5 Reasons Why We Don’t Pay a Staff Bonus

Photo of Kevin Donoghue, solicitor, who explains why Donoghue Solicitors doesn't pay staff bonuses.

Kevin Donoghue, solicitor, explains why Donoghue Solicitors doesn’t pay staff bonuses in this article.

By Kevin Donoghue, Solicitor Director of Donoghue Solicitors

I’m proud that, at Donoghue Solicitors, we do things a little differently.

It may be uncomfortable to hear, but like every other law firm, we are in business, not charity. Even though we spend a lot of time and money giving back to our community, being professional means that we often have to make commercial decisions.

We’re not being selfish.

Our regulator, the Solicitors Regulation Authority, demands that we run our business properly.

Rule 8 of the 10 mandatory SRA Principles says that all solicitors must:

run your business or carry out your role in the business effectively and in accordance with proper governance and sound financial and risk management principles

As a solicitor and member of the wider legal community, I approve of this. It does no one any good to see law firms go out of business, especially clients.

But it is possible to run a commercial outfit and still put clients first. This view led me to think early on about how I would recruit and incentivise staff. This matters because without good quality, motivated people working for the firm it would soon cease to exist.

I trained to become a solicitor at a nationwide firm. Coming from a place where people are spread out and often have little to do with each other, I knew that I wanted to keep things small. It was, and remains, important to me that we focus on building long-lasting relationships with clients and staff. One way to do this was to recruit and pay people based on both their technical abilities and client care skills.

With this in mind, I decided to buck the trend of many law firms and pay my staff a salary without a performance-related bonus. Here’s why.

Staff Bonus Structures

Often law firms, particularly in the accident claims sector, pay “fee-earning” staff (solicitors, legal executives, and paralegals) a low salary which they can then supplement with a performance-related bonus. Solicitor’s firms have different ways of doing this, but they are all target-based.

  • Some pay bonuses on hours billed;
  • some on fees received;
  • others on cases opened or closed.
  • Some firms pay a bonus on annual performance;
  • some on monthly performance.
  • Some are individual based;
  • some department based;
  • others use complicated combinations of the above.

There are five consequences, all of them negative in my opinion, of paying staff performance-related bonuses in solicitor’s firms:

  1. The client suffers. This was the most important point for me when I decided against paying my staff a bonus. For clients, there are five main problems:
  • When deciding whether to take on a new client, lawyers could refuse to take cases which, on their face, are not guaranteed winners but might have arguable prospects. From the bonus driven fee-earner’s point of view, why should they invest time and risk their bonus on a case that might not win? This situation could result in genuine claimants being denied access to justice. (N.B. This is not the same as the reasons for declining a case on a “no win no fee” basis, which I have written about here.)
  • Harassed lawyers chasing bonuses might not have the time for proper client care, resulting in dissatisfied clients and poor instructions, which could result in things being missed, the claim being under-settled, and/or the client having to make a complaint.
  • Those same solicitors or other lawyers might leave the firm if they feel that the bonus system is unfair. They would be replaced by someone new, who has to spend time getting to know the client and the case. This is time-consuming, frustrating, and worrying for the client.
  • If the case is transferred from a lawyer who has left the firm, the client could be refused representation by another over-worked but appropriately skilled fee earner because they don’t have the time to invest in inheriting a former colleague’s case, or they think it doesn’t have good prospects of success. This might result in someone less qualified or able taking the case, which is a problem for the client, the lawyer, and the firm.
  • Finally from the client’s point of view, pressure on fee-earners to bill monthly or annually could result in a case being under-settled just to hit a bonus target. As a result, the client might get compensated sooner but they could lose out on the full amount of compensation they deserve. This could result in a professional negligence claim.
  1. It creates a “me first” culture. Lawyers may be reluctant to help their colleagues with cases, court hearings, meetings etc. as this takes away from their own time and bonuses. And, at the year-end, the person who received the help may get a bigger bonus and greater recognition for the following year, leading to resentment and jealousy. It also creates a toxic atmosphere at work which results in higher staff turnover, which as I mentioned above is bad for both the clients who have to work with another lawyer and the firm which has to replace them.
  1. Fee-earners can refuse to “share” clients with each other and across departments for fear of losing that client to a competitor within the firm. This helps no one, not least the poor client who could be missing out on quality representation and then has to go through the hassle of finding another solicitor elsewhere. Lawyers may also refuse to share contacts and potential referrers of work, leading to lost clients to other firms.
  1. Solicitors and other lawyers often spend time brainstorming ideas and cases to maximise their prospects of success. The law is a knowledge-based job, and knowledge is best shared. But bonuses create a culture of jealousy which limits sharing of ideas. This could lead to clients losing their cases, and making complaints and/or claims against the firm.
  1. Bonuses are difficult and time-consuming to manage. I attended a management course a while ago where a managing partner who had inherited a firm which had a bonus system said that, despite radically changing it, they still had to spend time refining it every year. They are a waste of everyone’s precious time and resources, which could be better spent helping the client (see point 1) and each other.

An Alternative to Staff Bonuses

Given all the problems with performance-related bonuses I have described it is a wonder to me that anyone uses them at all. Instead of this dysfunctional system, I decided when setting up the firm to make the client the focus of staff performance, not the bonus a lawyer could potentially take home. That way we all benefit when a client succeeds in their case, when we learn something which we share (staff training is continuous and thorough), and when we grow as a firm.

For example, my colleague Daniel Fitzsimmons recently settled a case for Mr. AN. A minibus driver knocked Mr. N off his bike. AN suffered personal injuries, property damage, and other losses. Daniel worked with Mr. N, me, and (trainee legal executive) Hannah Bickley to make sure that:

  • AN’s case was properly and fully detailed;
  • he got complete and accurate medical evidence from the right specialists; and
  • he was put in the position he would have been in if the accident didn’t happen. (This is the purpose of tort law in personal injury accident claims.)

Cases like this are all about teamwork, and Mr. Fitzsimmons treated AN as a member of the team. He involved him in decisions and took the time to discuss matters, demonstrating excellent “client care”. When it came time to settle, Dan negotiated hard and kept pushing for more when other lawyers on performance-related bonuses may have settled early to hit their targets.

Daniel recovered £4,600 for AN plus his legal costs, which was an excellent settlement. We’re proud of the job we did. AN was happy too. He was a helpful and co-operative client and has become a friend of the firm.

Photo of Daniel Fitzsimmons, a Chartered Legal Executive who works at Donoghue Solicitors.

Daniel Fitzsimmons a Chartered Legal Executive who works at Donoghue Solicitors.

Benefits

From a management point of view not dealing with bonuses (or the office politics they create) means that I get to spend more of my time

  • winning cases for my clients as I am a practising solicitor as well as the Director of the firm,
  • managing the firm’s growth, and
  • ensuring that we are progressing as a group.

I am proud of the fact that, since I started Donoghue Solicitors over four years ago, we have never lost a member of staff. Our clients and contacts know us all well and we have satisfying, long-lasting relationships.

And because we don’t pay performance-related bonuses we can invest more time in looking after our clients and getting on with the serious business of helping them win their compensation claims, which is what we’re here for after all.

 

If you want help with your compensation claims (actions against the police, accident claims, or professional negligence) contact us via the form on this page or call 08000 124 246.

 

 

Can the Police Be Trusted with Body Cameras?

Photo of Kevin Donoghue, solicitor, who asks if the police can be trusted with body cameras.

Kevin Donoghue, solicitor, asks if the police can be trusted with body cameras.

By Kevin Donoghue, Solicitor

A little under a year ago I wrote about the roll-out of police body cameras. (Read the blog here.) In that post I noted that these tools can have a positive effect on policing, reducing both the number of complaints and the use of force. But I cautioned that they should be used in every interaction with the public, and that the police’s current policy of allowing officers to turn the body cameras on and off was bad idea.

For some police officers the presence of body cameras is not enough to change their behaviour. As a result, I am now seeing cases where police misconduct is caught on body cameras, or “body worn cameras” as they are more properly known (BWCs, which produce body worn video, or BWV).

