Can Extinction Rebellion Protesters Claim Compensation?

This week the High Court found that London’s Metropolitan Police acted unlawfully when dealing with the October 2019 Extinction Rebellion protests.

Does this mean that arrested Extinction Rebellion protesters can claim compensation?

Read what Kevin Donoghue, a solicitor who specialises in civil actions against the police, thinks here.

 

Solicitor Kevin Donoghue considers if Extinction Rebellion protesters can claim compensation.
Kevin Donoghue, solicitor, considers if Extinction Rebellion protesters can claim compensation following a recent court ruling.

By Kevin Donoghue, solicitor

On 6 November 2019 the High Court issued a damning judgment in the case of The Queen on the application of Baroness Jenny Jones and others v The Commissioner of Police for the Metropolis. (Read it here.)

The Court found that London’s Metropolitan Police acted unlawfully when the officer in charge imposed a ban on Extinction Rebellion’s protest in October 2019. Lord Justice Dingemans and Mr Justice Chamberlain said:

We have held that the decision to impose the condition was unlawful because Superintendent McMillan had no power to impose it under section 14(1) of the 1986 Act.

As a result, the Court ordered that:

Superintendent McMillan’s decision to impose the condition on 14 October 2019 will be quashed.

This decision opens the door to protesters bringing civil actions against the police for false imprisonment (and other things) if they were detained by the police during the protest ban period (14-18 October).

What is Extinction Rebellion?

In 2018, activists started Extinction Rebellion (or “XR” for short), an international non-violent civil disobedience movement. XR is pushing governments to declare a climate and ecological emergency. Concerned with the climate crisis and carbon emissions, organisers say they have groups taking action in dozens of countries.

What Happened in London in October?

Extinction Rebellion organised the “Extinction Rebellion Autumn Uprising” (“XRAU”) to take place in London between Monday 7- Saturday 19 October 2019.

The protests were to take place in multiple sites across London. Organisers hoped that they would inconvenience the public to force politicians to engage with XR and its aims.

Superintendent McMillan, Bronze Commander for Contingencies at the Metropolitan Police, deemed XRAU “an assembly” that “may result in serious disruption to the life of the community” for the purposes of s.14(1) of the Public Order Act 1986.

Accordingly, at 7pm on 14 October, he imposed a “condition” stating:

“Any assembly linked to the Extinction Rebellion “Autumn Uprising” (publicised as being from 7th October to 19th October at 1800 hours) must now cease their protest(s) within London (MPS & City of London Police Areas) by 2100 hours 14th October 2019.”

During this period XR protesters were arrested in purported breach of the condition, including two of the Claimants in the court case.

The police removed the condition at 5:30pm on Friday 18 October.

Why Did the Court Find Against the Metropolitan Police?

The Justices found that Superintendent McMillan erred in law by imposing a condition under s.14(1) of the Public Order Act 1986 when he had no right to do so. The Act states:

14 Imposing conditions on public assemblies.

(1)If the senior police officer, having regard to the time or place at which and the circumstances in which any public assembly is being held or is intended to be held, reasonably believes that—

(a)it may result in serious public disorder, serious damage to property or serious disruption to the life of the community, or

(b)the purpose of the persons organising it is the intimidation of others with a view to compelling them not to do an act they have a right to do, or to do an act they have a right not to do,

he may give directions imposing on the persons organising or taking part in the assembly such conditions as to the place at which the assembly may be (or continue to be) held, its maximum duration, or the maximum number of persons who may constitute it, as appear to him necessary to prevent such disorder, damage, disruption or intimidation.

 

The Court found that XRAU, which consisted of many separate gatherings, was not a single “public assembly” within the meaning of the Act. It said:

“a public assembly” must be in a particular location to which the public or any section of the public has access, which is wholly or partly open to the air, and which location can be fairly described as a “scene”.

