” deprived Paul of the cool, fresh air he craved and heightened his sense of panic. As children we are taught not to put plastic bags over our heads because they prevent breathing. And yet, this was the risk the police took when they sprayed, hooded, and held Paul face-down on the ground. In this position Mr Smith had no alternative but to breathe in the painful PAVA liquid which was on his face. This naturally led to more spitting and mucus, limiting the flow of air through the mesh hood.

Fortunately for Paul he did not suffocate, but the experience was painful, distressing, and humiliating. Mr Smith suffered physical and psychological injuries, for which he received £25,000 compensation. Read more about his case here.

Misleading “Spit Guard” Spin

The police, Police Federation, and others, seem to be on a charm offensive to encourage wider adoption of spit hoods and public acceptance of their use. Calling them “spit guards” makes them sound safe and innocent. They’re not. As the examples above show, spit hoods can be lethal and/or cause serious, life-changing injuries. Let’s be honest, stop the spin, and call a spade a spade.

 

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

 

 

 

The Spit Hoods Balancing Act

Solicitor Kevin Donoghue was interviewed on BBC Radio Essex about spit hoods.

Kevin Donoghue solicitor, discusses spit hoods on BBC radio.

By Kevin Donoghue, solicitor

Last week I discussed spit hoods on BBC Radio Essex with presenter Sadie Nine and Steve Taylor, incoming head of Essex Police Federation. You can listen to the interview on BBC iPlayer or here:

The Police Federation, a staff association, is keen to ensure its police officers have access to the controversial mesh masks. But should they? Here I discuss the issues which must be addressed before allowing police forces to use these potentially deadly tools.

How Spit Hoods Are Currently Used

Recently I noted that the Metropolitan Police suspended the use of spit hoods after a public outcry. As the UK’s largest police force, it is unsurprising that the Met’s plans caught the public’s attention. But before this announcement what went almost unnoticed is the fact that, according to Sir Bernard Hogan-Howe, Commissioner of the Metropolitan Police, 15 police forces around the country (about a third of them) are already using spit hoods on people as young as 11, and as old as 70.

Unlike with other police equipment such as CS and PAVA spray and Body Worn Cameras, there is no nationwide standard for spit hoods or their use. The government Centre for Applied Science and Technology (CAST), which describes itself as being “made up of scientists and engineers who develop technological solutions to fight crime”, has yet to provide guidance on spit hoods. This was confirmed in a Freedom of Information Act response provided to me by the Omega Foundation which says:

Q1) Have CAST formally evaluated spit hoods and masks for use by UK police forces?

Answer – No, CAST has not formally evaluated spit hoods or masks

Q2) Have CAST identified models or types suitable for use?

Answer – No, CAST has not identified models or types suitable for use.

Q3) Have CAST produced risk, safety, ethical, medical or any other relevant use based assessments of spit hoods and guards for use by UK police forces?

Answer – No, CAST has not produced any assessments of spit hoods or masks

Because of this lack of official guidance, the decision to use spit hoods falls on individual Chief Constables. Consequently, spit hoods are being rolled out across the country on a piecemeal basis, leading to glaring inconsistencies in policing. For example, British Transport Police used a spit hood to help them detain and subdue 20-year-old IK Aihie in London Bridge Train Station. But if Mr Aihie had been arrested on the street outside the station the Metropolitan Police would not have used this kind of force.

Photo of a police officer. In some forces in the UK police officers use spit hoods.

Spit Hoods Considerations

The vacuum in official guidance means that Chief Constables must apply a delicate five-point balancing act:

  1. As the Metropolitan Police’s Chief pointed out, “I’ve got a duty to keep our police officers safe”. The police do a difficult job and come in to contact with people who may have such devastating diseases as Hepatitis C and TB. The risk of infection from spitting saliva or blood is a prime concern.
  2. The police must also take the arrested person’s health into account. Spit hoods may seem benign, and as LBC’s Nick Ferrari described when wearing one, “I can breathe perfectly”. But, with respect to Mr Ferrari, there’s a world of difference between wearing a spit hood in a radio studio compared to a “real life” situation, such as my client Paul Smith’s. In this extract from body worn camera footage the police sprayed Mr Smith (details used with permission) with PAVA incapacitant (which is designed to cause extreme pain and narrowing of airways so that the victim reflexively spits it out) then put a spit hood over his head:

Paul Smith                I am on fucking fire

Police Officer           Stay still, I sprayed you for a reason, because you were resisting arrest

Paul Smith                I need water

Police Officer            We don’t have water

Paul Smith                I need water. I need water man

Police Officer            We don’t have any water to give you

Police Officer            You will get water when you go in your cell

Paul Smith                I am choking

Police Officer            You’re not choking

Paul Smith                Seriously take it off

Police Officer            You can’t have it off your face

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

Police Officer             Stop swearing there is children over there

I can’t show the disturbing body worn camera footage here but Paul tells me that the transcript doesn’t do justice to the pain and fear he felt.

The risk when police spray someone with PAVA spray then apply a spit hood is that the clean, dry spit hood soon becomes impermeable with mucous, spit, and possibly vomit. In that situation, the near-sealed hood has the effect of keeping the PAVA spray close to the victim’s mucous membranes, increasing the flow of mucous/ spit/ vomit onto the inside of the hood. Death through suffocation is a real threat, as this story from the USA tragically describes, but in response to a question about breathing difficulties after hooding Metropolitan Police Federation Chief Ken Marsh said:

“Nonsense – it doesn’t affect your breathing at all,” said Marsh. “Bear in mind people who behave in this way are drunk or on drugs whilst they’re behaving like this. They should think about doing those things before they worry about a bit of spit.”