In the ongoing case I describe below, body camera technology helped avoid a serious miscarriage of justice, but in doing so the officers involved may have learned the wrong kind of valuable lessons.

(What follows is a combination of my client’s evidence, the police’s body camera footage, and the officers’ own evidence. As this case is ongoing, names have been withheld for privacy reasons.)

Police Body Cameras Record Arrest

On a fine, sunny day in August 2013, my client Mr A was arrested for these offences:

  • Breach of the Police (a public order offence);
  • obstructing the police in the execution of their duty; and
  • resisting arrest.

He was a man of good character having never had any previous contact with the police.

But on this occasion Mr A had committed a minor traffic infringement. He needed to collect a birthday present from Argos and believing that he would collect it and be back in a few minutes, he parked illegally in the busy town centre near his home.

Unfortunately for Mr A, his car was spotted and when he returned, he came across a female police officer and a male special constable writing out a ticket and carrying out checks on his car.

Realising his mistake Mr A was immediately contrite and apologetic. He tried to explain himself but the officers were having none of it. Feeling ignored, he became upset.

Mr A is an American who, on this occasion, lived up to the stereotype. In explaining himself he came across as loud, enthusiastic, and brash.

Unfortunately his behaviour was misconceived by the female officer as aggressive and she called for backup.

My client was due to attend work. When he realised he was late, he simply asked that the officers issue the ticket and let him go on his way. But bizarrely, the simple issue of the ticket took some time.

In the meantime, in response to the WPC’s emergency “10/20 call”, a vehicle carrying three officers was sent to the scene. While they drove to the scene the female officer confirmed to her colleagues that my client had calmed down and implied that all was well.

Despite this the police car arrived at speed with emergency sirens and lights flashing.

One of the police officers, who I will refer to as “PC X”, emerged from the vehicle in a short sleeve shirt and leather gloves. To my client, he looked like a doorman or enforcer of some kind.

PC X took the lead in what followed and later provided a full statement. In it he said that he saw an illegally parked car and two officers talking to my client, described by them accurately as a white male, 6ft 1 inches tall, of large build, aged around 35-50, and wearing a distinctive work uniform.

PC X said Mr A was shouting, “Does giving a ticket take 40 minutes? I’ve got to go. Hurry up”.

He said that my client appeared agitated with both hands in his pockets. He shouted at any officer that asked him a question and failed to listen to any directions given. The officer said, “From his gestures and pacing around, I took his stance as being hostile and aggressive”.

PC X said that Mr A was “asked on several ocasions (sic) to stop shouting, relax and calm down”, however he appeared to ignore this advice.

The officer continued, “I explained that his actions were liable to make him arrestable to prevent a Breach of the Peace as the area in which we were stood was very busy with members of the public. I would estimate approximately 25–30 persons were in listening distance of the male. I….told him that if he continued to shout he would be arrested. I then explained that the best advice I could give him was to not talk and only answer questions when asked. This appeared to agitate him further where he then began to verbally abuse me directly saying something similar to ‘Oh you’re the big man/cop’. He then continued to shout where I took hold of his right arm and explained that he was now under arrest for a breach of the peace.”

My client was then manhandled, grappled to the ground, and sprayed in the face with PAVA “captor” incapacitant spray (also known as “pepper spray”). He was handcuffed to the rear. The taste of captor is extremely unpleasant and my client tried to spit it out onto the ground. Seeing this, the police covered his head with a spit bag.

They put him in leg restraints and took Mr A to the local Police Station where he was processed and detained.

Body Cameras Reviewed

Fortunately the incident was caught on two officer’s body worn cameras. The quality (both visual and audio) is superb.

At the police station it was decided that my client would be detained so further evidence could be obtained and Mr A could be interviewed. A new officer was assigned to the case. He considered the evidence and watched the body camera footage.

That officer was immediately concerned and handed the file to a supervisor who carried out a further review alongside her co-supervisor. The following is what the supervisor saw and noted. Compare it with the description given in the statement by the officer above (my emphasis in bold):

“The ….officers arrive at scene ….. at approximately 16:30 hours. 

 The footage at this point records PC X opening the conversation with Mr A, saying “hello mate” and “how are we doing” to which Mr A replies “I’m just trying to get my ticket and get back to work”. PC X asks why he’s being aggressive to which Mr A replies “I haven’t been aggressive” and remains standing still with his hands in his pockets. Please note that Mr A maintains this non-confrontational stance throughout the incident until he (sic) taken to the ground later. 

 The situation deteriorates from this point as PC X becomes increasingly confrontational and continues to accuse Mr A of being aggressive. It can be seen from the body language that PC X is getting irritated because Mr A is remaining passive and refuses to be provoked into joining the confrontation.  PC X then accuses Mr A of not answering his questions although in fact he has not asked him anything. He then calls Mr A “a dick” at which point Mr A remonstrates with him asking why it is okay for (police) to say that sort of thing? 

 PC X then arrested Mr A for breach of the peace and for section 5 POA. 

 Although Mr A remained non-confrontational throughout the incident, repeating that he was being calm and that he wasn’t being aggressive, PC Y then tells Mr A not to be obnoxious; at this point he is taken to the ground and PC Y deploys her captor spray. Then Mr A can be heard asking for water as he is “burning up”.

 PC Y can be seen in the BWV footage to kneel on Mr A’s lower back although he is not struggling. PC X accuses Mr A of spitting at him so he is placed in a spit hood. We established later that Mr A was trying to clear his airway from the effects of the spray. 

 The most obvious issue with this incident is in fact there was no necessity to arrest Mr A. …. He did not commit a breach of the peace; he did not breach public order and he did not resist arrest. The entire incident was escalated by the officers attending. A more courteous and good humorous approach would have no doubt resolved the matter. 

 When I viewed the CCTV footage my immediate concern was that the officers’ use of force was excessive in the circumstances – I could not see the necessity to take Mr A to the ground and then also captor spray him. I also felt that the officers failed to treat Mr A fairly or appropriately by refusing to listen to his side of the story. PC X’s conduct deteriorated into orally abusing Mr A and then arresting him for offences he had not committed. 

…..

I would say that PC X on this occasion breached the …. police code of conduct and such behaviour brings the police into disrepute.

The supervisor’s colleague also provided a report & advised that (again, my emphasis in bold):

“From viewing the BWV it was my opinion that as soon as PC X got out of his police car his attitude was ‘bullish’ and continued throughout the remainder of the incident. Prior to him being restrained, Mr A’s hands were in his pockets the whole time, he was never rude to the police officers and was polite to them, he was not shouting and I felt that PC’s X and Y did not respect the fact he was American and their accent is sometimes louder than other accents. PC X was extremely unprofessional by calling Mr A a ‘dick’, it undermined everything else PC X did during the remainder of his contact with Mr A, especially as he later threatened to arrest him for swearing, when PC X did exactly the same.

 I felt that the situation was dealt with very poorly. As police officers we are employed to display excellent communication skills at all times – this was not displayed by either PC X or PC Y at any point, they did not take the time to listen to Mr A to establish why he was upset and then try to resolve the situation, they just kept telling him to ‘calm down and ‘be quiet’. In my opinion they were not working in line with …..police values, they did not show any compassion towards Mr A by taking the time to listen to his point of view, they were just content on trying to keep him quiet and seem to get annoyed when he continued to talk which he is perfectly entitled to do. Police officers are meant to have patience to deal with difficult customers and situations but as soon as Mr A suggested to PC X that he didn’t have any crime to deal with PC X seemed to lose his patience and arrest him for breach of the peace which Mr A had not done. I do not feel that they treated Mr A fairly and certainly did not do the right thing.”

Police Misconduct Caught on Body Cameras

The police body camera footage allowed the supervisory officers to carry out a swift review and establish not only an unlawful arrest but also excessive use of force. As a result, my client, an innocent victim of police misconduct, was released within a short time without charge. Shamefully, the officers involved did not apologise.

