Do Taser Assault Victims Suffer Miscarriages of Justice?

Photo of Kevin Donoghue, solicitor. Taser weapons have serious effects and their use may lead to miscarriages of justice.

Kevin Donoghue, solicitor, considers if Taser stun-guns result in miscarriages of justice in this blog post.

By Kevin Donoghue, solicitor

A recent study in America suggests that Taser “stun-guns” cause short-term dementia-like effects in victims.

This raises questions about their use and, in particular, whether miscarriages of justice occur when the police question suspects shortly after using the weapons.

Independent Taser Study

The study, reported by Drexel University, and funded by the U.S. Department of Justice, is reported to be the first time the Taser weapon has been tested in a clinical trial outside of those set up by Taser International, the company that develops, makes, and sells them.

142 young people were tested. They were separated into four groups:

  1. 37 people in the control group did nothing
  2. 32 hit a punching bag (to simulate the excited physical state they might feel during a police incident)
  3. 35 people received 5 second Taser shocks
  4. 38 hit the punching bag AND received the 5 second shocks.

One of the report’s authors, Robert J. Kane, PhD, said that the participants were subjected to a “battery of cognitive instruments” (tests) at various times:

  1. At the preliminary screening stage
  2. Right before treatment exposure (varied depending on group)
  3. Immediately after treatment
  4. One hour later
  5. One week later.

Their test scores were compared within their own groups, and across all four groups, to compare any changes in cognitive functioning.

The most significant result came on the Hopkins Verbal Learning Test (“HVLT”). This test assesses verbal learning and memory and can show anything from mild learning difficulties to dementia. The study participants were asked to learn, then recall, a series of 12 words over different times.

Before using the Taser, the average HVLT score for each group was 26, just above the national average. Afterwards, a quarter of both Taser groups (3 and 4) scored below 20, giving them the average cognitive functioning of 79-year-old adults. The decline in cognitive functioning was said to be “comparable to dementia”.

The Taser caused statistically significant reductions in verbal learning and memory for, on average, less than an hour. And Michael D. White, PhD, who co-authored the report, said that “our test administrators could clearly observe the difficulty many participants had with the HVLT after Taser exposure.”

As well as these scientifically provable changes, the researchers found that the use of a Taser also caused “significant negative change in several subjective state self-measures, including concentration difficulty, anxiety level and feeling overwhelmed”.

Dr. Kane said, “Being shocked had a traumatic effect on some participants. Some were emotionally debilitated by the experience.”

He also pointed out that the test subjects were not typical of Taser assault victims. They were young, healthy, used to taking tests, drug and alcohol-free. They were also in a controlled environment (a hospital) with medical staff on hand, and understood that they were taking part in a scientific study.

He said, “We would expect ‘typical’ suspects – who may be high, drunk or mentally ill and in crisis at the time of exposure – to experience even greater impairment to cognitive functioning as the result of Taser exposure.”

Consequences of Taser Use

The results of the study have significant implications for the public, police policy, and judicial procedures.

Tasers are used by law enforcement world-wide, including the UK. The Metropolitan Police use the X26 Taser and describe on the Force’s website how “When fired Taser delivers a sequence of very short high voltage pulses that result in the loss of voluntary muscle control causing the subject to fall to the ground or freeze. In the X26 the voltage peaks at 50,000 volts…”.

I previously wrote about the worrying increase in Taser use here: How Police Taser Use is Failing Us All. I was concerned when Chief Superintendent Paul Morrison, Head of Operations Command at Sussex and Surrey Police, discussed a case involving the use of a Taser on 14-year-old girl and described the Taser as “a low level of force” which was preferable to a baton.

Nothing could be further from the truth. Tasers are potentially deadly weapons and should only be used as a last resort. They have serious physical, emotional, and (we now know) mental effects.

Miscarriage of Justice

In addition, the Drexel University report opens up another potentially life-changing risk: miscarriages of justice.

The police must read the following caution before questioning someone about a crime:

“You do not have to say anything. But, it may harm your defence if you do not mention when questioned something which you later rely on in court. Anything you do say may be given in evidence.”

That’s 37 words, more than three times the number in the Hopkins Verbal Learning Test which the Taser study used to test cognitive impairment. If fit, healthy, sober, above-average adults had dementia-like effects trying to learn and recall 12 words after being Tased, what chance would they have with 37? More importantly, how would the “typical” suspects mentioned by Dr. Kane cope?

Having a caution read to you is not the same as understanding it.

The Taser victim may:

  • not understand the caution or be able to think it through;
  • waive their rights to speak to a solicitor or have one present in an interview;
  • be more open to persuasive interview techniques; and
  • give inaccurate information.

Ultimately, the evidence gained might wrongly prove their guilt at court, resulting in a wrongful conviction and miscarriage of justice.

Custody Record Comments

After using a Taser, the police do not have to wait a minimum period of time before questioning someone. Provided an officer has read the caution to a Taser victim suspect, the police can start the interview immediately.

Because the majority of Taser victims in the study recovered from the cognitive effects within an hour, the report’s authors suggest delaying the interview to avoid potential miscarriages of justice. “What would it cost police to wait 60 minutes after a Taser deployment before engaging suspects in custodial interrogations?” they say.

That alone might be good enough in the USA. In the UK we have other issues.

This is because, in my experience as a solicitor who specialises in civil actions against the police, it is unlikely that a Taser victim would be interviewed within an hour. After being Tased, arrested, cautioned, taken to a police station, booked in, processed, and seen by a medic, more than an hour would normally have passed. The majority of people would have shaken off the dementia-like effects.

But the Custody Record is often filled out within that time, as it is started when the suspect is presented before the Custody Officer at the police station. It is a very powerful tool in the prosecution’s hands as it is a contemporaneous record which can be relied upon at court.

And it is more than just a record of detention. There are two sections where the suspect’s comments are recorded:

  1. The first section, “Arrest”, records “Comments made when facts of arrest explained”. These comments, made by the suspect immediately after the caution, are noted by the arresting officer (usually in the pocket notebook) and read to the Custody Officer with the suspect present.
  2. The second relevant section of the Custody Record (“Detention”) notes “Comments made when reasons (for detention) explained”. Anything said by the suspect before the Custody Officer is recorded.

Crucially, in both sections where the suspect’s comments are recorded they must be counter-signed and verified to be true by the suspect themselves. This makes it very difficult for the suspect and his or her legal team to them challenge later.

Knowing, as we now do, that a quarter of Taser victims suffer dementia-like effects, why should:

  • these comments, usually made within the crucial first hour, become written evidence in the Custody Record?
  • the comments be verified to be true by the suspect when they may not know what they said or what they are signing?
  • these early comments gain further legitimacy by being referred to in later (formal) recorded interviews?
  • interviewing officers be allowed to refer to them to put pressure on Tased suspects?
  • prosecutors be allowed to refer to them at Court?