This view, from one of the country’s top Police Federation chiefs, is unhelpful to say the least. Surrey Police, which uses spit hoods, came to the conclusion that subject safety is more important and say “Spithoods are not to be used if the subject is having difficulty breathing, vomiting, or bleeding profusely from the mouth or nose.” (This is despite the greater potential for police officers to become infected as the subject may already be bleeding.) And, as part of any risk assessment, Chief Constables must consider if other alternatives would be effective, such as Essex Police’s use of safety glasses.

  1. The public and police must be satisfied that spit hoods are necessary. The police operate by consent. They are not the army, nor do we have martial law. Some Chief Constables feel that the hoods are reminiscent of those used at Guantanamo Bay. The impact on community relations of using spit hoods in public and/or police stations, particularly among Black and Minority Ethnic (BME) communities, must be considered.
  2. As spit hoods are “classed as a use of force by a police officer” that force (both in initial use and ongoing when the arrested person is subdued) must be reasonable (subjectively and objectively) and proportionate. Chief Constables must consider if, and how, spit hoods can be used lawfully. The individual police officers involved will need to justify their use, which puts the onus on the police to ensure proper training. I am sure the Police Federation chiefs would agree that it is important to get this right to protect their front-line police officers from misconduct hearings, IPCC investigations, litigation, and potentially dismissal.

As I explained in the BBC Radio Essex interview:

“There can’t be any argument to justify the actions of those who are spitting…what the issue here is a matter of a balancing act…when we see that there is an argument to say ‘yes these spit hoods should be used in the required circumstances’ the difficulty is for the police officers to assess when that is appropriate or not.”

Essex Police Federation’s Steve Taylor suggested that “almost exclusively, it would be a reactive piece of equipment which would be placed over the head of a suspect who started spitting to prevent anyone else coming in to contact with further spit.”

While this “reactive” approach makes sense, something that concerns me is (again, from the interview):

“What can be confused is the act of spitting… if you have an individual who has been subject to PAVA captor spray, which is an incapacitant which causes constriction of the nasal passages, causes the production of mucus, and there is a natural reaction to remove that from the mouth and nose. That is not necessarily being directed at Police Officers as an act of spitting.”

This is what happened to Paul Smith, who was wrongfully arrested, assaulted, and subdued using a spit hood. With my help, Sussex Police paid him £25,000 compensation plus legal costs.

  1. The spit hood equipment must be suitable and fit for purpose. This includes considerations such as operational effectiveness, cost, safety, ease of use etc. There are numerous spit hoods on the market, including this one described as “In current use throughout UK Police Forces”, but none have been formally approved by the government.

Tweet: #Spit hoods are being rolled out by police forces on a piecemeal basis. It's time for government to act. https://wp.me/p1xJGh-1gq Source: @donoghuelaw

Government Role

I have some sympathy with the Chief Constables grappling with these complex issues and, in some cases, directly opposing their own Police Federation chiefs.

Given the difficulties is it any wonder that the Metropolitan Police suspended their trial of spit hoods and Essex Police bought spit hoods three years ago but chose not to use them? In a statement provided to BBC Radio Essex the force said:

“Spitting at a police officer is a deplorable act and anyone who does it can be prosecuted and imprisoned. Essex Police has no plans to introduce spit hoods for general issue and authority to use them can only be given by the Chief Constable or Deputy Chief Constable in exceptional circumstances. The safety of our police officers is paramount and other protective equipment such as safety glasses is available to be used as necessary.”

This is too big an issue for individual police forces to decide. I urge the government to get involved immediately. There should be a discussion, involving key stakeholders on both sides of the debate, about whether spit hoods have a place in a civilised society. Until then there should be an immediate halt on any more forces introducing these “barbaric” tools.

 

Contact solicitor Kevin Donoghue for legal advice on pursuing civil actions against the police here.

 

Three Ways Police Misconduct Victims are Denied Access to Justice

Photo of Kevin Donoghue, solicitor, who explains how access to justice is denied to police misconduct victims.

Kevin Donoghue, Solicitor, explains how police misconduct victims are denied access to justice.

By Kevin Donoghue, solicitor

On Tuesday, Baron Thomas, the Lord Chief Justice, felt compelled to state the obvious when talking about Gina Miller, the lead claimant in the “Brexit” hearings before the High Court. (Ms Miller wants the Court to determine if Parliament should have a role in triggering Article 50 of the treaty on the European Union.) Referring to people who disagree with her access to justice in this case, the Lord Chief Justice said:

“Before we start, there is just one observation I would like to make. The court was informed that the principal claimant in this case has been, again, subject to various emails and other communications. We have in this country a civilised way of dealing with things, and it is simply wholly wrong for people to be abusive of those who seek to come to the Queen’s courts. If this conduct continues, those who do it must appreciate that the full vigour of the law will be used to ensure that access to Her Majesty’s courts are freely available to everyone.” (my emphasis)

(Read the original comments in the full day transcript for 17 October here.)

I couldn’t agree more. In my experience as a solicitor who represents people in legal actions against the police I find that they are often subject to abuse and can be denied access to justice too. But unlike Ms Miller, my clients suffer abuse from people in authority, including the police and government. This is how.

1.      Abuse by police

In one of my recent cases my client Paul Smith (details used with permission) was wrongfully arrested and physically assaulted by police officers. (Read his story here.) The arresting officer attempted to cover up his misconduct by falsely claiming that Paul was “hostile and aggressive”. The police officer also said that my client ignored warnings that he would be arrested for a Breach of the Peace and that he struggled when arrested, so the police had to use handcuffs, PAVA captor spray, and a spit hood.

Fortunately, two police officers at the scene recorded the incident using body worn cameras. The footage was reviewed by supervisors at the police station and immediately exposed the arresting officer’s lies. Despite the clear-cut nature of the police abuse and misconduct:

  1. the arresting officer maintained his false version of events, even after Mr Smith was released, providing a statement which directly contradicted both my client and the police’s own body worn camera footage
  2. both the arresting officer and his employers, Sussex Police, failed to apologise for what the arresting officer’s supervisor described as “extremely unprofessional” behaviour which “brings the police into disrepute”
  3. after internal misconduct proceedings, the arresting officer was let off with “management action” (the lowest possible sanction) instead of dismissal.