And I have no doubt that, without this review, my client would have been charged, prosecuted and, if the magistrates had been deceived at trial, wrongly convicted. 

This case also highlights possible problems in the future. Misconduct proceedings were brought against PC X, the officer in question. Despite his aggressive behaviour and subsequent brazen misrepresentations, his punishment was not instant dismissal.

Instead he was given “management action”, i.e. a slap on the wrist. This means that this rogue officer and his colleagues are still on the streets. They now know how effective body camera footage can be and that it will be used against them if they misbehave.

Next time these officers attend a similar situation, what are the chances that they won’t activate their body cameras?

 

If you have suffered as a result of police misconduct contact me via my firm’s website or call me on 08000 124 246.

 

 

 

 

 

Donoghue Solicitors Short-listed for Two Liverpool Law Society Legal Awards

By Kevin Donoghue, Solicitor

I am delighted to announce that my firm, Donoghue Solicitors, has been short-listed for two awards in the prestigious 2015 Liverpool Law Society Legal Awards.

We are up for the Niche Law Firm of the Year and Small Law Firm of the Year Legal Awards, along with only two other firms in each category.

Read the full list of firms on the Liverpool Law Society website here.

Donoghue Solicitors have been shortlisted for the 2015 Liverpool Law Society Legal Awards. Solicitor Director Kevin Donoghue,  is pictured here with some of his team including wife Stephanie, Daniel Fitzsimmons, and Hannah Bickley.

Donoghue Solicitors has been short-listed for two awards in the 2015 Liverpool Law Society Legal Awards. Solicitor Director Kevin Donoghue (right), is pictured here with some of his team including wife Stephanie, Daniel Fitzsimmons, and Hannah Bickley.

Donoghue Solicitors has been short-listed in the niche law firm category as we specialise in civil actions against the police. We are nominated in the small firm category as Donoghue Solicitors is a law firm which employs less than 30 people.

Liverpool Law Society Legal Awards Nominations

The Liverpool Law Society Legal Awards is a bi-annual event. It is big news in the legal profession due to the size of Liverpool Law Society and the calibre of firms in the region. There are over 2,200 members in Liverpool Law Society, working for all kinds of law firms throughout Merseyside and the North West. This year a record number of firms were nominated in 14 categories. We are honoured to be short-listed in two of them.

The Society, which was founded in 1827 and is one of the leading law societies in England and Wales, takes the awards seriously. This isn’t a reality show-style popularity contest. The judges only select firms on merit based on strict criteria.

A few weeks after our nomination the Society invited me to an interview by a panel comprising a leading QC judge, former past president, law professor, and councillor. They only short-listed my firm after that grilling and a thorough review of evidence including client reviews, some of which you can read here.

Image showing that Donoghue Solicitors has been short-listed for the Niche Law Firm Award in the 2015 Liverpool Law Society Legal Awards.

Donoghue Solicitors has been short-listed for the Niche Law Firm Award in the 2015 Liverpool Law Society Legal Awards.

Among other things, the panel wanted to know:

  • how we contribute to the reputational benefit of Liverpool and the surrounding areas;
  • what we are doing to develop our particular niche area;
  • what innovations we have brought to the law and client service;
  • how we represent “law at its best”; and
  • what goals and targets we have achieved.

I was able to tell them about:

Image showing that Donoghue Solicitors has been short-listed for the Small Firm Award in the 2015 Liverpool Law Society Legal Awards.

Donoghue Solicitors has been short-listed for the Small Firm Award in the 2015 Liverpool Law Society Legal Awards.

2015 Liverpool Law Society Legal Awards Ceremony

The 2015 Liverpool Law Society Legal Awards will be presented at a black-tie awards ceremony in Liverpool on Friday 15 May. As a “thank you”, I will be taking my team, their partners, and my parents to the event.

I am thrilled that our hard work has been recognised and thank the Liverpool Law Society nominations panel, our clients, staff, and families for helping us get this far.

 

 

Five Ways to Cut Police Complaints

Photo of Kevin Donoghue, Solicitor, who suggests how to reduce police complaints.

Kevin Donoghue, Solicitor, suggests how to cut police complaints.

By Kevin Donoghue, Solicitor Director of Donoghue Solicitors

Yesterday, the Independent Police Complaints Commission (“IPCC”) published its Police Complaints Statistics for England and Wales Report for 2012-2013 and 2013-2014. (The IPCC is responsible for overseeing the system for handling complaints against the police.)

The report is grim reading. It shows that police complaints are at record levels, the system for dealing with them is broken, and that meddling politicians made things worse. Here I propose some practical solutions to improve things for the police, the IPCC, and the public.

IPCC Police Complaints Report

The main points from the IPCC’s report, which you can read in full here, are:

  1. There were 34,863 complaint cases recorded in 2013-2014, a record high since the IPCC was established in 2004.
  2. This number is 15% more than 2012-2013, and 52% more than 2004. 38 forces recorded an increase in 2013-2014 compared to the previous year. 37,032 people serving with the police were subject to a recorded complaint, an increase of 6%. 88% of them were police officers.
  3. As complaint cases can include multiple allegations (e.g. police assault, false imprisonment and neglect of duty) the number of allegations recorded was 61,694 in 2013-14, a 10% increase on the previous year.
  4. People mostly complained about police neglect or failure of duty (30% of allegations). After the vague “other categories” (29%), complaints about incivility, impoliteness, and intolerance were next (15%), followed by assault (10%), oppressive conduct or harassment (6%), lack of fairness and impartiality (5%), and lastly, unlawful/ unnecessary arrest or detention (also 5%).
  5. The figures are slightly skewed by the broadening definition of a complaint to include “direction and control” in 2013-2014. This accounted for 4% of all allegations, and includes complaints about general policing standards, operational policing policies, organisation decisions, and operational management decisions.
  6. The IPCC use an allegation rate per 1,000 police force employees to compare allegations across all forces. The average rate increased in 2013-2014 to 251 allegations (compared to 228 in the previous year). The range was 98 to 436 allegations per 1,000 employees.
  7. In 2012-13 the IPCC dealt with 6,203 appeals. In November 2012 the appeals process changed so in 2013-2014 the IPCC dealt with 4,079 appeals, and chief officers in the police handled 3,134. Overall, appeals increased 16%.
  8. The IPCC compared statistics on how chief officers and IPCC staff dealt with appeals. In 2013-2014 20% of all appeals dealt with by chief officers were upheld. The IPCC upheld 46%, more than twice the amount.
  9. In 2013-2014 men made up 64% of complainants. 51% were White.
  10. In the “Discussion” section of the report, the IPCC refer to their own research from a survey in early 2014. They found that more people came into contact with the police in the previous 12 months than in 2011 (23% compared to 20%), and that they were less happy with their interactions (66% compared to 76% in 2011).
  11. They reported that people were more willing to complain (73% in 2014 compared to 68% in 2011), which may partly explain the rise in figures. But they noted that ethnic minorities are 9% less likely to complain that the White population and that young people are less likely to complain than people over 25.

In summary, the IPCC report shows that police complaints are increasing, that senior officers are quicker to dismiss them, and that the public is more dissatisfied with the police.

Police Complaints Plan

Nothing will change without action, so here’s a simple, five-point plan to cut police complaints:

i. Scrap the Police Reform and Social Responsibility Act (2011)

This Act, which came into effect on 22 November 2012, radically changed the police complaints procedure.

Now, except in very limited circumstances, if the complainant is dissatisfied with the outcome of the initial investigation, a “Chief Officer” in the same force will deal with the appeal unless the complaint itself is about a senior officer, it would justify criminal and/ or misconduct proceedings or a breach of rights under Article 2 or 3, or the complaint is referred to the IPCC.

The IPCC’s report shows how the police abuse this set up. As I note at point 8 above, the IPCC uphold more than twice as many appeals compared to chief officers (20% compared to 46%). Or, to put it another way, 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.