Flawed System

Allowing the police to use post-caution and detention comments from Taser assault victims may lead to miscarriages of justice, which are bad for everyone, not just the wrongfully convicted victim who is denied their liberty. Confidence in the legal system and the Rule of Law is diminished, the financial costs to the State and society are significant, and there is the risk that the person who committed the crime will re-offend, causing further unnecessary harm.

Politicians, the police, and public now know enough about the serious physical, emotional, and mental effects of Tasers. Miscarriages of justice are likely to occur if the present system remains. It’s time for a change.

 

Kevin Donoghue is the Solicitor Director of Donoghue Solicitors, a firm which specialises in civil actions against the police and people who have suffered due to the unlawful use of Taser weapons.

 

 

Why are Solicitors Against Raising the Small Claims Limit?

Kevin Donoghue, Solicitor Director of Donoghue Solicitors explains why solicitors are opposed to an increase in the small claims limit.

I recently wrote to my local MP, Peter Dowd, and Louise Ellman, MP (the MP for Liverpool Riverside, where Donoghue Solicitors is based) to ask them to consider the Government’s proposed reforms of the accident claims process, and in particular, raising the small claims limit.

Photo of Kevin Donoghue, solicitor. Raising the small claims limit could have devastating effects in Kevin Donoghue's opinion.

Kevin Donoghue of Donoghue Solicitors considers the implications of the proposed raise of the small claims limit.

As an Association of Personal Injury Lawyers (‘APIL’) Senior Litigator, who runs an APIL corporate accredited practice, I represent many innocent accident claims victims. I am deeply concerned by the potential impact of the changes.

The government proposals will:

  • Raise the small claims limit from £1,000 to £5,000
  • Change the law by preventing people from claiming compensation for soft tissues injuries (such as “whiplash”) in road traffic accidents.

What is the Small Claims Limit in England and Wales?

The small claims limit is a money value placed on contested civil claims when proceedings are issued at County Court. With accident claims in England and Wales, if the personal injury element is worth less than the current small claims limit of £1,000 the case will usually be assigned to the small claims track. (There are exceptions, e.g., for complex cases, and sometimes claims worth more than £1,000 will get allocated to the small claims track.).

When a case is allocated to the small claims track it means that the Court considers the matter to be of low value and/or straightforward. Either way, in the Court’s opinion, solicitors are not required unless the parties want to pay privately. Consequently very limited costs or expenses are payable. As a result, most people bringing small claims represent themselves as Litigants in Person.

I disagree that personal injury accident claims are suitable for the small claims track. They are complex matters that require expert legal help to identify the issues, prepare evidence, and recover appropriate compensation to put the Claimant in the pre-accident position. Already Litigants in Person are at a huge disadvantage in small claims because Defendants in accident claims are usually insured. Insurers routinely fight small claims using expert solicitors and barristers. As a result, the scales of justice weigh heavily in their favour. More innocent accident victims will lose out if the Government raises the small claims limit.

If implemented these proposals are likely to have devastating consequences for innocent accident claims victims, people involved in the legal profession, and the UK economy. Only insurers and their shareholders will benefit.

It is for these reasons that I have urged both MPs to act. My letters stress the economic impact because, unfortunately, some politicians still believe the insurer-peddled myth of a “compensation culture” and may be reluctant to intervene. (I have written about this bogus idea in the past. Even Conservatives like former Minister Lord Young dismissed it.)

For now though, I’m not interested in a PR battle over mere words. These proposed changes to the small claims limit are so significant for concrete reasons that I hope our politicians stand up and fight. We are all relying on them.

Small Claims Limit Letter

My letter to Louise Ellman MP is reproduced below:

Louise Ellman MP

House of Commons

London

SW1A 0AA

29 January 2016

Dear Mrs Ellman,

Economic Cost of Changes to Personal Injury Compensation Claims

I am writing to you as a solicitor who specialises in compensation claims, a small-business owner, and employer, to urge you to make representations to the Justice Secretary.

I believe that the Government ‘s plan to increase the small claims court limit to £5,000 for people injured through no fault of their own – and to abolish recompense altogether for almost all those who have suffered soft tissue injuries in road accidents, is wrong.

I am sure you have read and heard the insurance lobby and government talk about the (non-existent) “compensation culture” and “fat cat lawyers”. I am not going to waste your time refuting that unsubstantiated nonsense. Instead, I invite you to consider the impact of these proposals from an economic perspective both nationally and locally.

£1Billion+ Cost to HM Treasury

It is estimated by the Access to Justice Action Group (www.accesstojusticeactiongroup.co.uk) that

the Treasury is likely to lose in excess of £1billion from lower recovery of welfare benefits paid to the DWP from successful claims, and loss of VAT, Income Tax and Corporation Tax from the demise of law firms, their suppliers and contractors, as thousands of lawyers and their hard working staff lose their employment and end up on state benefits.

Liverpool will be disproportionately impacted by these proposals. The city is a legal powerhouse with firms of all sizes employing people involved in compensation claims work. Liverpool’s law firms contribute to the local and national economy through taxation, jobs, and spending. It has a thriving support sector of IT, telecommunications, marketing professionals etc. Law firms like mine occupy prime real estate in the city, which encourages development and generates business rates for Liverpool City Council.

The compensation claims legal sector is already struggling. Many firms have gone “to the wall” since the Legal Aid, Sentencing and Punishment of Offenders Act (2012) (“LASPO”) came into force in 2013. The impact of that, and the current proposals, continues to take its toll on firms of all sizes. Last week the AA pulled out of the personal injury claims business. One of the country’s biggest law firms, Slater and Gordon, recently announced redundancies. Closer to home, Water Street-based PCJ Solicitors, which posted a turnover of £5.5million in its 2014 accounts, entered administration on 19 November 2015. The firm will leave unsecured creditors hundreds of thousands of pounds out of pocket.

The Government’s proposals will accelerate the sector’s collapse and threaten the continued existence of many more law firms and support businesses.

The proposals will also affect the budget of the already-stretched court service. Court fee increases have risen dramatically over recent years, particularly in civil litigation, which including personal injury compensation claims. Claimants are often unwilling or unable to pay the fees, leaving their solicitors to cover the costs while litigation progresses. If solicitors are no longer involved to fund court fees the Government will be forced to take money from elsewhere, and/ or close courts leading to more redundancies.

Wider Economic Impact

Whilst a limited increase in the small claims threshold is appropriate (inflation would suggest the correct higher figure would be £2,000), the current proposals will result in injustice to ordinary honest people whilst creating excessive profits for insurance companies; and even more so, if the injured are banned altogether from receiving anything at all for their suffering and losses.

It is estimated that 85% of injured people will be denied legal representation. They will be left alone to face an unfair battle against powerful insurance companies. Most will not even bother; or will be exploited by claims management companies.  Others will accept woefully inadequate offers to avoid the stress of the Small Claims Court.