Sussex Police’s conduct at various levels left Mr Smith with no alternative but to seek access to justice through litigation. Paul knew that this could be a risky and stressful process which could result in facing his assailants at trial. The force’s legal team’s handling of the case heightened this anxiety. They delayed matters by providing piecemeal disclosure of evidence and made inadequate offers of settlement. Despite Paul accepting £25,000 compensation, almost five times the original offer, the police’s treatment of this innocent man left a lot to be desired.

2.      Victim shaming

Joseph Goebbels, Adolf Hitler’s Propoganda Minister in Nazi Germany, is believed to have said:

If you repeat a lie often enough, people will believe it, and you will even come to believe it yourself.

This remains true today, especially when discussing the non-existent “compensation culture”.

In recent years the government has repeatedly shamed innocent victims to discourage them from bringing cases to court by peddling the myth of a “compensation culture”. For example, in the foreword to Lord Young’s 2010 report, “Common Sense, Common Safety”, then Prime Minister David Cameron said:

A damaging compensation culture has arisen, as if people can absolve themselves from any personal responsibility for their own actions, with the spectre of lawyers only too willing to pounce with a claim for damages on the slightest pretext.

This view was directly contradicted in the report by its author Lord Young, a die-hard Tory. He found no evidence of a “compensation culture”, saying that:

The problem of the compensation culture prevalent in society today is, however, one of perception rather than reality. (read more here)

Buying in to the myth, the media picked up on the Prime Minister’s inflammatory comments in the foreword rather than Lord Young’s more measured and accurate words, which were buried on page 19.

The bogus “compensation culture” came up again when I was interviewed on BBC radio discussing Essex Police’s claims payout record. In this follow-up blog post I suggested that the focus should be on the police’s conduct rather than compensation awards.

Sensing an opportunity to avoid scrutiny and save money, the police repeat the party line and pursue victim shaming in the media. For example, in 2013 Norfolk’s Chief Constable Phil Gormley said in a BBC Radio Norfolk interview that it was “disappointing” that the Police Federation supported one of his officers for bringing a compensation claim against her employers after an accident at work. He went on to describe a “corrosive compensation culture” which “generates a something for nothing attitude”.

By making victims of police misconduct feel guilty about fighting for their constitutional rights they suffer again. They feel ashamed for claiming compensation, and when they do seek access to justice their claims are denied and/or delayed, adding to their pain.

This cynical approach seems to be working. Compensation claims, including those against the police, are falling. For example, Essex Police paid out less in compensation claims to the public in 2014 than in previous years. While cost savings are welcome, the wider issue for society is that victim shaming to discourage people from seeking access to justice means that police misconduct will go unchecked, leading to more instances of police abuse.

3.      Government Policy

Perhaps more than anyone, the government has ensured that access to Her Majesty’s courts is not, to quote the Lord Chief Justice, “freely available to everyone”.

Changes to court fees mean that the civil courts (including the civil litigation courts which hear actions against the police) are now subsidising the criminal courts to fill a funding gap. This means that it costs far more to issue court proceedings and take claims to trial. The dramatically increased court fees include “enhanced” fees where the costs are greater than the hearing involved. The overall impact is a “poll tax on wheels” denying access to justice to those least able to afford it, resulting in a Conservative-led select committee describing court fees as an unjustified tax which prevents people from obtaining justice.

Despite this clear warning, court fees remain prohibitively high for many genuine claimants. Again, as with the “compensation culture” myth, even when fellow Conservatives contradict them, the government carries on regardless.

The increase in court fees comes on the back of the damaging effects of the Legal Aid, Sentencing, and Punishment of Offenders Act (2012). I explained here how this one law drastically changed the way civil compensation claims were brought before the courts, adding a layer of cost and risk which can put off legitimate claimants. One reason is that Qualified One Way Costs Shifting, which can give costs protection in personal injury claims, does not apply to all civil claims, and, in particular, actions against the police.

In March 2016 the Civil Justice Council, an Advisory Public Body responsible for overseeing and coordinating the modernisation of the civil justice system, recommended extending Qualified One Way Costs Shifting to all actions against the police (including those which do not directly involve personal injury such as malicious prosecution or discrimination claims). It said:

There are strong, if not compelling, arguments of principle – based on access to justice and on the asymmetry of the relationship between the parties – weighing in favour of extending the scope of QOCS protection (or something very similar) to claims against the police.

And

Principled arguments for not doing do not appear to have been made out.

Predictably, the government has failed to act, leaving many victims of police misconduct unwilling or unable to seek access to justice at court.

Access to Justice Denied

The Lord Chief Justice was right to challenge the people who abused Gina Miller, the claimant in the Brexit case, and attempted to prevent her seeking legal redress. I urge the police and government to recognise that his rebuke could equally apply to them.

 

Kevin Donoghue is the Solicitor Director of Donoghue Solicitors, a law firm which specialises in civil actions against the police.

3 Ways the Police Could Improve Their Body Worn Cameras Policy

Photo of Kevin Donoghue, solicitor, who explains 3 ways the police can use body worn cameras to restore public confidence.

Kevin Donoghue, solicitor, explains 3 ways the police can use body worn cameras to restore public confidence.

By Kevin Donoghue, solicitor

A University of Cambridge study confirmed that, where police body worn cameras are used appropriately, the number of complaints against police officers by members of the public reduced by 93%.

Despite this remarkable statistic, current police policy towards body cameras means that, UK-wide, police complaints are unlikely to be reduced so drastically. Here I explain how police policy towards body worn cameras undermines public confidence and some possible solutions to improve it.