With odds like that, it’s no wonder that people’s initial complaints are routinely dismissed before appeal. Chances are, the Chief Officer will agree.

Changing this system by taking Chief Officers out of the equation will help to put genuine independence back into the complaints process.

ii. Replace the internal Police Standards Departments (“PSD”) with independent IPCC units

It is often said that “Not only must Justice be done; it must also be seen to be done.”

Allowing a police force’s PSD, or internal investigations unit, to investigate their own officers is a clear conflict of interest. By taking the complaints investigation process away from them and putting it in the hands of independent investigators from the IPCC:

  • the public will gain confidence in the system;
  • complaints and appeals will be properly investigated;
  • senior officers will take the complaints process more seriously; and
  • serial offenders in the police will know that they can’t get away with repeated police misconduct.

The police and politicians may say this would increase costs and bureaucracy. Not so. If the PSDs are replaced with equivalent IPCC staff there would be no net increase. And finding these IPCC officers would be easy. Retiring police officers with good complaints records and a positive attitude to complaints could do the job, provided they didn’t investigate their own forces or officers they know.

iii. Incentivise police forces through financial rewards/ penalties

The present system has no rewards or sanctions to deal with police complaints properly. Linking funding to (independently vetted) complaints targets means that Chief Constables will prioritise police complaints, and by extension improve the conduct of their officers, which ought to lead to fewer complaints and instances of police misconduct.

Chief Constables could extend this system to their staff, so that they consider a police officer’s complaints record when reviewing salaries or promotions. That way the officers with the best records would be rewarded, which in turn would lead to a wholesale improvement in standards as those officers get promoted and instill a positive attitude in their staff.

iv. Compulsory annual training for all police staff and officers on the law, conduct, and complaints

The IPCC report highlighted the main reasons for police complaints (see point 4 above). “Police neglect or failure of duty” is the most common cause for complaint. This can take many forms, including mistakes made due to ignorance of the law. In my practice I regularly help people who have been unlawfully arrested or otherwise suffered police misconduct because police officers don’t know the law, such as in breach of the peace cases. (I wrote a blog post to explain breach of the peace law to police officers a while ago. Despite this I still receive many enquiries from clients who have been unlawfully arrested for this offence.)

Training to maintain expertise is common among the professions. For example, solicitors undertake a minimum of 16 hours “continuing professional development” a year. By ensuring that all officers attend regularly updated training courses on the law, conduct, and complaints they would be better able to serve the public. Training should include “soft skills” like civility and politeness. This would help cut complaints about the police’s high-handed and arbitrary behaviour.

v. Senior Police Officers to lead a culture change

On Monday BBC Radio interviewed me about the IPCC’s report. You can hear it here:

The interview focused on the rights of people to complain and, where necessary, claim compensation, as often the two go together. I stressed that we must protect our fundamental rights, such as the right to liberty. But if the police abuse our rights we should have the right to complain and, if appropriate, seek justice in the courts.

I regularly hear from people who have complained to the police after mistreatment. Because solicitors do not get paid for dealing with police complaints, most people try to deal with the police direct. The police’s failure to treat them and their complaint properly often leads people to contact solicitors like me who specialise in actions against the police. In some circumstances, like in this case study, we discuss other options such as claiming compensation from the police and seeking a formal apology. Often, the police’s apology, which is free and could have been given before getting solicitors involved, is more valuable to my clients than the money.

After my interview, listeners heard from Deputy Chief Constable Veale of Wiltshire Police. He made some curious comments. The Deputy Chief Constable said that Wiltshire Police’s 23% increase in complaints was “anticipated” because they take an “overly cautious approach to recording complaints”. Despite the increase he said that they provide an “incredibly good” service. Surely, if they were doing such a good job, fewer people would have cause to complain so their complaints record would be better than the national average of 15%?

The Home Office reported that, as at 31 March 2013, there were 129,584 full-time equivalent police officers in the 43 forces of England and Wales. In organisations this large and complex culture change comes from the top. Senior police officers need to focus on the cause of police complaints not the symptom. If police officers act within the law and treat people with dignity and respect then the public have no cause for complaint.  Concentrating on this core principle will cut police complaints, compensation claims, and improve the public’s increasingly negative view of them.

You would think that this would be obvious. But instead of getting their own house in order the police blame innocent victims of police misconduct. (I recently wrote about why attacking the non-existent “compensation culture” in police claims is nothing more than misdirection designed to deflect attention from the failings of the police themselves.)

DCC Veale’s answers, coupled with Norfolk’s Chief Constable Phil Gormley’s repeated blame of the “compensation culture” in this BBC interview, suggest that police management need to switch their focus. Chief Constables and their Deputies must stop blaming the non-existent “compensation culture” bogeyman, or patting themselves on the back for setting up committees, while ignoring the obvious criticism in the IPCC report and avoiding real change to the way they operate. It helps no one, especially the police themselves.

Effort

Public dissatisfaction with the police is higher than ever. It’s time to cut police complaints by addressing the way the police conduct themselves both before and after a complaint is made.

I appreciate that these five ways to cut police complaints involve a lot of effort, not least from politicians and senior police officers who have a vested interest in things staying as they are. But we, as the taxpaying public who are subject to the police’s conduct, deserve better. Let’s see if we get it.

 

If you want to claim compensation against the police contact me on 08000 124 246 or via my firm’s website. If you liked this article please click below to tweet it.[ctt tweet=”Kevin Donoghue, solicitor, suggests 5 ways to cut #police complaints (source: @donoghuelaw): http://ctt.ec/QHf21+” coverup=”QHf21″]

 

 

 

 

The Compensation Culture Trick

Photo of Kevin Donoghue, solicitor, who discussed the "compensation culture" on BBC Radio.

Kevin Donoghue, solicitor, discussed the “compensation culture” on BBC Radio.

By Kevin Donoghue, Solicitor Director of Donoghue Solicitors

Yesterday, James Whale of BBC Radio Essex interviewed me about the “compensation culture” and a Freedom of Information Act request showing compensation paid by Essex Police between 2011-2014. The BBC contacted me as I am a solicitor who specialises in actions against the police who has successfully sued Essex Police for compensation.

The interview focussed on why people receive compensation, how they go about claiming it, and whether there is a “compensation culture”. You can hear it here:

Mr. Whale followed a well-trodden path when he asked me about the so-called “compensation culture”, but to be fair to him, it was just one question in a wide-ranging and thought-provoking interview.

I pointed out that, by discussing the “compensation culture”, he seemed to be focussing on personal injury damages, which, despite the government’s efforts, are still promoted in cheesy adverts on daytime t.v.

The media, police, and government continue to trot out the idea that we are all a bunch of despicable compo-grabbers, claiming compensation for everything and anything, and taking money away from front-line services like the police in the process.

Only last year Norfolk’s Chief Constable Phil Gormley was interviewed on BBC radio about one of his own officers who was making a claim after getting injured at work. He repeatedly blamed the “corrosive compensation culture” for her decision to seek compensation, saying that “it generates a something for nothing attitude”.

As my analysis of the Essex Police figures shows, this is not only wrong, but misses the point and masks the true reasons for seeking redress in the first place.

Freedom of Information Act Data

Essex’s population is about 1.6 million people, served by 3,600 police officers (so the police make up only 0.225% of the total population). The BBC’s Freedom of Information Act request confirmed the following:

2011    Damages paid to members of the public £177,230.04

2012    Damages paid to members of the public £105,350.09

2013    Damages paid to members of the public £149,911.14

2014    Damages paid to members of the public £139,113.69 (to the 15 December 2014)

The following categories of claim are used to record information and payments could be made in any one of these categories: Unlawful arrest / False imprisonment, property damage / loss, dog bites, assault, negligence, breach of Human Rights, breach of data protection.