The Judges also found that Superintendent McMillan, the Bronze Commander, was not the most senior officer at the “scene”. This is because the police said in the condition that it applied to the whole of the London.

The Court summarised the position as:

In our judgment a public assembly in section 14 must be in a location to which the public or any section of the public has access, which is wholly or partly open to the air, and which can be fairly described as a scene. Separate gatherings, separated both in time and by many miles, even if co-ordinated under the umbrella of one body, are not one public assembly within the meaning of section 14(1) of the 1986 Act. This means that Superintendent McMillan purported to impose a condition not only on those public assemblies already in existence but also on intended future assemblies yet to be held. The XRAU intended to be held from 14 to 19 October 2019 was not a public assembly in the presence of Superintendent McMillan on 14 October 2019. Therefore the decision to impose the condition was unlawful because there was no power to impose it under section 14(1) of the 1986 Act.

As a result, the Justices found against the Metropolitan Police.

False Imprisonment Claims for Extinction Rebellion Protesters

The Court in the Extinction Rebellion London protest case was careful not to get drawn into the wider implications of the police’s unlawful actions. In particular, it said:

We should make it clear that we are not concerned in this case with the lawfulness of the arrests of any individuals or the merits of the prosecution or proposed prosecutions of any individuals.

This means that, despite this ruling, protesters will have to prove their claims for false imprisonment in full.

To do that they will have to meet the strict legal criteria which you can read about on our False Imprisonment Claims Explained page.

Claimants will have to prove that

  1. they were detained, and
  2. that there was no lawful authority to justify detention.

While the first part is usually straightforward and shifts the burden of proof onto the police to justify detention, the second may not be so clear.

Some protesters may have been arrested for other reasons. One of the XR protesters was arrested for both breach of the condition (now known to be unlawful) AND obstruction of a highway. The police may seek to rely on the obstruction charge alone to justify arrest.

Even without that complication, the court in a civil action against the police will consider the following issues:

  • Proving that the arresting officer had lawful authority, applying subjective and objective tests of reasonable suspicion
  • That the officer believed that the arrest was necessary, and that belief was reasonable,
  • That the arresting officer informed the subject of the fact and grounds for arrest as soon as practicable, and that
  • The arrest was lawful on public law (Wednesbury reasonableness) grounds.
  • Even after arrest, the continued detention can become unlawful. The burden is on the police to justify detention on a minute-by-minute basis.

And if an Extinction Rebellion protester proves false imprisonment, remedies vary in civil actions against the police depending on detention time, treatment, physical and psychological effects, and many other factors. You can read more about remedies in claims against the police here.

Bringing False Imprisonment Claims

So can Extinction Rebellion protesters claim compensation for false imprisonment? Some inexperienced commentators and lawyers may respond with an unequivocal “yes”. The smart answer should be “it depends”.

I recommend that those involved take legal advice from a specialist in civil actions against the police.

Legal Standing

A crucial factor for this case was “standing”. This is the legal right to be involved in court proceedings.

In the Extinction Rebellion London protest case seven claimants sought legal standing. But the Court found that only three of them had it. This is because they were arrested (in part for breach of the condition imposed by the Metropolitan Police which led to the litigation). The Court was keen to warn about the consequences of seeking standing where it may not exist, saying:

It might be noted that this does not make any practical difference to the outcome or relief that the Court will grant in this case. However it is important to remind parties of the need to ensure that those who bring claims for judicial review are limited to those best placed to bring the claim. This is because adding unnecessary Claimants is likely to increase the costs of the litigation, if only by requiring solicitors to send out extra reports on the litigation. It is also because parties to an action are in a distinct position, for example by receiving a confidential draft of the judgment at a time when it is circulated to the parties for typographical and other corrections before it is handed down in Court.

Dealing With Future Protests

The Extinction Rebellion judgment is interesting for its consideration of the October XRAU protest. The judges were careful in their comments and what issues they considered.