What the University of Cambridge Study Found

The year-long Cambridge study, which included almost 2,000 police officers across six forces in the UK and United States, found that complaints against the police went from 1,539 in the previous year to 113 in the year of the trial.

Discussing the matter on the Victoria Derbyshire show, Home Affairs Correspondent Danny Shaw explained the reduction in complaints by saying that “It looks as though the police are modifying their behaviour. They know they’re being recorded every single step of the way, so there is some kind of subconscious decision to act more professionally.”

He also pointed out that the cameras may also have a calming effect on the public. People know the cameras are switched on so anything they do or say could be used in evidence against them.

The lead researcher, Barak Ariel, said, “I cannot think of any (other) single intervention in the history of policing that dramatically changed the way that officers behave, the way that suspects behave, and the way they interact with each other.”

Chief Inspector Ian Williams of West Yorkshire Police, one of the forces included in the study, described the body worn cameras as “excellent” and said there were many benefits, including less time spent at court, avoiding the need to call vulnerable victims to give evidence at court, and the increased detection rate.

Body Worn Cameras Policy Failings

It appears all sides agree that body worn cameras are a good thing for both the police and public. They help promote transparency, trust, and public confidence, which are essential in a society where the police work under Robert Peel’s “9 Principles of Policing”, the second of which is:

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.

And in my role as a solicitor who specialises in civil actions against the police I find body worn camera evidence invaluable. (For example, when proving police lies in one client’s case to justify misconduct.)

But there’s a problem: police and government policy on body worn cameras is falling short in three key ways, all of which undermine public confidence:

Issue 1: The police control when cameras are operating and their technical capabilities

In the Cambridge University study, the cameras were turned on all the time officers were on shift, (typically between 8-12 hours) except during agreed circumstances, such as breaks, travelling between calls for service, and when dealing with certain incidents such as matters involving serious sexual assaults.

By contrast, current policy detailed in the 2014 College of Policing guidance on Body Worn Video, gives officers the power to turn the cameras on and off at will. As the study’s authors point out, “Leaving the decision to switch on the camera during an encounter and not before officers begin engaging with a citizen may backfire (Ariel et al., 2016a). It also defeats one of the major purposes of the camera: to record the interaction from the officer’s perspective, from beginning to end, therefore providing crucial evidence of the decision-making processes that have led him or her to exercise use of force.”

I previously wrote about my concerns with giving officers this power. In that blog post I noted how Metropolitan Police Commissioner, Sir Bernard Hogan-Howe, defended the police’s approach. He claimed that leaving cameras on would be “too intrusive”.

I disagree. Sir Bernard Hogan-Howe’s concerns about leaving the cameras running at all times (except in specific circumstances) have been proven unfounded by the Cambridge University study.  And allowing police officers to control when they activate body worn cameras gives the impression that the cameras will be used selectively and undermines public confidence.

Also, while some body worn cameras have a 30-second pre-record function, to capture footage from before the officer starts recording, government policy from the Home Office Centre for Applied Science and Technology does not require this because “The National Policing Lead has decided that these features are not currently required.” (In 2014 the National Policing Lead for Body-Worn Video was Chief Constable Andy Marsh of Hampshire Constabulary.)

Pre-recording can be useful in showing police officer behaviour before an incident escalates. In my experience, things said and done in the minutes, not just seconds, before an arrest can be extremely valuable in proving liability in police misconduct cases.

It can’t be right that the police themselves set policy on important camera features such as this. The pre-record technology is widely available. All forces should use it and manufacturers should be pressed to produce equipment with at least 5 minutes of pre-recording built-in. Axon, a division of Taser, the manufacturers of “stun guns”, already sell a body camera with a 2 minute pre-record feature. Given reductions in the cost of memory a 5 minute pre-recording feature is not unrealistic.

Not using cameras at all appropriate times and with sufficient pre-recording features gives the impression that police forces have something to hide.

Issue 2: Police keep body camera footage for a very short period

In my earlier blog post I noted how Rachel Tuffin of the College of Policing said that there were issues with data storage. As a result, guidance from the College of Policing means that forces keep body worn camera footage for up to 31 days, the same length of time as police station CCTV video. The College of Policing suggests this is a maximum length of time following the case of Wood v Commissioner of Police for the Metropolis (2009). Some forces may delete footage sooner.

On the whole, the public is unaware of the short window of time to request that this (potentially vital) evidence be preserved. As a result, complaints and claims against the police can be harder to investigate.

Despite the data protection issues, given the significant benefits, it’s time the police invest in technology to store footage for at least 12 months.

Issue 3: Police have power to edit footage

Another issue highlighted in the Victoria Derbyshire programme was that the police officers wearing the body worn cameras have the power to edit footage themselves. As my client’s case shows, some officers will not care what the footage shows, but others might. While any edit creates a new file, rather than deleting the original footage, it’s easy to imagine a situation where the original footage is mysteriously lost or erased, leaving only the edited (and favourable to the police) footage available.

To avoid suspicion, officers should not have the power to edit their own camera footage unsupervised.

Recommended Action

It appears that the University of Cambridge study was an unqualified success, both in terms of its application and results. If the police nationwide are truly committed to reducing complaints and restoring public confidence, I urge forces to implement these common-sense recommendations:

  1. Ensure body cameras have a 5 minute pre-record feature and that they are switched on at all times when officers are on shift, except in certain circumstances described above
  2. Extend the video retention period to at least 12 months
  3. Do not allow officers to edit their own body worn camera footage unsupervised.

Chief constables have all the proof they need, and, if they put their minds to it, the means to make things happen. Now it’s time to act.

Read more about civil actions against the police on my firm’s website.

How Can Police Justify the Use of a Spit Hood?

Photo of Kevin Donoghue, a solicitor who specialises in actions against the police, discusses spit hood use.