 2011    Damages paid to Police Officers or Police Staff £20,039.85

2012    Damages paid to Police Officers or Police Staff £135,682.13

2013    Damages paid to Police Officers or Police Staff £47,762.15

2014    Damages paid to Police Officers or Police Staff £241,464.50

The claims are recorded under the single category of Employer Liability Claim but will include : Injury at work claims, stress at work claim, damage caused to personal property whilst on duty, acts of negligence by police officers / police staff.

  • The figures do not include redundancy payments.
  • The figures do not include payments awarded in Employment Tribunal claims
  • The figures do not include ex-gratia and property damage claims
  • The figures do not include motor claims

 

Analysis of Data

These figures show the following:

  1. Between 2011-2014 the total for claims made by the public was £571,604.96. Police officers and staff received £444,948.63. The grand total for all claims paid was £1,016,553.59.
  2.  Essex Police officers and staff account for 44% of all compensation claims paid by the Force despite them making up less than a quarter of a per cent of the region’s population.
  3. Payments to the public over the four-year period were £0.36 per person. Compensation payments to the police and staff were £123.60.
  4. Compensation claims made by the public (all 1,596,400 of them) are broadly going down, so that in 2014 they recovered only 37% of the total paid out by Essex Police. By contrast the Force’s police and staff received the lion’s share of compensation in 2014: 63%.
  5. In the four-year period, compensation claims made by Essex police and staff against their employers have sky-rocketed, from a low of £20,039.85 in 2011 to £241,464.50, an increase of 1205%.

Over half a million pounds in four years looks like a lot of money paid out to the public.

But is it? Compared to police officers and staff, payouts to ordinary citizens are almost non-existent. Police officers and staff themselves claim almost as much money from their employers despite being a tiny proportion of the overall population.

Bear in mind that, according to the Freedom of Information request, the police’s compensation claims include, among other things, the same kinds of claims as the public. (ie. negligence claims by police officers/ staff, such as false imprisonment, unlawfully executed police warrant claims, malicious prosecution and misfeasance in public office claims, etc.)

Full disclosure: although most of our clients are ordinary members of the public, Donoghue Solicitors also represent police officers in these claims when they are treated as ordinary citizens instead of employees. Despite their jobs, police officers and staff can be victims of police misconduct too. It’s strangely comforting to think that the police don’t discriminate when abusing their powers.

And it is worth remembering that, regardless of who claims compensation, whatever money paid is well deserved. Police forces only pay out in actions against the police when they have to. Winning claims against the police is hard because they have statutory protections so they can do their jobs effectively without fear of prosecution. As a result, compensation is only paid in appropriate circumstances where police misconduct is clear.

Compensation Culture Myth

This official data shows that the public are making relatively few claims and being paid only in deserving cases.

I’ve written about this in the past but it bears repeating as the message doesn’t seem to be getting through: there is no such thing as a compensation culture.

The government, police, and media are wrong in focussing purely on compensation, especially in actions against the police. Why?

Because there’s more to making a claim than getting paid compensation.

Many of my clients want things that cost nothing like:

  • an apology
  • a promise of protection from future police harassment
  • an acknowledgment that the police made mistakes and a promise that they will put things right
  • an assurance that the police will receive training so others don’t suffer.

In short: they want justice.

A recent case of mine proves this point.

Essex Police made an error when they wrongly effected a police warrant at my client’s flat looking for drugs. He was held for 1 hour 20 minutes while they searched his flat and established that he had no drugs on the premises and was not a criminal.

They did not apologise at the time and, to make matters worse, Essex Police officers brought along a journalist from the local newspaper. The press published pictures of the flat door, showing the house number, and an arrested man’s face, which they blurred in the photograph. Anyone reading the paper who knew my client would have been in no doubt that he was a drug dealer, and not a respectable businessman.

My client was understandably upset and complained to Essex Police. He instructed me to make a claim because they ignored his complaint.

I helped him receive £4,000 compensation and costs but, more importantly for my client, he got an apology and offer to publish a retraction in the newspaper.

I suspect that he would not have claimed compensation if the police contacted him on the day of the raid and gave him an immediate apology, published a retraction, and re-assurance that they would not trouble him again. The fact that they did not offer that simple, and free, solution led to his compensation claim and a payment of thousands of pounds in compensation and legal fees.

Misdirection

I’m sure Essex Police were quietly happy that the Freedom of Information request did not also include a demand for details about whether police complaints had been made and/ or resolved before they received the compensation claims. The police have set the agenda so successfully that no one thinks to ask.

By concentrating solely on compensation, the authorities are cleverly pointing the media and unsuspecting public in the wrong direction. They can paint genuine claimants as grasping opportunists to discourage:

  • legitimate claims;
  • criticism of their misconduct; and
  • questions about their methods when confronted with a complaint.

Instead of more nonsense about the “compensation culture”, surely this is issue politicians and media should investigate. The public have a right to know why the police are spending taxpayer money before offering free remedies. But this puts the spotlight back on the police, and they don’t like that one bit.

 

If you want help claiming compensation from the police contact me on 08000 124 246 or complete the form on my firm’s website.

 

 

A Police Claims Solicitor’s Christmas Wish

Photo of Police Claims Solicitor Kevin Donoghue.

Police Claims Solicitor Kevin Donoghue.

By Kevin Donoghue, Police Claims Solicitor and Director of Donoghue Solicitors

Can you believe it’s nearly the end of 2014?

As a police claims solicitor, this year I used the firm’s blog to highlight issues I came across in daily law practice.

As my blog posts show, there are lots of areas of concern. My Christmas wish is for 2015 to see things improve. Here’s why, and how this can happen.

Police Claims Solicitor Blog Posts

In January I suggested the police and their solicitors make three New Year’s resolutions:

  • Think of the police force’s money as your own
  • Treat people as you would want to be treated
  • Respect your opponent.

Unfortunately, this message was not heard. During the course of the year I repeatedly dealt with negative police tactics. They abused the court system to try to avoid responsibility for police misconduct.

When I defeated the police’s solicitors at court my clients benefitted as their claims could progress. But frustratingly the police solicitors’ actions caused delay, which helps no one, and the courts ordered the police forces involved to pay wasted legal costs. (In reality, you and me as taxpayers picked up these unnecessary extra bills.)

As I said nearly a year ago, this is plain wrong. The police’s solicitors should not misuse the legal process, and taxpayers should not have to foot the bill.

But seven months later I was compelled to remind the police’s own solicitors how ethics rules work. I urged them to remember their legal and moral obligations for the proper administration of justice. In 2015 I hope they will.

Breach of the Peace Solicitor Help

Turning to the “bobby on the beat” I asked if the police know the law in breach of the peace cases.

This piece came about because I received many requests for help from people who had been wrongfully arrested for “a breach of the peace”.  I explained the law in clear, simple language that a police officer on the beat could understand. I hoped that the police’s highly-qualified and expensive solicitors would read it too, to avoid wasting time and money fighting claims. Still the calls to represent people who had been unlawfully arrested for breach of the peace kept coming.

Police Misconduct Cases

I also sought a change in the police’s body camera policy as I disagreed with the proposal that the police’s cameras did not have to be filming at all times when they were on duty. The guidance that police officers could selectively use body cameras seems wrong to me. The police could abuse it to avoid filming incidents where they misbehave.

As I pointed out, it’s not just innocent people involved in episodes of police misconduct who benefit from the proper use of body cameras. The police get valuable protection from complaints and claims too. And it’s good for society. The widespread civil unrest caused by the fatal shooting of Michael Brown in Ferguson, USA, could be avoided here with body camera evidence removing doubt.

Fortunately, as many people have smartphones with video cameras, bystanders filming police misconduct became more common in 2014. In July I reviewed a police assault shown on Facebook and suggested that the injured man seek legal advice. I hope he has.

Taser assaults were in the news this year, which is not surprising when you consider that the police used Tasers more than 10,000 times in 2013 alone.

I reviewed the evidence and wrote about why the police’s policy with these potentially deadly weapons is wrong. I urged the police to agree ethical standards across all forces. Unsurprisingly, we’re still waiting.