Notably the Court avoided making certain rulings and commented on things which might affect how the Metropolitan Police handle protests in future. For example,

It should be noted that in section 14 there is an express power to impose conditions on intended public assemblies, but this is a power which, in London, may be exercised only by the Commissioner or, if delegated under section 15, the Assistant Commissioner, so it is not relevant to this case. It might be noted that there is a power to set a condition as to the “maximum duration” of the public assembly, but it was common ground that the maximum duration could not be zero.

There is also an unanswered question in the judgment about the wording of police orders under the Public Order Act. The Court side-stepped the question about how the police should phrase them, saying:

The Claimants criticise the condition imposed in this case as uncertain in two respects: first, the words ‘[a]ny assembly linked to [XRAU]’ is too vague to enable anyone to know whether their planned demonstration will be caught; and secondly, the phrase ‘must now cease their protest’ makes it unclear what protestors have to do to avoid falling foul of the condition.

In the light of our conclusion on the first ground it is not necessary for us to determine this point, and we do not do so. This is because the condition was framed in the way it was because Superintendent McMillan wrongly believed that XRAU was “an assembly being held” on which he had power under section 14(1) to impose conditions. If he had correctly understood that a ‘public assembly’ referred to a single gathering of people in a particular place, the condition would have been framed differently and there is no reason to suppose it would have included the elements criticised by the Claimants.

These comments matter because, even though the Justices did not address the issues directly, they help the police understand how the courts interpret the law. Future s.14 Public Order Act conditions are more likely to be legally compliant if they take the hints.

Extensive Police Powers

No doubt the Metropolitan Police will reflect carefully on this judgment. They have been publicly shamed and will want to avoid a repeat. The Court noted that:

It was common ground that there are powers contained in the 1986 Act which might be lawfully used to control future protests deliberately designed to “take police resources to breaking point”, to use the words set out in the October Rebellion Action Design. However the extent and conditions for use of those powers are not issues before us in this claim and we say no more about them.

Perhaps the Court meant this as a word of warning to protesters about the extent of police powers. As I have previously written, the police are becoming increasingly militarised and aggressive, even resorting to unlawful methods, as some Extinction Rebellion protesters found.

Contact Kevin Donoghue for advice on suing the police by completing our online contact form or calling 08000 124 246.

 

 

Will an ITV Documentary Help End Sexual Abuse by Police Officers?

Photo of Kevin Donoghue, a solicitor who specialises in sexual abuse by police claims.
Solicitor Kevin Donoghue previews an ITV documentary about sexual abuse by police officers.

By Kevin Donoghue, solicitor

ITV is showing a documentary at 10:45pm tonight (Tuesday 15 October) about sexual abuse by police officers. I urge you to watch “Exposure: Predator Police Uncovered”.

The documentary will shine a light on the widespread issue of sexual abuse by police officers of female victims of crime. The programme-makers report that:

  1. a police or community support officer is convicted or dismissed for sexual misconduct every five days in England and Wales.
  2. between April- October 2018, police officers were seven times more likely than doctors or teachers to be dismissed for sexual misconduct.

This is despite officers being bound by strict rules about police abuse of position for a sexual purpose, which is defined as:

“Any behaviour by a police officer or police staff member, whether on or off duty, that takes advantage of their position as a member of the police service to misuse their position, authority or powers in order to pursue a sexual or improper emotional relationship with any member of the public. This includes: committing a sexual act, initiating sexual contact with, or responding to any perceived sexually motivated behaviour from another person; entering into any communication that could be perceived as sexually motivated or lewd; or for any other sexual purpose.”

Vetting Failure Enables Sexual Abuse by Police

The definition above targets police officers and staff members. But they are not the only ones to look at.

Police forces are failing the public at an institutional level. Many do not properly vet police and support staff. This means that sexual predators are recruited and employed by the same institutions tasked with defending the public against these criminals.

Zoe Billingham, of HM Inspectorate of Constabulary and Fire and Rescue Services, explains in the video clip below that

“Vetting is the first line of defence in protecting the public from police predators.”