Kevin Donoghue, a solicitor who specialises in actions against the police, discusses spit hood use.

By Kevin Donoghue, Solicitor and Specialist in Civil Actions Against the Police

In an embarrassing climb-down reported in The Independent this week the Metropolitan Police (the “Met”) suspended plans to trial spit hood masks after pressure from human rights campaigners.

The news brought attention to the fact that spit hoods are presently used by forces throughout the country. Here I discuss the controversy by referring to one of my client’s cases to explain how the police use these masks.

Why the Metropolitan Police Suspended the Spit Hood Trial

The Met said it planned to use the controversial mesh masks, which it calls “spit guards”, to meet a “duty of care owed to officers” and protect them from spitting and biting. The proposals allowed for the use of spit hoods in 32 police station detention areas but not in public or on London’s streets. After announcing the plans on Tuesday morning (6 September) the force backtracked later that day saying “The Metropolitan Police Service has listened to concerns and will consult further before starting any pilot.”

It appears that the Met quickly changed its mind in the face of pressure from organisations such as Liberty, whose campaign group director Martha Spurrier, described spit hoods as “primitive, cruel and degrading” tools “that inspire fear and anguish” and “belong in horror stories”. Take a minute to watch this video and you’ll see what she means.

Widespread Spit Hood Use

The Metropolitan Police is Britain’s biggest force, employing more than 30,000 officers and nearly 50,000 people in total, so it is not surprising its plan to use spit hoods caught the public’s eye. What may be less well-known though, is that many other forces, including British Transport Police, West Mercia Police, and Sussex Police, already have spit hoods, which were used 513 times last year. And unlike the Metropolitan Police’s plan to limit spit hood use to police stations, because there is no national police policy on their use, other force officers are free to use them in public (as shown in the video at a train station above). The Police Federation, the police’s union, wants spit hoods to be used across all forces, but it’s up to the Chief Constables of each force to decide if they want their officers to be issued with them. Some of the larger forces, including West Midlands Police and Greater Manchester Police have yet to approve their use, perhaps because, as The Guardian says, some police chiefs have privately expressed concerns that they are reminiscent of hoods used at Guantánamo Bay.

The Chief Constables are right to be cautious. As well as the distressing “optics” of using spit hoods in public, there are very real concerns that their use could be a breach of a person’s human rights, particularly Article 3 of the Human Rights Act (1998) (“No one shall be subjected to torture or to inhuman or degrading treatment or punishment”). Even if that argument is not accepted by the courts, victims of spit hood use suffer physical and mental injuries which could justify a police complaint or actions against the police compensation claim, draining valuable time and resources from already stretched police forces.
Tweet: How can #police justify the use of

Sussex Police Use of Spit Hoods

So how do the police justify the use of spit hoods? Consider Paul Smith’s experience.

I previously wrote about Mr Smith (details used with permission) in a blog about body worn cameras (read it here– I referred to him as Mr A as his case was ongoing). Paul was arrested by Sussex Police, one of the forces which uses spit hoods, for

  • breach of the peace,
  • obstructing the police in the execution of their duty, and
  • resisting arrest

because he objected to the way police treated him for a minor traffic infringement.

After parking illegally outside Argos Mr Smith became upset when a female police officer and her male special constable colleague refused to let him go without penalty and took their time issuing a ticket.

The officer interpreted his agitation as aggression and called in a “10/20”, an emergency request for assistance. Back-up quickly arrived.

One of the back-up officers, PC X, looked like a “doorman or enforcer of some kind” and was dressed in a short sleeve shirt and black leather gloves. He took the lead and deliberately tried to provoke my client into challenging him. The officer became increasingly confrontational and accused Paul of being aggressive, despite my client remaining passive. After the officer called Mr Smith “a dick” he arrested my client for a breach of the peace. The officers manhandled him to the ground and one of them sprayed P.A.V.A. captor incapacitant spray at Paul’s face. (P.A.V.A. captor spray, also known as “pepper spray”, is absorbed through the mucus membranes of the eyes, nose, and mouth, and causes extreme pain similar to scalding heat as well as a reflexive narrowing of the airways.) Understandably, Paul tried to spit the spray out. The police put a spit hood over Mr Smith’s head, and handcuffed him to the rear.

With the spit hood in place Paul had difficulty breathing and clearing his airway. His pain and discomfort were greatly prolonged until the hood was removed at the police station.

PC X gave a written statement to justify his actions, claiming that Paul was aggressive and abusive. Unfortunately for him, two of the police’s own body worn cameras recorded the event. They exposed PC X’s false statement and I helped Paul win £25,000 compensation plus full legal costs for his actions against the police claim. Shamefully, PC X did not apologise, nor was he disciplined other than “management action”, a “slap on the wrist”.

Warning

There is no doubt that the Metropolitan Police has done the right thing by delaying its trial of spit hoods. Unfortunately, many other forces are already using them, with serious consequences for innocent victims of police misconduct, including this 11-year-old girl, who was hooded, handcuffed, and detained for more than 60 hours by Sussex Police (yes, them again). (In a worrying echo of Paul Smith’s case, Sussex Police also issued the officers in that case with mere “management advice”.)

I urge the Police Federation to think again before encouraging widespread adoption of these “barbaric” tools.

 

Kevin Donoghue is a solicitor who specialises in civil actions against the police. Contact him at www.donoghue-solicitors.co.uk/actions-against-the-police.

 

 

Why I’m Making a Parachute Jump to Help Heidi Roberts

Photo of Hannah Bickley of Donoghue Solicitors. She is making a sponsored parachute jump to help Heidi Roberts.

Hannah Bickley is making a sponsored parachute jump to help Heidi Roberts.

By Hannah Bickley, GCILEx

I’m scared of heights. Even standing on a ladder frightens me. So, why am I going to make a parachute jump out of a plane at 15,000 feet? Because Heidi Roberts needs help.