Police Claims Funding Threat

As a police claims solicitor I worry that recent changes in legal funding could potentially have far-reaching consequences for our civil liberties. In November I asked the government to extend “qualified one way costs shifting” to cover all actions against the police, including those where the victim did not get injured. I’m hopeful that they will do this in the New Year, but as always with the current government when it comes to citizens’ rights, I won’t hold my breath.

Christmas Wish

On many occasions I asked for something that we have the right to expect: for the government, police, and their legal representatives to act responsibly and ethically.

If I have one Christmas wish this year it’s that they think about this seriously. These people are public servants, after all. There’s a clue in their name about whose interests they are meant to serve.

Thanks

In 2013 there were 129,584 full-time equivalent police officers in England and Wales according to the most recent government statistics. I fight against police misconduct daily but know that they’re not all bad. The majority are doing a good job in difficult circumstances. I am sure we all appreciate the hard-working and decent police officers who have carried out great work throughout the year.

On a more personal note I take this opportunity to thank all of our clients, contacts, staff, family, and friends for your support this year.

Thanks to you we’ve had a busy, but fulfilling, year at Donoghue Solicitors.

We‘ve been in great demand for our services in actions against the police, accident claims, and professional negligence matters.

We’ve won lots of claims for our clients, recovering hundreds of thousands of pounds of well-deserved compensation for people who have suffered through no fault of their own.

And along the way we’ve raised money for charity and helped in our local community.

Donoghue Solicitors would not exist without you, and I am deeply grateful to all who make this a successful firm. Helping people who have suffered through no fault of their own is my passion. I am fortunate to do that every day.

From everyone here at Donoghue Solicitors, I wish you a merry Christmas and a very happy 2015.

Kevin

P.S. If, like me, you have young children, you might enjoy this interactive Santa tracker from google. It’s fun, free, and will give the kids something to do while you’re wrapping the presents!

 

If you want help from a police claims solicitor, contact Kevin Donoghue on 0151 933 1474 or fill out the simple form on the website.

 

 

 

Without changes to QOCS, could Ferguson happen here?

It’s said that when America sneezes the rest of the world catches a cold.

If the government doesn’t take urgent action to change its policy on Qualified One Way Costs Shifting (“QOCS”), we might need to get an industrial-sized box of Kleenex® ready.

Kevin Donoghue, solicitor, explains why.

Photo of Kevin Donoghue, Solicitor, who explains why QOCS rules must change.

Kevin Donoghue, Solicitor explains why QOCS rules must change.

In August this year Darren Wilson, a white police officer, killed Michael Brown, an unarmed black man.

Despite taking place 4,000 miles away, the story is relevant here because there are similarities between our legal systems.

The killing in Ferguson, a suburb of St. Louis, Missouri, USA, sparked months of riots and protests across America about perceived racism in the police.

On Monday, 24 November, a grand jury convened by the state of Missouri decided not to indict Officer Wilson on charges of murder, manslaughter, or armed criminal action. He will not be prosecuted in the state’s criminal courts with these charges.

Michael Brown’s parents urged calm when the decision was announced, but their wait for justice continues.

So what can they do now?

Compensation Claim

The grand jury slammed the door on state criminal proceedings but a federal (government) investigation continues.

Even if that fails to bring Officer Wilson to justice, the family may still have the right to launch a civil claim against Officer Wilson (and St. Louis police) for wrongful death.

Taking actions against the police in civil court is an important part of the justice system. It steps in where criminal law fails.

It ensures that if Officer Wilson does not face jail time he, and the police force which employs him, could be made to pay compensation to Mr. Brown’s family.

Although compensation can’t bring their son back, a civil court judgment against the police might help the family achieve a sense of justice and closure.

Photo of a Ferguson protest.

People have been protesting about Ferguson since Michael Brown’s shooting.

Civil Claim Against the Police

Using the civil courts to seek justice mirrors my experience.

As a solicitor who specialises in civil actions against the police, I represent people who have been failed by the police, courts, and the criminal justice system.

For them, seeking justice is often more important than receiving compensation. An apology and/or court judgment can help ease the suffering they have endured and put the police’s misconduct in the past.

For example, my clients A.A. and H.A. initially received only a cursory apology from the Metropolitan Police after armed officers wrongly conducted a dawn raid at their home.

During the raid police assaulted both men. Afterwards they were afraid to be in their own home.  (You can read the full case study here.)

Feeling angry, upset, and mistreated; they contacted me as I am a solicitor who specialises in claims against the police.

I sued the Metropolitan Police for:

  • assault,
  • negligence,
  • trespass,
  • false imprisonment, and
  • breach of the Human Rights Act (right to respect for private and family life).

The Metropolitan Police denied liability, saying they had acted lawfully. And they said that there was no evidence my clients had suffered injuries even though they needed medical attention after the police assault.

This only increased my clients’ sense of injustice.

I prepared the case for trial but, late on, the Metropolitan Police entered into sensible negotiations. I eventually settled both my clients’ claims for £18,000 plus full legal costs and, importantly for them, obtained a full apology from the police.

Both clients were happy that justice had been done and that the police accepted their mistake.

Civil Liberties Threat

Without an independent solicitor like me fighting in their corner, A.A. and H.A. would not have received justice or closure.

Why? Because solicitors who represent victims of police abuse are willing to take on the police when their clients have been abandoned by the Crown Prosecution Service or Independent Police Complaints Commission.

It matters to everyone, including the police themselves, that police misconduct is challenged.

We all benefit when brave citizens take on the State because:

  • police procedures and training are reviewed and improved;
  • individual police officers are held to account and “bad apples” disciplined or sacked;
  • government policy can be influenced; and
  • society sees that justice is done and the Rule of Law upheld.

This last point is crucial. The Ferguson, Missouri, demonstrations show what can happen when the public feel aggrieved.

With all these benefits, you would think that the government would be keen to support solicitors and their clients who bring actions against the police.

Not so.

In itself, civil law is complicated and actions against the police cases are hard to win. But recent government policy towards legal funding suggests that it is determined to make it harder to bring a civil claim.

By doing so, the government is eroding access to justice and, with it, our civil liberties.

Unfair QOCS System

I have previously written about the disastrous impact of the Legal Aid, Sentencing, and Punishment of Offenders Act (2012) (“LASPO”) which came into effect on 1 April 2013.

LASPO introduced Qualified One Way Costs Shifting (“QOCS”) costs protection in personal injury claims.

Even though actions against the police are civil liberties cases at heart, they have been lumped in with whiplash, tripping accidents, and other personal injury claims. This is because personal injury is often part of these cases. For example, there could be a police assault claim for injuries sustained when applying handcuffs during arrest.

The QOCS system has made actions against the police with personal injury claims harder to bring because:

1. QOCS could leave successful claimants short-changed

Pre-LASPO, if the successful claimant won, they recovered their full legal costs and insurance from the responsible party. If they lost, after the event insurance covered all costs except their own legal fees, which were usually covered by no win no fee agreements.

This gave the innocent victim of police misconduct peace of mind that they would not suffer financially as well as physically and emotionally.

Post- LASPO, successful claimants now have to pay their own lawyer’s “success fees” and after the event insurance (if obtained) from their damages. This could discourage claimants as it might leave them with less compensation than they would have received before April 2013.

2. Uncertainty about the extent of QOCS protection

The main advantage of QOCS is that, unless exceptional circumstances apply, a personal injury claimant who loses their case will not have to pay their opponent’s legal costs. And if they have a no win no fee agreement with their solicitor, they don’t have to pay their own legal fees either. As a result, they are left only with their expenses (“disbursements”) to pay. This is useful, but not as good as the old system which provided them with full costs protection either way.

The problem with QOCS in police claims is that it is unclear if it applies to the whole claim or just the personal injury part, and it does not apply at all to cases where no personal injury is claimed, such as trespass cases.

I ran H.A. and A.A.’s cases under the old system so they received 100% of their damages and legal costs.