My own firm is typical in that we help people locally and throughout England and Wales. Compensation recovered by innocent victims directly impacts on the local and national economy through spending on essential items (like medical care and aids) and discretionary spending (e.g. buying a newer car after a road traffic accident). Failing to recover any compensation, or under-settling, will have serious ripple effects in the wider economy.

Insurers’ Profits Soar Amid Broken Promises

The Government say its proposals will reduce “fraud”. However, the evidence does not support this argument; and the Government has already introduced a long series of measures to deal with this anyway.

Savings can only come from denying people the compensation to which they are rightfully entitled. The Government’s proposals will codify this.

The insurers claim savings would be passed on to policy holders. However, they’ve said this many times before (for example, during the discussions about LASPO) – and each time failed to meet their promise. The Government have made clear they will not “police” this, either. Despite the insurers’ promises car insurance premiums have increased 9.2% in the 12 months to the end of September 2015, taking the average cost of a comprehensive policy to £569.

The insurance industry’s own Association of British Insurers (ABI) figures show that their costs of recompensing those hurt by their policy holders have fallen 29% since 2010. The amount paid out annually by motor insurers fell from £8.3 billion to £5.89 billion last year – a decrease of £2.41 billion. Yet savings from this multi-billion pound windfall have not been passed on.

In fact, this huge sum has gone to inflate the insurance industry’s profits instead. For example, Direct Line and Admiral have between them paid out £1.65 billion in dividends in the last three years – equivalent to £221 for each of their policy holders.

Innocent accident victims, the city of Liverpool, and the wider UK economy, should not be made to pay for the Government’s wrong-headed plan.

I would welcome the opportunity of discussing these issues with you.

Yours sincerely

Kevin Donoghue

Solicitor Director

 

 

 

Merry Christmas from Donoghue Solicitors!

Merry Christmas from Donoghue Solicitors!

Merry Christmas from Donoghue Solicitors!

Merry Christmas!

Best wishes to all of our clients, friends, and families. Thank you for your support this year!

We’ve had a fantastic year. Three highlights are:

  1. In May we won Liverpool Law Society’s Niche Law Firm Award, a hugely proud moment for me personally and everyone involved in the firm.
  2. In November we moved to bigger and better offices in Liverpool city centre, giving us room to grow and help even more people get the compensation they deserve.
  3. In December our client James Parry, a solicitor in Liverpool, received justice after a two-day trial at Liverpool County Court where a Judge found that he had been wrongfully arrested by Merseyside Police. As with many of our clients, his case was about more than compensation. Winning also meant clearing his name. Mr Parry was just one of the many people we helped this year. You can read what some of our clients think about us here.

We hope you have a relaxing and stress-free holiday and that 2016 is a great year for you all.

Like the County Courts, we will be closed over the Christmas period, from 1 p.m. on Thursday, 24th December 2015 until 9 a.m. on Friday, 4th January 2016.

If you need urgent help, please contact me via email – [email protected]

This year, instead of greeting cards, we made a donation to Brunswick Youth and Community Centre (a registered charity based in Bootle, Liverpool, which we support). You can read more about how we give back to our community here.

Merry Christmas and Happy New Year!

Kevin Donoghue and everyone at Donoghue Solicitors

Are Merseyside Police Confused About the Burden of Proof?

 Solicitor Kevin Donoghue (right) pictured with his client James Parry.

Kevin Donoghue, solicitor, explains the burden of proof in false imprisonment cases.

By Kevin Donoghue, Solicitor Director of Donoghue Solicitors

Last week my client, Liverpool solicitor James Parry, was awarded £9,000 compensation in his false imprisonment claim against Merseyside Police. You can read about the case at The Liverpool Echo and The Law Society Gazette websites.

These press reports included a statement from Merseyside Police. As a solicitor who specialises in civil actions against the police I am concerned that the quote provided by Merseyside Police appears to mis-state the burden of proof in false imprisonment cases. This may give the wrong impression about our legal rights resulting in Claimants and inexperienced lawyers abandoning genuine claims once they receive the police’s denial of liability.

As a result, innocent people could be left with the distress, upset, and lifelong humiliation of an arrest. For some, this could have devastating consequences on their personal and professional lives. In this blog post I’ll clarify the law on the burden of proof and the consequences of getting it wrong.

Claim Against Merseyside Police

On Thursday 10 December 2015 HHJ Parker sitting at Liverpool County Court entered judgment for my client, James Parry (details used with permission), after finding that a Detective Constable from Merseyside Police unlawfully arrested and detained him (a.k.a. false imprisonment).

Both The Law Society Gazette and Liverpool Echo reported the story and asked Merseyside Police for a comment.

I was concerned when they issued a statement 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 in bold)

This statement seems to suggest that Merseyside Police are dealing with civil claims for false imprisonment under the mistaken impression that it is for the Claimant to discharge the burden of proof and justify arrest.

In fact, once the Claimant has proved confinement, which in most cases is not in dispute, the burden of proof shifts to the Defendant to justify it. The legal position is as follows.

The Law in False Imprisonment Cases

False imprisonment is defined as the “complete deprivation of liberty for any time, however short, without lawful cause”. (See Clerk and Lindsell on Torts, 19th edition, 2006, 15-23.)

It is established on proof of:

  1. detention; and
  2. the absence of lawful authority to justify that detention.

The Claimant must prove the first limb (that they were imprisoned) but once he or she has done this, the onus then lies on the Defendant to prove the second limb (justification). (This was established in Hicks v Faulkner (1881).)

As a result, the burden of proof is quickly shifted to the Defendant and, as stated in Liversidge v Anderson (1942), every imprisonment is prima facie unlawful.

There is no minimum period of detention for a claim to succeed although the length of detention has a bearing on the level of damages.

False imprisonment is actionable per se. That is, it’s not necessary for the individual to have suffered any damage or for them to be even aware of their false imprisonment. (See Murray v Ministry of Defence (1998).)

In Mr Parry’s case against Merseyside Police, there could be no doubt that his confinement was total. He was arrested and detained for over five hours. This was not in dispute, so Mr Parry had satisfied the first limb before the case got to Court.

So the burden of proof at the trial was entirely on the police. It appears that the person who provided the statement to the press was unaware of this fact and the effect of the two-stage test established over 130 years ago.

Fortunately, the Judge who heard the case was under no such misapprehension.

How the Police Defend False Imprisonment Claims

The most common defence to discharge the burden of proof is that the Defendant police force (through the arresting police officer) was carrying out a lawful arrest.