What Happened to Heidi Roberts?

Heidi is a family friend with breast and lung cancer. She’s only 36 but has already been through so much. After developing aggressive breast cancer in 2011 she had chemotherapy. Sadly, it failed and the cancer spread to her lungs. Heidi, who had to leave her job as an intensive care nurse, tried everything, including clinical trials. But after four years of treatment doctors told her there was nothing else they could do. She has recently been told that she has months to live.

Determined to beat this terrible disease, Heidi and her husband Paul researched alternative therapies. After countless hours they found Hallwang Private Oncology Clinic in Germany which offers PD-1 immunotherapy, a form of treatment with a good success rate. Unfortunately, this treatment is not available in the UK and has to be paid for privately.

Public Support

To get started the clinic needs an initial payment of £50,000. Heidi’s family and friends rallied round and began raising money to fund the treatment. They set up a gofundme page and organised sponsored head-shaves and other events. After only a few months they had raised about £12,000. I offered to help and somehow (I still don’t know how!) agreed to sign up for a sponsored parachute jump. Earlier this month I set up a justgiving page and invited sponsors to support me.

After I signed up for the parachute jump the media learned about Heidi’s plight. She appeared on ITV’s Granada Reports and donations flooded in from all over the world. Thanks to the public’s generosity this genuine, lovely woman, has raised the £50,000 needed for her initial treatment.

So, am I backing out? No way! On 25th September, I am going to Lancaster to make the parachute jump to help Heidi pay for travel, accommodation, and any future treatment. The £50,000 raised so far means she can start treatment in Germany but Heidi and her husband Paul still need to get there and have somewhere to stay.

Anyway, I have sponsors expecting me to go through with it, so couldn’t back out even if I wanted to. And compared to the bravery Heidi has shown, jumping out of a plane and falling to the ground at 120mph is nothing!

If you want to help me raise money for Heidi please sponsor me at: https://www.justgiving.com/crowdfunding/hannah-bickley. Thank you.

 

Update- I did it!

I’m proud to say that I successfully jumped from a plane on Sunday. Here’s the proof:

Photo of Hannah Bickley landing after her parachute jump.

Hannah Bickley coming in to land.

Photo of a relieved Hannah Bickley after her parachute jump.

A relieved Hannah Bickley after her parachute jump.

Photo of a certificate of achievement.

Certificate of Achievement.

 

 

 

 

 

 

 

 

 

 

 

 

And thanks to many generous donations, some of which did not go on the justgiving website, I beat my goal of raising £400 for Heidi Roberts. Thank you to everyone who sponsored me and helped me make the parachute jump. It was an amazing experience for a very worthy cause.

 

 

 

Five Tips to Find the Best Solicitors to Sue the Police

Photo of Kevin Donoghue, solicitor, who has five tips to help you find the best solicitors to sue the police.

Kevin Donoghue, solicitor, has five tips to help you find the best solicitors to sue the police.

By Kevin Donoghue, solicitor

It can be hard to find the best solicitors to sue the police for you. Let me help with unbiased insider advice only a lawyer who specialises in actions against the police can give.

Unbiased? Really?

As you can tell from our website, we want everyone who might bring an actions against the police claim to be as informed as possible. But we know that giving you this guidance isn’t everything. You still have to deal with a solicitor one-on-one, and after reading these five tips you might decide to use another firm of lawyers. If you do, that’s fine by me because finding the best fit for you and your claim is the most important thing, even if that’s with another solicitor.

Why People Sue the Police

Suing the police is a decision you don’t want to rush because there’s a lot at stake. Depending on the case you might be seeking

  • compensation,
  • an admission of liability,
  • removal of your DNA and personal data,
  • correction of Police National Computer records,
  • satisfaction if your police complaint was ignored, or
  • some other kind of justice.

(Read our page on remedies in claims against the police to find out more.)

This makes “actions against the police” claims (as they are known in legal circles) unique. For that reason, your solicitor should have special skills and qualities.

Five Questions to Find the Best Solicitors to Sue the Police

Kevin Donoghue's five tips to find the best solicitors in actions against the police claimsIn my opinion, there are five things worth thinking about to get the best solicitors to sue the police:

  1. What do you need?

I’ve put this first on purpose. It’s important to find the best solicitors to sue the police for you. Some questions you might want to ask yourself are:

    • How am I going to pay for a solicitor to represent me? Am I eligible for legal aid (sadly, most people aren’t)? If so, do I want to use a legal aid lawyer? If not, does the solicitor offer conditional fee “no win no fee” agreements, or accept clients on a “private client” or before-the-event insurance funded basis?
    • Is it important to me that I use a local solicitor because I need face-to-face meetings during office hours? Or doesn’t the solicitor’s location matter because I am more comfortable with letters, email, phone, occasional skype meetings etc., most of which can be dealt with at other times.
    • Should I use a firm which only represents claimants? Or do I mind a firm which also represents defendant insurers?
    • Would I prefer a “big firm” experience (where I may have numerous lawyers handling my claim under the guidance of a supervising solicitor), or a “small firm” one (where I am more likely to work with an individual solicitor)?
    • Anything else that matters to me.

Tweet This: To find the best solicitor to sue the #police start by asking yourself what you need, says Kevin Donoghue, #solicitor.

2. Are the solicitors you’re researching genuine experts in bringing compensation claims against the police?

Start narrowing your options when you know what you need from your solicitor. Check out the Law Society’s Find a Solicitor service for suggestions. It lists over 150,000 solicitors, and the information held there can help you with your initial search. (For an example, here’s my listing.) You could also ask family, friends, and other lawyers (if you know any), look at your potential solicitors’ websites, social media profiles, read case reports, etc. Find out as much as you can online about their skills before making contact.