Under the new QOCS system, because they suffered a police assault, my clients H.A. and A.A. might have received full protection for their entire claim, but I could not guarantee it. They may only have received costs protection for the police assault. In that situation, if they lost, the court might have ordered my clients to pay the Metropolitan Police’s legal costs relating to the rest of their claims for trespass, breach of Human Rights, and everything else.

Unfortunately, the rules are badly drafted and no court has made a decision which solicitors can rely on to advise their clients. This uncertainty about QOCS puts some people off making a claim.

3. Police take advantage of QOCS confusion

Finally, a consequence of the QOCS changes is that, in my experience, the police are more willing to fight cases to trial. They exploit the confusion and now see claimants as a soft touch.

QOCS Consequences for Civil Liberties

The government introduced LASPO to curb the so-called “compensation culture”. It has been proven that doesn’t exist and, even if it did, should our civil liberties be eroded by discouraging people from claiming compensation?

Parliament needs to recognise the consequences of LASPO and act now to extend QOCS costs protection to all actions against the police, even where personal injury is not claimed, so that people can feel confident when standing up for our rights.

Protecting the Rule of Law from abuse by the police must come first. Otherwise, what’s happening in the USA might happen here.

 

Kevin Donoghue is a solicitor who specialises in civil actions against the police. Contact him on 0151 933 1474 or through the Donoghue Solicitors website.

Image credit: Tony Alter on flickr.

 

 

 

 

 

Is the SARAH Bill an abuse of Parliament’s Powers?

Photo of Kevin Donoghue, solicitor, who considers the SARAH Bill.

Kevin Donoghue, solicitor, considers the SARAH Bill.

By Kevin Donoghue, solicitor

On the eve of Guy Fawkes Night it was fitting that the government showed that it was capable of blowing up respect for Parliament’s legislative powers.

On 4th November, the Social Action, Responsibility and Heroism Bill (also known as the “SARAH Bill”) received its second reading in the House of Lords.

The government wants the SARAH Bill to “make provision as to matters to which a court must have regard in determining a claim in negligence or breach of statutory duty”.

It is remarkably short, at just over 300 words. If you had a homework assignment to draft a bill and came up with it you’d get an incomplete.

During the debate Lord Faulks, the Conservative Minister responsible for promoting the Bill in the House of Lords, explained that the purpose of the Bill is to encourage volunteering and public spirit. If passed, it would give reassurance to people who are sued that the courts will recognise the context in which they acted.

He said the Bill was broadly drafted to apply to a range of situations and “bodies such as small businesses, volunteering organisations, religious groups and social clubs, as well as to individuals.”

Lord Lloyd of Berwick said that the Bill was unnecessary. He questioned if its true purpose was to send a message to the Courts instead of making new law. If so, that is not a proper use of Parliament’s legislative powers and it should not allow the Bill to become an Act of Parliament.

Was he right? Let’s look at the clauses in turn:

1. When this Act applies

This Act applies when a court, in considering a claim that a person was negligent or in breach of statutory duty, is determining the steps that the person was required to take to meet a standard of care.

The Bill deals with the consequences of compensation claims, which usually include personal injuries. They are based in either negligence, breach of statutory duty, or both.

Negligence is proven when a claimant can show that:

  • a defendant owed him/ her a duty;
  • the defendant breached that duty;
  • the claimant suffered loss; and
  • the loss was reasonably foreseeable by the defendant.

Statutory duties, where Parliament enacts laws to extend common law, include strict liability cases.

Before 2013 strict liability laws protected people in accidents at work because defendants could automatically be found liable without claimants having to prove negligence.

But in 2013 Parliament passed the Enterprise and Regulatory Reform Act, removing strict liability from most work accident cases. Now claimants must meet the (harder to prove) negligence standard of care.

As a result of both common and statutory law, the courts are already required to consider the steps taken to meet the required standard of care, so there’s nothing new in Clause 1 of the Bill.

2. Social action

The court must have regard to whether the alleged negligence or breach of statutory duty occurred when the person was acting for the benefit of society or any of its members.

This clause is also already well covered in both statutory and common law.

In 2003 Lord Hoffman said that the courts must consider the “social value of the activity which gives rise to the risk” in the House of Lords judgment of Tomlinson v Congleton Borough Council.

Despite this guidance binding on all courts which deal with compensation claims, in 2006 the government brought in the Compensation Act. This Act merely confirmed the common law approach stated by Lord Hoffman when it said:

Part 1 Standard of care

1 Deterrent effect of potential liability

A court considering a claim in negligence or breach of statutory duty may, in determining whether the defendant should have taken particular steps to meet a standard of care (whether by taking precautions against a risk or otherwise), have regard to whether a requirement to take those steps might—

(a)prevent a desirable activity from being undertaken at all, to a particular extent or in a particular way, or

(b)discourage persons from undertaking functions in connection with a desirable activity.

In the debate Lord Faulks tried to justify Clause 2 of the SARAH Bill. He said that replacing the “may” consider clause in the Compensation Act with the “must” consider clause in the SARAH Bill is a significant change.

It isn’t.

Lord Hoffman’s ruling established the current law. Neither the Compensation Act nor the SARAH Bill adds anything.

Moving on, “acting for the benefit of society or any of its members” is the kind of woolly phrase which only a non-lawyer like Chris Grayling, our current Lord Chancellor, could approve.

Can’t it be argued that we all act for society’s benefit, even if for purely selfish reasons?

Compare factory owners and Cub Scout leaders, both of whom benefit if this Bill becomes an Act.

A factory owner could just as easily take advantage of this phrase when making employees work without proper protective gear. Employers like factory owners keep people in work, pay taxes, support their communities etc. and benefit society that way. Cub Scout leaders help children grow as people. Who is to say which benefits society more?

If left in, defendants (or more accurately, their insurers) will abuse this unnecessary clause.

3 Responsibility

The court must have regard to whether the person, in carrying out the activity in the course of which the alleged negligence or breach of statutory duty occurred, demonstrated a generally responsible approach towards protecting the safety or other interests of others.

Here’s another Grayling phrase: “generally responsible approach”. What’s that? On what legal standard is it based? It’s an entirely new phrase with no legal precedent.

If introduced it will lead to expensive litigation and wasted court time while the courts, claimants, and their lawyers, try to make sense of it.

Right now all volunteering groups, businesses (small or otherwise), clubs etc. must put standards and procedures in place which have developed over years of common law and government made statutes.

To give them a new defence based on made-up language would undermine all that.

4 Heroism

The court must have regard to whether the alleged negligence or breach of statutory duty occurred when the person was acting heroically by intervening in an emergency to assist an individual in danger and without regard to the person’s own safety or other interests.

And there’s more: the court has to consider if “the person was acting heroically”.

What’s that? Not all heroic acts are dramatic.

In 1955 Rosa Parks refused to move to another seat on a bus and helped end racial inequality in America.  Nelson Mandela spent 27 years in jail and contributed to the end of Apartheid.

Both would undoubtedly be considered heroes, but, applying the wording of this clause, were they “acting heroically”? Arguably not; as there was no “emergency” or “danger”.

And this clause is potentially life-threatening for our emergency services, as it requires the court to apply the “heroism” clause only when it decides that someone was acting “without regard to the person’s own safety or other interests”.

It worries the fire service as they think  it will encourage people to go into burning buildings to try to save someone, only to need rescuing themselves.

Guidance from St John Ambulance and others stresses that you should make sure you never put yourself at risk. This clause undermines them all.

Lord Lloyd was right. There is nothing new in this ill-considered and unnecessary Bill.

 “Silly” SARAH Bill

Unsurprisingly, both Houses of Parliament had a field day with the SARAH Bill.

Even Conservatives criticised it, calling it “silly” and “utter tosh”.

So why bother?

As always, it comes down to money.

The Conservatives have been in hock to the insurance companies for years. The Guardian found that they had contributed £4.9 million to the Tories between 2005-2011.

Worse still, Lord Chancellor Chris Grayling received £71,000 from the founder of Direct Line Insurance to run his office when he was a lowly shadow home secretary.