Sections 24 and 28 of the Police and Criminal Evidence Act 1984 (as amended) show that the following conditions for a lawful arrest are necessary:

  1. the arresting officer honestly suspected the arrested person was involved in the commission of a criminal offence (the subjective test);
  2. the arresting officer held that suspicion on reasonable grounds (the objective test);
  3. the arresting officers’ reasons for effecting an arrest amount to a reasonable belief that the arrest was necessary, usually to allow the prompt & effective investigation of the offence or of the conduct of the person in question (the necessity test);
  4. the officer informed the arrested person of the fact & grounds of arrest as soon as reasonably practicable (the section 28 test); and
  5. the arresting officer’s exercise of his or her discretion to arrest was reasonable in public law terms because PACE confers a discretion, not a duty to arrest (the Wednesbury test).

The Court’s Views on the Law in James Parry’s Case Against Merseyside Police

Necessity for arrest (condition 3) was the central point in dispute in Mr Parry’s case against Merseyside Police. An officer arrested him despite my client attending by prior appointment for a voluntary interview at a police station.

The arresting officer explained to the Court that he formed a view that it was necessary to arrest James Parry when he reviewed the evidence in August 2010, prior to making contact on 6 September. He said that he wanted to make sure that he had a degree of control and, with no knowledge of Mr Parry, was compelled to arrest him.

It appears that the Detective Constable failed to appreciate that he did not have to make an arrest to have the control he wanted and that at any point during the interview process he could have taken that step.

The Judge found that the arresting officer failed to direct his mind to the question of necessity for arrest. If he had done so, he would have concluded that it was not necessary.

Consequently, Mr Parry’s arrest was rendered unlawful and Merseyside Police failed to discharge the burden of proof.

The Cost to the Public

The arresting officer’s mistake led to an innocent man of standing suffering significant reputational damage, distress, and humiliation.

But he does not bear sole responsibility for this matter. If the police’s statement to the press is taken as written, Merseyside Police’s lawyers seem to misunderstand the law as well.

Instead of accepting responsibility, the force’s legal team sought to “test the facts at court”, a decision which will directly cost the police £9,000 in damages, plus combined legal costs for both sides of well in excess of £100,000.

With considerable budget cuts over recent years Merseyside Police and the tax-paying public can ill-afford to get this wrong.

 

If you want to claim compensation for false imprisonment contact Donoghue Solicitors, on 0151 236 1336, or fill out the form on this page.

We’re Moving!

Photo of Kevin Donoghue, Solicitor Director of Donoghue Solicitors, who explains why his firm is moving to Liverpool.

Kevin Donoghue, Solicitor Director of Donoghue Solicitors, explains why his firm is moving to Liverpool.

By Kevin Donoghue, Solicitor Director Donoghue Solicitors

Exciting news! Thanks to the help and support of our clients, family, and friends we’re moving to bigger premises in Liverpool.

From Monday 9 November 2015 we’ll be at 25 Hatton Garden, Liverpool, Merseyside, L3 2FE.

Our phone and fax numbers will remain the same.

For directions to our new offices:

1.    click on this google maps link
2.    go to the contact us page of our website
3.    call us on 0151 933 1474.
Our new offices are only three miles from our old place at St. Hugh’s House in Bootle. They are close to Moorfields train station, on a main bus route, and have metered parking right outside. Here’s the map:

Map of Donoghue Solicitors new offices at 25 Hatton Garden, Liverpool, Merseyside, L3 2FE.

Map of Donoghue Solicitors’ new offices at 25 Hatton Garden, Liverpool, Merseyside, L3 2FE.

 

Meetings in Bootle, London, Merseyside, and via Skype

Moving to 25 Hatton Garden, Liverpool, means that we can offer more places to meet our clients face-to-face to help with their compensation claims. We now offer four locations:

  1. We’re keeping our strong roots in Bootle, Merseyside. Our friends at Brunswick Youth and Community Centre have kindly agreed to allow us to use private rooms for client meetings.

We can now meet you by prior appointment at:

Brunswick Youth and Community Centre

104 Marsh Lane

Bootle

L20 4JQ

This address is for meetings by prior appointment only. No mail or phone calls please. Click on the Contact us page for our full contact details, postal address and phone/ fax numbers.

2. And now we’re in Liverpool city centre, we’ve joined Liverpool in London, which has a serviced office in the heart of London where we can meet clients based in the South East. Again, this address is for meetings by prior appointment only. No mail or phone calls please.

Liverpool in London (serviced office)

2nd Floor

Warnford Court

29 Throgmorton Street

London

EC2N 2AT

3. We’re always willing to come and meet you at home. Because we’re solicitors in Liverpool, we can meet you at:

Your Home in Merseyside.

4. Finally, we are happy to “meet” you virtually via skype.

Contact us via our skype name: donoghue-solicitors

We're moving!

Why Moving Matters

This move is particularly exciting for me personally. I started Donoghue Solicitors five years ago as a sole practitioner with the aim of providing outstanding service to people in their actions against the police, accident claims, and professional negligence claims. Since then we have grown rapidly, recruited well, and received numerous honours, including the Niche Law Firm Award at the 2015 Liverpool Law Society Awards.

Even though we are sad to leave Bootle, our success means that we have outgrown our former home, something which gives me great pride.

And by moving into new offices in the city centre we can continue to expand and help even more people get the justice they deserve.

We look forward to welcoming everyone to our new offices at 25 Hatton Garden, Liverpool, soon.

 

 

Can I Claim Compensation for a Mistaken Identity Arrest?

Photo of Daniel Fitzsimmons who discusses mistaken identity arrest compensation.

Daniel Fitzsimmons discusses mistaken identity arrest compensation.

 

By Daniel Fitzsimmons, GCILEx

In the past couple of weeks, I have taken on three new clients who want to pursue actions against the police after a mistaken identity arrest. All three men have suffered mentally and physically due to the incompetence of the police. This is why I believe they should be compensated.

Client 1: mistaken identity arrest at an airport

Mr. L called me following his arrest at an airport. He was with a group of friends waiting to fly out to Spain on holiday when, while at the gate, he was arrested by police officers on suspicion of domestic violence against a Miss G. Mr L told the police he did not know Miss G and denied the allegation. He was arrested and taken to a local police station for interview anyway.

After being processed and having his fingerprints and DNA taken, Mr L was detained for six hours until the police were ready to interview him.

While in the interview the interviewing officers asked him if his name was Mr W (same first name, different last name).

Mr L confirmed his name and, realising their mistake, the police eventually released Mr L without charge more than an hour later.

Unsurprisingly, he missed his flight and part of his holiday. He had to buy another ticket and join his friends the next day. The rest of his holiday was ruined because he was worried that he would be arrested again on his return. He was angry and upset that the police’s incompetence caused him to suffer stress, upset, and financial loss.

Client 2: Police arrest wrong man accused of actual bodily harm

A woman reported domestic abuse (actual bodily harm) to the police. She gave them the names of two ex-boyfriends, one of whom was my client. Both men were apparently of Nigerian descent but the woman told the police that her abuser was the other man.