This matters because some so-called “experts” in actions against the police are anything but. Funding changes to personal injury law which came into effect on 1 April 2013 have resulted in some lawyers, who previously only dealt with accident claims, branching out into police claims. While there is often an overlap between the two (because claims against the police often include personal injury assault claims), the law in civil actions against the police is extremely complex and different.

You’ll want someone who really knows their stuff or you might risk losing your claim. (Read what happened to a man who initially instructed a personal injury firm to handle his actions against the police claim here.)

  1. Do you think you can you work with the solicitor?

Taking action against the police is not easy. The police are very well funded (by the taxpayer!) and their experienced defence lawyers are determined to protect the reputation of their police force employers and the officers involved. The law and sympathy from the courts is often on the side of the police. Cases can take years and the financial stakes are high.

Bearing this in mind it is important to find a solicitor you can trust and work well with. Your solicitor will assemble a team of lawyers, experts, and other professionals dedicated to helping you win your claim. You will be expected to play your part with helpful co-operation and support.

Ask yourself if you think you will get on with the solicitor, potentially for years. Again, a personal recommendation will help, as will your online research. Read their online reviews, blog (if they have one), and social media posts. If the solicitor has done media work (tv/ radio) see if you can get hold of that. (Read this blog post for more on personality issues. They go both ways.)

  1. What’s their track record?

Even though cases rarely get to court, ideally, you will want a solicitor who has won at least one claim against the police at trial. This shows that they can spot a good case, and have the courage of their convictions to back it all the way. If they haven’t won any cases at trial, consider their overall experience and record of success.

Again, you could research any cases they report on their firm’s websites. I also suggest that you do a “Google” search to see if they come up in media reports, as some actions against the police solicitors’ websites are not kept up-to-date.

  1. Are they members of the Police Action Lawyers Group?

The Police Action Lawyers Group (“PALG”) was set up in 1991 and is a national organisation made up of solicitors, barristers, and other lawyers. This voluntary group shares information and best practices to help lawyers working in this niche area of law. Regular communication ensures that members have access to the latest legal decisions, influence government policy proposals, share knowledge with other organisations (such as Liberty and Justice) etc. This helps PALG members represent your interests as a claimant more effectively.

PALG membership is not essential but, in my opinion, it’s a useful indicator of your potential solicitor’s level of interest and involvement in compensation claims against the police.

(Note: Don’t use the PALG website for research on members. It links only to the government’s legal aid adviser page. PALG members also include lawyers who do not offer legal aid. Read why here.)

More Help to Sue the Police

Armed with these tips and the information on our site, you will be able to

Good luck!

 

Contact me for help with your actions against the police claim on 08000 124 246 or complete the online form on the Donoghue Solicitors website.

 

Will Police Take Complaints Seriously With Theresa May in No.10?

Photo of Kevin Donoghue, solicitor, asks if police complaints will be taken seriously with Theresa May as Prime Minister.

Kevin Donoghue, solicitor, asks if police complaints will be taken seriously with Theresa May as Prime Minister.

By Kevin Donoghue, Solicitor

Today, after an unprecedented few weeks in politics, Home Secretary Theresa May becomes Prime Minister. Her public criticism of the police, especially in a scathing speech to the Police Federation in 2014 in which she said some officers displayed “contempt for the public”, raised hopes that this would lead to a cultural change in policing. Sadly, it didn’t work, so now Mrs May’s Policing and Crime Bill is proceeding through Parliament to try to force change. In particular, our politicians will debate the police complaints system as follows:

Police complaints and inspection

Part 2 of the Bill would implement many of the proposals in the Government’s Improving Police Integrity consultation. It would reform the system of police complaints in the following ways:

  • A major role for Police and Crime Commissioners (PCCs) in the handling of police complaints
  • Changes to the handling of complaints aimed at making the system easier to follow and more transparent
  • Changes to the role and powers of the Independent Police Complaints Commission (IPCC) to reinforce its independence from police forces
  • The introduction of ‘super-complaints’ to allow certain advocacy groups and charities to raise concerns over troubling systemic issues in policing.

But will this legislation be enough to change the police’s attitude to complaints? Here’s my view.

One Client’s Experience of the Police Complaints Process

From The Sunday Post: A Northumbria Police spokesman said a full investigation had been carried out into claims of excessive force and unlawful arrest. That probe cleared the officers of any wrongdoing.

Gary Wilson, interviewed on BBC Radio 4: They basically said I was a liar, you know.

My client, Gary Wilson (details used with permission), was featured in a Radio 4 report “Police Complaints: A Fair Cop?” (listen to it by clicking on the link). In the interview he explained how Northumbria Police mistreated him.

Gary was trying to help the police coax his cousin off a roof when officers decided to arrest him for a bogus breach of the police. They assaulted, unlawfully arrested, and falsely imprisoned him for two days, before he was released at the Magistrates’ Court. He missed his son’s second birthday and was upset at his treatment, so made a formal complaint.

As usual for this kind of matter, the complaint was dealt with by Northumbria Police themselves (read our page on complaints against the police to find out why).

Unsurprisingly, Northumbria Police’s investigators sided with their own officers. Gary contacted me for advice because the police refused to apologise. I specialise in actions against the police and helped him win £7500 plus full legal costs. (Read how here.) Despite this settlement, he still feels aggrieved. As he pointed out in the interview, “I’m still waiting for that apology today.”