This modest investment in our leaders is a bargain when you consider the breakneck pace of reforms to the legal sector, and in particular compensation claims:

  1. the Legal Aid, Sentencing and Punishment of Offenders Act 2012 greatly affected the rights of innocent accident victims by removing their right to recover fees and expenses from the person responsible. Bar Council Chairman Nicholas Lavender QC claimed in a speech on Saturday 8 November that this Act has denied access to justice for 400,000 people in the last year alone.
  2. the Enterprise and Regulatory Reform Act 2103 removed strict liability from health and safety regulations, making it harder for people to claim compensation after accidents at work; and now
  3. the SARAH Bill 2014, which, Lord Faulks freely admits, is designed to help “small businesses” and others (i.e. their insurers) fight claims. As he said in the House of Lords debate about Clause 3:

“It cannot be fair that such people feel pressured to settle speculative and dubious claims. So as well as giving that reassurance, we hope that this provision will give them greater confidence in resisting such claims and indeed—this is important—will help to deter such claims being brought at all.”

Solution

As I have shown, the SARAH Bill is a pointless waste of Parliament’s time. Rather than help heroes and volunteers, its true purpose is to:

  • help the Conservatives cosy up to their insurance company paymasters;
  • increase insurance company profits; and
  • deny the rights of innocent accident victims.

Unfortunately, Lord Lloyd withdrew his amendment to have the Bill killed at the second reading stage. It will now be considered on 18 November at a House of Lords Committee.

My suggestion: use it as kindling for a bonfire.

Only then will the government and their insurance company backers know that their cynical abuse of Parliament’s legislative powers failed.

 

If you have had an accident at work and want to claim compensation, call me on 0151 933 1474 or get in touch through my firm’s website.

 

 Thursday 13 November 2014 Update:

Labour MP Paul Flynn recently filed an Early Day Motion for a debate to “drop this lamentable headline-seeking example of crude populism.”

And in Parliament on Tuesday, Justice minister Shailesh Vara confirmed that:

The Bill will send a powerful message to the public that if they are acting selflessly in an emergency to help somebody in danger and something goes wrong, the courts will always consider the context of their actions if they are sued in negligence or for breach of statutory duty.” (my emphasis)

Lord Lloyd was right. The government blatantly state that the purpose of the Bill is to send a message, not to legislate. That is an improper use of Parliament’s powers. The government should withdraw this Bill immediately.

 

 

 

 

 

 

 

 

Our part in Halfords’ Christmas Advert

We have a star in our midst!

Our bookkeeper Vicky Kean’s 7-year-old daughter, Gabriella, is starring in Halfords’ Christmas t.v. advertising campaign.

The advert shows Christmas morning in the 70s/ 80s.

Gabriella plays a young girl watching t.v. before being drawn to the window where boys on brand new BMX bikes ride by.

It’s nostalgic and fun. Watch it here:

A nationwide t.v. audience will see Gabriella’s advert during ITV’s “The X Factor” on Saturday 1st November.

Proud mum Vicky says that Gabriella loves acting and that this shoot was especially fun as “she got to eat loads of cake!”

All of us here at Donoghue Solicitors are very proud of her and look forward to encouraging Gabriella’s acting career in the future.

Can Jogger Sue for Breach of the Peace Arrest?

Photo of Kevin Donoghue, a solicitor who helps people sue for breach of the peace arrest.

Kevin Donoghue, a solicitor who helps people sue for breach of the peace arrest.

By Kevin Donoghue, Solicitor.

Yesterday the BBC reported that Dean Farley, 28, accidentally ran into Prime Minister David Cameron while jogging in Leeds.

Tom Heyden of the BBC later interviewed me about the story as I specialise in civil actions against the police, including helping people to sue after unlawful arrests for breach of the peace.

Mr. Cameron’s security team:

  • arrested Dean “to prevent a further breach of the peace”;
  • detained him for an hour; then
  • “de-arrested” him after satisfying themselves that Dean was innocent.

Mr. Farley explained how the police manhandled, handcuffed, and held him in a police van while they checked his story. He said that he was jogging to the gym for a workout with a personal trainer.

As well as suffering physical injuries, Dean explained that he was “quite shook up” by the “harrowing” incident.

As Mr. Farley was held and detained  by the police he might consider asking a solicitor for help to sue for breach of the peace arrest.

But can he?

There are three things to consider:

  1. Was the arresting officer right to charge Dean with a breach of the peace?
  2. Was the arrest and detention lawful?
  3. Can the police justify Dean’s detention for an hour?

The Law in Cases Where People Sue for Breach of the Peace Arrest

The police charged Dean with a breach of the peace. Was that the right offence?

I have previously blogged about if the police know the law in breach of the peace cases as I worry that, all too often, they get it wrong.

To rely on a charge of breach of the peace, the arresting officer must have had:

  • reasonable grounds to believe that Dean had done (or threatened to do) an act which;
  • either actually harms a person or his/ her property; or
  • is likely to cause such harm.

The BBC report says that Dean Farley did not make contact with David Cameron. Even so, in that moment, it is understandable that an officer would think that there was a threat of harm to the Prime Minister or one of his protection team.

So the charge of breach of the peace appears correct.

False Imprisonment

To claim for false imprisonment, Dean Farley would need to show that the police detained him without lawful authority.

The legal definition, from Clerk and Lindsell on Torts, describes detention as:

“Complete deprivation of liberty for any time, however short, without lawful cause”.

Dean says the police arrested and detained him for an hour.

The burden of proof then shifts to the police.

To prevent Mr. Farley being able to sue for breach of the peace arrest the police must show that they had lawful grounds for the arrest.

Grounds for Arrest

Sections 24 and 28 of the Police and Criminal Evidence Act (1984) (amended by the Serious Organised Crime and Police Act (2005)) describe the following conditions for a lawful arrest:

  1. the arresting officer honestly suspected the arrested person was involved in the commission of a criminal offence;
  2. the arresting officer held that suspicion on reasonable grounds;
  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;
  4. the officer informed the arrested person of the fact & grounds of arrest as soon as reasonably practicable; 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.

Applying these tests to Dean Farley’s case, the arresting officer would say that he had an honest suspicion that Dean had harmed, or threatened to harm, David Cameron or a member of his protection team, so committing a breach of the peace.

Watching the video footage Dean’s conduct could certainly be viewed as potentially threatening, although we now know that he had no such intent to harm. So objectively, we can agree that the officer’s suspicion was reasonable.

The arresting officer would also say that he had to arrest Dean to investigate the alleged offence.

Again, viewing the footage, it seems reasonable to take the police’s side.

The arresting officer promptly told Dean that he had been arrested “to prevent a further breach of the peace” so the fourth condition was satisfied.

Finally, there does not seem to be a public law reason to challenge the arrest.

Justified Detention for Breach of the Peace

It appears that the initial arrest was lawful so, on that basis, Dean cannot sue for breach of the peace arrest.

But  the police have to defend the continuing detention on a “minute by minute” basis. As the then Master of the Rolls, Lord Donaldson, said in the judgment of Mercer v Chief Constable of Lancashire (1991):

“what may originally have been a lawful detention may become unlawful because of its duration or of a failure to comply with the complex provisions of the Police and Criminal Evidence Act 1984.”

So Dean could still sue for a breach of the peace arrest if he can show that the police held him longer than necessary.

He told the BBC that the police kept him for an hour while they checked his story. Mr. Farley was then released without charge.

It is unlikely that a court would criticise the police for holding Dean for this time. It seems reasonable to conduct the enquiries he described such as checking his story with his boss, the gym etc. given the high-profile nature of the incident.

There may be other evidence which comes to light later, but on the information from the BBC report and video alone, it seems that Dean’s arrest and detention for breach of the peace were justified.

Unlike some of my other clients, I would not advise him to sue for breach of the peace arrest.

 

If you want help to sue for breach of the peace arrest contact me on 0151 933 1474 or complete the online form on my firm’s website.