Despite this clear instruction, the police mistakenly arrested my client at home, took him to a police station, and kept him in custody for five hours before eventually releasing him without charge.

Client 3: Mistaken Identity Arrest for serious sexual offences

My client, a respectable middle-aged civil servant, was leaving home to go to work in his car when three police cars arrived at speed and blocked him in.

Police officers jumped out and screamed at my client to get out of his own car. He did as he was told. The police grabbed and searched him and told him he was being arrested for the serious and upsetting offences of rape of a child under 13, slavery, and assault of a minor.

Naturally, my client was shocked and confused. He thought it was a practical joke and told the police they were mistaken and had the wrong person but they ignored him. He was bundled into the back of a police car and taken to a nearby station.

After being processed, fingerprints and DNA taken, and held for over 12 hours my client was eventually interviewed.

During the interview my client confirmed that he did not know the complainant and had never lived in the area where she said she was held. He insisted that they had the wrong person and that he could easily prove it. Despite this the police continued with their upsetting and intrusive questioning.

Again, following interview, the police confirmed that this was another case of mistaken identity arrest.

He too was released without charge.

Reasonable Suspicion and False Imprisonment

My clients were deprived of their liberty so have potential compensation claims for unlawful (or wrongful) arrest, false imprisonment, and personal injury assault/ psychological damage. There may also be claims for trespass and breach of the Human Rights Act.

But are they entitled to compensation? To answer that we have to consider the law going back to the Magna Carta (1215) which says:

No free man shall be seized or imprisoned, or stripped of his rights or possessions, or outlawed or exiled, or deprived of his standing in any other way, nor will we proceed with force against him, or send others to do so, except by the lawful judgement of his equals or by the law of the land.

False imprisonment is the cornerstone of their claims and is defined as the “Complete deprivation of liberty for any time, however short, without lawful cause.”

(from Clerk & Lindsell on Torts, 19th Edition, 2006)

It is established on proof of:

  1. the fact of imprisonment, and
  2. the absence of lawful authority to justify that imprisonment.

Once the claimant (victim) has proven that he or she was imprisoned the defendant (police officer) has to justify it. (see Hicks v Faulkner 1881).

Because every imprisonment is prima facie (on its face) unlawful, this is one of the rare situations in civil law where the burden of proof shifts from the claimant to the defendant.

Police prove the lawfulness of an arrest by relying on a warrant (here’s more information on police warrant claims) or, if they don’t have one, applying s.24(2) and (3) of the Police and Criminal Evidence Act (1984) (as amended).

This law says:

(2) If a constable has reasonable grounds for suspecting that an offence has been committed, he may arrest without a warrant anyone whom he has reasonable grounds to suspect of being guilty of it.

(3) If an offence has been committed, a constable may arrest without a warrant—

(a)anyone who is guilty of the offence;

(b)anyone whom he has reasonable grounds for suspecting to be guilty of it.

(my emphasis in bold)

There are other conditions which must be met before arrest, such as also having reasonable grounds for believing that it is necessary to arrest.

Two-Stage Test

But what are “reasonable grounds for suspecting”? The former Master of the Rolls and Lord Chief Justice, Lord Woolf, set down a two-stage test in Castorina v Chief Constable of Surrey (1988):

  1. Did the arresting officer suspect that the person who was arrested was guilty of the offence? The answer to this question depends entirely on the findings of fact as to the officer’s state of mind.
  2. Assuming that the officer had the necessary suspicion, was there reasonable cause for that suspicion? This is a purely objective requirement to be determined by the judge if necessary on facts found by the jury.

If my clients’ cases get that far, the trial judge(s) will be asked to consider each question in turn. Both limbs must be satisfied to justify arrest.

Public policy leans heavily in favour of the police to encourage them to get on with the job of policing effectively. As a result, the threshold for an arresting officer to justify reasonable suspicion for arrest is low. But in the cases I describe above I am confident that these mistaken identity arrests cannot be justified.

This is because even though the arresting officer might say that he personally suspected my client of guilt (Question 1: known as “the subjective test)”, the court must also be satisfied as to the reasonableness of the officer’s assumption from an outsider’s point of view (Question 2: known as “the objective test”).

So, in the case of Client 1, when my client explained to the arresting officer that he was not the person they were looking for, and that he did not know his accuser, this ought to have put doubt into the arresting officer’s mind. The officer failed to resolve this before arrest, which he could have easily done by checking my client’s passport (which he was holding as he was about to board a plane).

In my opinion, this means that the officer did not have an objectively reasonable suspicion which makes the arrest unlawful, and means that my client is entitled to compensation and, if necessary, an apology.

In short, arresting officers have to use their brains. Despite police-friendly public policy, our 800-year old right to liberty trumps their right to investigate and suppress crime without consequences.

 

If you have a mistaken identity arrest case call me, Daniel Fitzsimmons, on 0151 933 1474 or complete the online form on this page.

 

 

 

 

 

 

 

 

Should I Take a Pre-Medical Offer Whiplash Settlement?

Photo of Hannah Bickley, ACILEx, who explains pre-medical offer whiplash settlements.

Hannah Bickley, ACILEx, explains pre-medical offer whiplash settlements.

By Hannah Bickley, ACILEx

Pre-medical offer whiplash claims are often settled quickly and, for the insurers, cheaply. But should you accept a pre-medical offer or reject it and pursue full compensation? Here’s my view.

How Pre-Medical Offer Whiplash Claims Work

My colleague Daniel Fitzsimmons has discussed how a pre-medical offer works in an earlier blog post. He’s right to point out that it’s usually a mistake to accept a pre-medical offer, especially in claims involving “whiplash” injuries where the innocent claimant suffers neck and/ or back strain in road accidents.

This is because personal injury claims are as varied as the people who make them.

Despite this, insurers have woken up to the fact that some people are willing to settle their claims at a substantial discount in return for a quick settlement. They usually offer a fixed amount, which wrongly suggests that all whiplash claims are the same. The saying “a bird in the hand is worth two in the bush” springs to mind, especially if you choose to settle your claim without a medical report.

But should you take their low-ball offer? As my client David Hoang found out, with only a small amount of extra time and effort the claimant who rejects a pre-medical offer whiplash settlement can be properly compensated.

Car Accident Whiplash Claim

David Hoang (details used with permission) is a 29-year old office worker. In April this year he was driving to a restaurant. On his way he saw an ambulance approaching with its lights flashing. He pulled over onto the kerb to let the ambulance pass. Suddenly another car came round the corner and hit Mr. Hoang’s car in the rear.

Thankfully the other driver behaved responsibly, stopped at the scene, and accepted the blame.

David’s car was written off in the crash and dealt with by his own insurers. But he suffered whiplash to the neck and went to a walk in centre for attention.

He came in to our offices to see me and we started the claim.