Fundamental Problems

It seems that, for the police, sorry is the hardest word. This is explained in the rest of the Radio 4 report which addresses many issues, including:

  • Just 1 in 10 of the 35,000 police complaints are upheld (on the latest figures when the report was filed)
  • Professor Steve Savage of Portsmouth University thinks that the police complaints system is different to consumer complaints handling because it is rooted in the police disciplinary process so “that there’s still an ethos that what the complaints investigation is about is determining blame” and “the concern is, is there evidence that this officer can be potentially responsible for misconduct?”. This different (and high) standard means that even legitimate complaints against the police are dismissed.
  • The Policing and Crime Bill proposes an overhaul of the police complaints system by putting investigations in the hands of Police and Crime Commissioners. One Commissioner said this will not work without giving them sufficient powers and resources to investigate, secure evidence, interview officers etc. (powers which the police’s Professional Standards Department (“PSD”) investigators presently have).
  • The Independent Police Complaints Commission (“IPCC”) uphold nearly half of all complaints when people challenge the PSD’s findings. These aren’t just to make complainants feel better. Dame Anne Owers, Chair of the IPCC explained that “we rarely uphold complaints just on technicalities”.
  • Dame Owers bemoaned the current system which requires the IPCC to refer complaints back to the same police force for re-assessment when it upholds an appeal. She said: “sometimes they get it wrong in the second place as well. And at the moment the system can produce a kind of roundabout where it’s just going backwards and forwards.”
  • She also complained that when the IPCC compels a police force to hold a misconduct hearing against one of their own officers, the force itself presents the case. The conflict of interest is obvious, and she says “That problem will only be resolved if we ourselves can present our own case.”
  • The police, represented in the Radio 4 report by Deputy Chief Constable Alan Goodwin (National Police Lead for complaints and misconduct), agreed that “in an ideal world” the police would not investigate complaints against their own staff.
  • But on other matters he was less forthcoming. For example, the DCC didn’t “want to get into a technical discussion about what an appeal actually constitutes”, when he could have simply referred the reporter to the Appeals section of Schedule 14 of the Police Reform and Social Responsibility Act 2011).
Photo of Theresa May, Prime Minister.

Theresa May, Prime Minister.

Police Culture

In February 2015 I wrote about the broken police complaints system in my blog post Five Ways to Cut Police Complaints. I was struck by the statistic that “you have a reasonable 1 in 2 chance of a successful appeal to the IPCC, but a pathetic 1 in 5 chance with a Chief Officer.” DCC Goodwin said in the Radio 4 report that this “can simply be a difference of opinion”. Maybe in some cases; but surely not all?

His comments in the radio programme fit with my earlier observation that senior police officers seem to focus on the cause of police complaints (the system) and not the symptom (poor policing standards and outdated attitudes). In effect, they try to deflect attention from their own failings, for example, blaming “an overly cautious approach to recording police complaints” and the non-existent “compensation culture”.

The police’s attitude to complaints is an ongoing cultural and systemic problem which successive governments have failed to manage, despite legislation. A year and a half after writing the “Five Ways” post I have seen no evidence of change. I hope to be proven wrong, but doubt the influence of the Policing and Crime Bill or the new Prime Minister will change police culture to improve the way they deal with complaints.

 

 

Read our page about making complaints against the police for more information, or contact us via the online form on this page.

 

Image credit: Home Office

Why Lawyers Object to the Investigatory Powers Bill

Photo of Kevin Donoghue, a solicitor, who discusses why lawyers object to the Investigatory Powers bill here.

Kevin Donoghue explains why lawyers object to the Investigatory Powers Bill.

By Kevin Donoghue, Solicitor

Today in Parliament MPs are to debate the second reading of the Investigatory Powers Bill. I believe the Bill, as currently drafted, is not fit for purpose and joined with more than 200 other leading lawyers in writing a letter to The Guardian newspaper outlining my objections. This is why.

What is the Investigatory Powers Bill?

The Investigatory Powers Bill is described on the UK Parliament website as:

A Bill to make provision about the interception of communications, equipment interference and the acquisition and retention of communications data, bulk personal datasets and other information; to make provision about the treatment of material held as a result of such interception, equipment interference or acquisition or retention; to establish the Investigatory Powers Commissioner and other Judicial Commissioners and make provision about them and other oversight arrangements; to make further provision about investigatory powers and national security; to amend sections 3 and 5 of the Intelligence Services Act 1994; and for connected purposes.

The Conservative government introduced the Bill in the House of Commons on 1 March 2016. At this first reading stage there is no parliamentary debate about the substance of the Bill. That comes at the second reading stage, today.

After the debate the Speaker calls for objections. If there are none, the Bill proceeds through second reading without a vote. If Members disagree, a vote is taken.

If the Investigatory Powers Bill passes the second reading it progresses to the Committee stage, before proceeding to a third reading.

Why Legal Experts Object to the Investigatory Powers Bill

The Bill, as drafted, fails to meet international standards for surveillance powers.

This is because it:

  1. gives public authorities, such as the police and security agencies like GCHQ (the government’s monitoring agency), generalised (as opposed to targeted) access to the contents of electronic communications such as emails and digital records. Consequently, the Bill’s use of “bulk interception warrants” and “bulk equipment interference warrants” may be illegal.
  2. allows for “targeted interception warrants” to apply to groups of people, organisations, or premises instead of applying to specific individual targets.
  3. does not include a “reasonable suspicion” requirement. This means that surveillance could be used on people, organisations, or premises where no criminal involvement or threat to national security is present.

If the Bill is passed, the effect of these proposals is to allow the police and security agencies unfettered access to our most private communications, including emails, phone calls, medical records, bank statements, etc.

It may also lead to expensive and time-consuming legal challenges and further Parliamentary reform.

Global Perspective

Because our right to privacy in the UK is under threat the UN’s special rapporteur on privacy criticised the UK government in a report to the UN Human Rights Council. He said that the UK has a leading role on the world stage and ought to “desist from setting a bad example to other states by continuing to propose measures, especially bulk interception and bulk hacking” which run counter to recent European court judgments and “undermine the spirit of the very right to privacy”.

I couldn’t agree more. I urge Parliament to carefully consider the implications of this wrong-headed Bill. It must be fundamentally changed at this stage to ensure that any future Act at least meets international standards, and that the UK’s position as a leading democracy is not undermined.

 

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