As I am required to do, I submitted Mr. Hoang’s claim via the personal injury claims portal.

Within a week the responsible driver’s insurers admitted blame and made a pre-medical offer of £1200 for everything, including whiplash and out-of-pocket expenses.

Mr. Hoang considered the offer, and the speed he received it, but rejected it on my advice.

I advised him that without a proper medical expert assessment, there was no way of knowing if this offer was acceptable. By taking “the bird in the hand” he may under-settling his claim and losing out significantly.

We discussed the procedure to correctly value his claim. I explained that he would have to be medically examined, but that this would not take long and could be arranged close to home. We would also need to correctly prepare his claim for injuries and other expenses, and he would need to keep in touch while I prepared his claim and negotiated on his behalf.

While this would also take some time, he agreed with me that this small amount of inconvenience was potentially worth it. He was entitled by law to full and proper compensation. Now I had to deliver.

Tweet: Insurers make low-ball pre-medical offers in #whiplash claims. Reject them to get proper compensation. http://ctt.ec/9Avm6+

 

Benefit of Rejecting a Pre-Medical Offer

I arranged for an expert doctor who specialises in musculoskeletal medicine to examine Mr. Hoang. The appointment took place only five miles from his home.

The doctor’s report confirmed that David had suffered a neck injury which he anticipated would take 8-12 months to recover. He also suffered from travel anxiety which would go away over roughly the same period.

As well as his personal injury claim David had a modest (£7.50) claim for out-of-pocket expenses.

Once Mr. Hoang had approved the medical report and claim for expenses I submitted the evidence to the insurers with my offer to settle.

I kept in touch with David throughout and advised him at every stage. Although he lives locally, we used email and phone calls most of the time.

Negotiations took six weeks, during which time I made the insurers come up from their pre-medical offer of £1200 to £2457.50, more than double the original offer.

Mr. Hoang’s claim took just over 5 months start to finish. Do you think it was worth his while to reject the pre-medical offer whiplash settlement and seek full compensation?

I do. The numbers speak for themselves.

P.S. Thanks!

I’m glad I was able to get David the compensation he rightly deserved. He was very happy and sent a beautiful gift box full of goodies to the office with a very kind note. Here I am planning what to enjoy next:

 

Photo of Hannah Bickley with a gift box from a grateful client following settlement of his accident claim.

Hannah Bickley with a gift box from a grateful client following settlement of his accident claim.

Although I was just doing my job, it’s always nice to be appreciated. Thank you David!

 

Hannah Bickley is a GCILEx litigation executive at Donoghue Solicitors. She specialises in accident claims. Instruct her by completing the online form on this page or call 0151 236 1336.

 

Niche Law Firm Award Winners!

Photo of Kevin Donoghue, Solicitor of Niche Law Firm Award winners, Donoghue Solicitors.

Kevin Donoghue, Solicitor of Niche Law Firm Award winners, Donoghue Solicitors.

By Kevin Donoghue, Solicitor Director of Donoghue Solicitors

We won!

You might remember we were shortlisted for two Liverpool Law Society Legal Awards (read the story here), including the coveted Niche Law Firm Award for our work in actions against the police.

At a glittering black-tie awards ceremony at the Crowne Plaza Hotel in Liverpool on Friday 15 May we became the Niche Law Firm Award winners, beating two other shortlisted firms to the important title.

The ceremony was hosted by well-known local radio personality Roger Phillips and was attended by over 300 lawyers and their guests, including many nationally-renowned people from the legal world.

Emlyn Williams, Liverpool Law Society President, explained to the audience that “the Awards showcased the best of the legal profession” and “demonstrated excellence in legal services provided by the member firms based in and around Merseyside.”

Photo of Donoghue Solicitors' tables at the Liverpool Law Society Awards.

Donoghue Solicitors’ tables at the Liverpool Law Society Awards.

Niche Law Firm Recommendation

We all listened as Roger Phillips read the independent judges’ comments, which I have permission to repeat here. They said:

“Donoghue Solicitors have developed a niche specialism in civil actions against the police. Their work covers complex areas of law and practice, frequently combining a range of personal injury, privacy and Human Rights issues.

“The judges were impressed with their commitment to working with clients who are seeking to attain justice and challenge misconduct. The cases frequently involve important issues of principle pertaining to client confidentiality and reputational damage.

“There is a clear and significant commitment to widening access to justice.”

On this basis the panel, which included a leading Queens Counsel judge, a former past president of Liverpool Law Society, a law professor at John Moores University, and a city councillor, recommended Donoghue Solicitors for the Niche Law Firm award.

Niche Law Firm Award winners logo.

Liverpool Law Society Niche Law Firm Award winners – Donoghue Solicitors.

Grateful Thanks

As I escorted my team up to the podium to collect the niche law firm award I looked around our tables to see our parents, partners, and special guests cheering us on. It was an immensely proud moment for me. I will never forget it.

One of our guests filmed my acceptance speech on her phone. You can see it here:

In the footage you can hear me thank my team, and especially my mum and dad. My parents unwavering support was especially important when I decided to set up my own niche law firm in 2010 during the recession. Thanks to them and my wife Steph, who believed in me and made many sacrifices to help get the firm off the ground. With their help I and my small, dedicated team have been able to help a great number of people gain access to justice and the compensation they deserve.

Donoghue Solicitors win the Niche Law Firm Award at the Liverpool Law Society Legal Awards.

Donoghue Solicitors win the Niche Law Firm Award at the Liverpool Law Society Legal Awards.

 

As you can imagine, we had a fantastic night which didn’t end until the early hours. It was a well-organised and hosted event which everyone enjoyed, as you can see from the official photos on the Liverpool Law Society’s website and flickr page, and some funny ones on their facebook page. (We’re in photos 38 and 45. Look away if you’re uncomfortable seeing pictures of people in curly wigs and Mexican hats!)

Actions Against the Police Niche

This public recognition of our work in the niche area of actions against the police litigation means a lot and spurs us on to work harder and achieve greater things. We are grateful to the judging panel for choosing Donoghue Solicitors to receive the award.

We will continue to fight hard for our clients and seek to “demonstrate excellence” as we grow.

 

If you want help with your compensation claim from the Liverpool Law Society Niche Law Firm Award winners (!) call Donoghue Solicitors on 0151 236 1336 (local number), 08000 124 246 (freephone number), or fill out the short enquiry form on this page.

 

 

 

Why We Have HTTPS Websites

Photo of Kevin Donoghue, Solicitor, who explains why Donoghue Solicitors have moved to https websites.

Kevin Donoghue, Solicitor, explains why Donoghue Solicitors have moved to https websites.

By Kevin Donoghue, Solicitor

You might have noticed something different about our websites: they’ve gone green! Here I’m talking about internet security, not the environment, and our move to “https” website addresses.

You may be familiar with website addresses starting with “http://” before adding “www” (world wide web). The difference with our sites is the “s” in https.

This means that we now have secure (https) websites whose addresses show up green in some browsers, so you know you’re on our official sites.

Our full website addresses are now: https://www.donoghue-solicitors.co.uk and https://www.policeclaims.co.uk.

Getting these certificates has taken a lot of time and effort. So, why bother?

Because, as regular readers of the blog know, there is more to running a firm of solicitors than just practising law.

As Solicitor Director of Donoghue Solicitors I am responsible for all aspects of my firm. I am the Compliance Officer for Legal Practice, a title which goes beyond just practising law and extends to how the business is run, marketed, and managed.

I have to be aware of wider issues which affect society in general and adapt them to my firm. Regulators such as the Solicitors Regulation Authority, Information Commissioner’s Office, Legal Ombudsman, and others, expect it, but rarely give direct instructions, leading me to exercise my best judgement.

With that in mind I have been troubled by the increase in cyber-attacks over the past year. For example:

  1. You might recall the impact of last year’s “heartbleed” virus which led to many people changing passwords and checking their online security.
  2. Edward Snowden revealed how government organisations have been able to get access to people’s email and other online accounts.
  3. Hackers stole personal staff information from Sony’s computers, who were so rattled that they cancelled the release of “The Interview”, a satirical movie about North Korea.
  4. There has been an increase in fake websites which copy trusted sites so well that people can’t tell the difference, resulting in them providing personal details, credit card numbers etc. to the hackers.
  5. Even big, tech-savvy companies like Tesla Motors have had their websites hacked, causing significant disruption and damage.

Public trust in the legal profession, and Donoghue Solicitors in particular, extends to more than just being honest, fair, and acting in our client’s best interests. It matters to our clients, regulators, and the wider community that we are seen doing this, even if they are not personally using us to claim compensation for their actions against the police, accident claims, or professional negligence claims.

Having your best interests at heart extends to online security and led to the new https system. In the course of the upgrade I learned a little about how the internet works, which I explain below.

What is the difference between http and https?

There are two main types of website addresses:

  1. those starting with http, and
  2. those starting with https.

HTTP means Hypertext Transfer Protocol. It is the standard way of communicating data over the internet.

Http addresses are vulnerable for two reasons:

  • Normal website traffic (http) is unencrypted, which means that it can be read by others and potentially hacked.
  • Http domain addresses are available at low-cost and with minimal checks so hackers anywhere in the world can use them to set up fake websites to “phish” for personal details, credit cards etc.

So internet users must be on their guard and make sure that they check before providing any personal information, click on links or downloads etc.

How https works

Https helps legitimate website owners and users fight back.

It means Hypertext Transfer Protocol Secure. It is the secure version of http.

The “s” in https is added when the http is layered over a Transport Layer Security (“TLS”) or Secure Sockets Layer (“SSL”) protocol. This is achieved by obtaining a security certificate from a trusted authority which verifies the owner of the website and server.

As part of the https protocol any communication between you and Donoghue Solicitors’ websites is encrypted. This prevents man-in-the-middle attacks, eavesdropping, tampering etc.

So you can be confident that you are communicating with our genuine websites, and that any information you give can’t be read by a hacker. This is especially important for our clients who complete the online enquiry forms. Providing your name, email address, and phone number is personal information which could be abused in the wrong hands. You can be sure when you provide us with information via our websites that it is securely encrypted and coming only to us.

Extended Validation

Moving to https website addresses cost a little extra, and involved some work. But that was just the first, and easiest stage. To give you the ultimate in reassurance we went further and invested in an Extended Validation (“EV”)  certificate for https://www.donoghue-solicitors.co.uk. This provides industry-leading 256 bit encryption keys so you have the highest level of confidence and protection.

The visual difference to you is that, as well as the https at the beginning of our website address, our firm name appears in the website address bar:

Photo of google chrome browser showing that Donoghue Solicitors uses https websites.

Donoghue Solicitors uses https websites.

This is a quick way to know you’re on our official site.

We believe we’re the first firm of solicitors in the country to get an Extended Validation certificate for our website.

This is not surprising as it took a lot of time and work. We had to confirm to our EV certificate issuers in the USA:

  1. our legal existence, verified using government records
  2. physical existence, which had to be verified with others
  3. operational existence, which confirmed that we were in business
  4. domain name verification, checked independently, and
  5. authorisation from an officer of Donoghue Solicitors.

We also had to complete a long legal document, get together all the independent information, and I had to speak to a representative in their Chicago office to confirm these details.

As well as the set-up fee, there is an annual renewal charge for the EV certificate, but we think the extra money and work are worth it. You can trust the green bar on our site, browse our content, and give your details in confidence.

How do I know a website is secure?

If you already know a website is secure type in the full domain name, starting with “https://” (e.g. https://www.donoghue-solicitors.co.uk).

Alternatively, do a google search, or type the “www” address (e.g. www.donoghue-solicitors.co.uk) in the address bar in your internet browser.

When the website opens, look in the address bar at the top of the page. If you see a padlock and “https://” (which is in green if you’re using google chrome as your browser) you’re on a secure, trusted site. Websites like ours with Extended Validation also show green internet address bars and the name of the company. You can see this in the chrome, firefox, and safari browsers, among others.

For extra peace of mind, you can check the security certificate details by clicking on the padlock in chrome and firefox.

And as you already know, it is also important to make sure your web browser and security software are up to date and that you only click on links or download things from trusted browsers/ sources.

The internet can seem like the Wild West. By using secure (https) websites we hope to keep the hackers at bay and give you the confidence you need.

 

For help with your actions against the police, accident claims, or professional negligence claims contact Donoghue Solicitors using the simple online form on the website, or call us on 08000 124 246 or 0151 933 1474. We represent clients throughout England and Wales.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Why Lawyers Need to be Creative

Photo of Kevin Donoghue, Solicitor, who discusses why lawyers need to be creative.

Kevin Donoghue, Solicitor, discusses why lawyers need to be creative.

By Kevin Donoghue, Solicitor Director of Donoghue Solicitors

 

A recent Telegraph Article got me thinking about creativity in the legal profession, and in particular, why lawyers need to be creative for themselves, their clients, and the economy.

As I explain below, lawyers must do their part by exploiting technology. And lawmakers need to adopt a two-pronged approach, by fostering creativity in one of the country’s major professions, and by resisting the temptation to interfere.

Why the UK Needs More Creative Jobs

Nesta, the innovation charity, says creative work takes place when:

tasks are highly interpretive, geared at ‘products whose final form is not fully specified in advance’, and when work task environments are complex.

Fostering this creative work is vital to the UK economy as the charity says that 35% of jobs could soon be fully automated with advances in technology.

Imagine a third of the working population losing their jobs in the coming years.

The worrying thing is, it’s been happening for years. We’re familiar with self-checkout at supermarkets and comfortable with riding on unmanned mono-rails and airport shuttles. And driverless cars are already a reality, if not ready (yet) for Britain’s streets. Don’t believe me? A car recently made a cross country trip of nearly 3,400 miles across the USA with a person taking over for only 50 miles of the journey. It won’t be long until computers, not people, are driving cars, buses, lorries, and trains.

In the legal profession, computers have brought massive changes to the way solicitors work. Lawyers’ use of computers has led to costs reductions and fewer roles for some people. 15 years ago high-street solicitors had their own secretaries. Now I don’t know of any such firm.

Secretaries have mostly been replaced by IT literate lawyers who produce their own work, some of which involves adapting precedents prepared by a more senior lawyer (like me!).

Despite these efficiencies, Nesta says in its report (at page 34) that “legal activities” have a 24.3% probability of computerisation. Less than the 35% average, but still worrying for a quarter of the profession, which in 2011 employed 340,000 people.

And we’re not the only ones. Much of a GP doctors’ work is routine practice management and compliance, police officers and teachers often complain about form-filling, and accountants use computer packages to pre-populate fields to do tax returns.

If we ignore this situation the burden on the state, which is already anticipating an increased demand on resources due to our ageing population, could be devastating. Estimates vary, but in this article the Institute of Directors say that the country’s debt could double, and that big businesses could collapse under the burden. And that’s without accounting for the increased cost to the NHS, social care etc.

Making More Creative Jobs

Nesta’s solution is for government to create 1 million creative new jobs by 2030 to make sure that Britain’s workforce remains employable and productive. Getting more, highly paid taxpayers into the working population is essential.

It recommends that the current focus on STEM subjects (science, technology, engineering, and maths) be widened to include art (making it STEAM).

So while the current focus is on the sciences, it should not be at the expense of the arts, especially those that involve critical thinking, persuading, socialisation, and reasoning. These skills are essential for the modern lawyer. It is no coincidence that the earlier definition of creative work perfectly describes a legal case, especially an accident compensation claim, where the issues are numerous and complicated, and the outcome is always uncertain.

Many people join the legal profession after honing these skills elsewhere, both academically and in other areas of life. For those who take a traditional route to qualification, it is quite common for solicitors to take an undergraduate degree in an arts subject (such as History, English, or Philosophy) and then take post-graduate courses in Law to gain the necessary qualifications.

At Donoghue Solicitors we have a number of people who did not go down the traditional university route of qualification. Instead, for some of our staff, learning on the job is being supplemented by evenings and weekends studying to become qualified. By avoiding university altogether and working in legal practice instead of a classroom, the breadth of experience, particularly in so-called “soft skills” such as negotiating and other people skills, can be far better. It is likely that these skills will remain highly prized, immune from computerisation, and should be encouraged.

The Current Impact of Computers

Increased automation at Donoghue Solicitors has led to better efficiency and, we like to think, better service. But while computers have changed many things for the better they won’t do away with the need for working people such as lawyers to use their brains creatively. As the Nesta report says at page 15:

While many creative occupations have undoubtedly been affected by computers, our findings show that computer–controlled equipment is unlikely to substitute for labour in creative domains. Rather, computers serve as a complement to most creative professions, making creative skills more productive. (my emphasis)

For example, in the case report of my client RL you can read how I had to think my way around a situation where the police wrongly raided my client’s flat and the story was publicised in a local paper and on the internet. Some of the creative issues were:

  • objectively assessing my client’s case and him as a witness
  • considering prospects and assessing risk
  • interpreting the law
  • developing the case, including identifying breaches and loss
  • persuading my opponent about the merits of the case
  • evaluating offers of settlement, and
  • advising, supporting, and working well with my client to ensure a satisfactory resolution.

While computerisation certainly helped with these tasks, without creative and critical thinking, essential soft-skills, and the ability to constantly re-evaluate a case considering numerous variables, compensation claims such as RL’s would not succeed and innocent people like him would be denied justice.

Damaging Government Interference

While I support Nesta’s demand to see government policy encourage creative professions, this is only one side of the coin. As well as asking lawmakers to actively promote creativity, we should tell them to stop finding ways to discourage it.

Over the past 15 years or so there have been many attacks on the legal profession which have drastically changed how solicitors work and how they manage their practices.

Nowhere is this more clear than in the field of personal injury accident claims, where successive governments have chased easy headlines to cut costs, reward donors, and curb the so-called and non-existent (read why here) compensation culture:

  1. In 1999 the government completely changed the way civil claims, including personal injury claims, are handled when it replaced the Supreme Court and County Court rules (“the White Book” and ‘the Green Book”) with a new set of rules, the Civil Procedure Rules. Overnight solicitors were expected to know and interpret these rules and, where cases straddled both the old and new rules, flexibly apply the law.
  2. Legal aid was withdrawn from most personal injury cases and replaced by conditional fee (“no win no fee”) agreements in the late 90’s. These have been through numerous changes over the years. Initially, success fees (an uplift to reward the solicitor for taking the risk and delaying payment) were recoverable from the client. Then they were recoverable from the losing party. Now they are not, and the client has to pay them again.
  3. Legal costs in personal injury claims have gone from being dealt with applying flexible guidelines known as “scale costs”, to fixed costs, with no flexibility. These fixed costs have been greatly reduced since 2013 leading many personal injury firms to adapt, merge, or close.
  4. Referral fees were allowed in 2004 which led to claims management companies, some of which, like Claims Direct and The Accident Group, had a spectacular growth and even more dramatic decline, causing inconvenience and loss to many innocent accident victims. The government belatedly tried to remove these companies by banning referral fees in 2013. Some firms, which relied on referrals for their work, went bust as a result.
  5. Court fees have recently been increased by as much as 600% (up to £10,000), leading to fierce criticism from judges. Paying this much money to the government up front is likely to price many people out of access to justice. It could lead to a double injustice, where innocent accident victims suffer due to someone else’s negligence, and are then denied access to the courts to seek a remedy.

Creativity in this context means managing a business through unnecessary changes created by lawmakers. Lawyers are constantly frustrated and confused by government meddling so it is unlikely that a computer program could be written to make sense of it.

Lawyers a Part of the Creative Solution

Despite the note of caution in Nesta’s report and government’s best efforts to change it, people working in the law are creative by profession and the legal sector has thrived. According to a report in “The City UK”, legal services doubled in size to £20.9 billion in 2011. The English legal system is the envy of the world and continues to attract people due to its fairness and high-quality, creative representation.

If for no other reason, the money it generates for our economy means that the legal profession should be considered alongside Nesta’s campaign to focus government funding. Properly prepared in creativity, the next generation of future-proofed school leavers could contribute to it. In turn, they would support the country through tax revenue, employment, and avoid the risk of being replaced by a computer and becoming a burden on the state.

 

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