She described the scale of the problem by saying:

“Too many forces, over half, are not vetting staff as frequently as they ought to.”

This means that

“about 35,000 people who ought to have current and up-to-date vetting, either working in policing or alongside policing, didn’t have that vetting in place.”

Notably, this vetting failure led to Cheshire Police employing (former PC) Ian Naude. He was convicted of raping a 13-year-old girl and jailed for 25 years.

Common Themes

I have helped many victims of police abuse of authority for sexual gain in my work. Sadly, there are common themes. Police sexual predators:

  1. choose their victims carefully. Vulnerable people, such as victims of domestic abuse and young people, make for easy targets. The documentary-makers found that about ¾ of victims on their research would be considered vulnerable.
  2. use the considerable resources of their organisations to pursue their victims. This includes access to police national computer databases, use of police vehicles, home visits in uniform etc.
  3. apply grooming techniques, such as manipulation, coercion, threats etc. to persuade victims to agree to sexual contact and/ or cover it up.

The consequences of sexual abuse by police officers are often devastating. As I explained here, victims can suffer long-term psychological damage as a result.

Police Culture

This criminal misconduct is made worse by police officers failing to listen to victims and adopting a siege mentality. Often, they will go to great lengths to avoid seeing what is right in front of their eyes. The police will defend, deny, and deflect rather than deal with a sexual predator in their ranks. In the two years to March 2016 fewer than half of (48%) of all the police abuse of authority for sexual gain cases it identified were reported to the Independent Police Complaints Commission (now Independent Office for Police Conduct) for an independent investigation.

Convictions, publicity, and official reports from HMIC show that police officers at all levels have been aware of the issue of police sexual predators for years. And yet the problem continues. I hope tonight’s documentary will change that and spur action.

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

 

 

 

Why Police Corruption Goes Unpunished

Photo of Solicitor Kevin Donoghue who explains why police corruption goes unpunished.
Kevin Donoghue, solicitor and specialist in civil actions against the police, explains why police corruption goes unpunished in this blog post.

By Kevin Donoghue, solicitor

Today I had to do something I did not want to do. I told a potential client that I could not help him bring a seemingly good claim on the merits.

This is why.

What Crown Prosecutors Say Happened

In 2008 Richard Diaper was just 17 years old when he was brutally assaulted with a baseball bat at a garage in Tonypandy, Rhondda, South Wales. His attackers repeatedly struck Richard to the head while he was getting cash.

Richard suffered nasty injuries and reported the attack to South Wales Police. Detective Constable Marc Hopkins investigated it. The police arrested five men on suspicion of serious assault. It appeared they mistook Richard for someone else.

Richard gave a statement to the police and co-operated fully. Then he started getting threatening phone calls telling him to withdraw his statement. He told DC Hopkins, but the officer played down the calls, failed to formally record Mr Diaper’s report about them, or follow up by investigating phone records. He also ignored orders to seize the accused mens’ phones and the clothing they used during the assault.

Richard also got a phone call from someone claiming to be from the Manchester drugs underworld offering him £3,000 to drop his statement. He reported this to the police too.

Most unusually, DC Hopkins went to Richard’s home while off-duty. He advised the 17-year-old to take the money and withdraw his statement.

Richard felt intimidated by the senior police officer. Mr Diaper felt like he had no choice and did as he was told. DC Hopkins countersigned a form to end the investigation. The case against the five men collapsed.

Six years later the police contacted Mr Diaper about DC Hopkins’ handling of the investigation. Professional Standards Department investigators said that it was alleged DC Hopkins took a bribe to get Richard to withdraw his statement. Richard was shocked and upset. Richard, his mother, and a friend all co-operated with the investigation and prosecution.

DC Hopkins denied the allegations and the case went to Cardiff Crown Court for a jury trial.

Crown Court Trial

DC Hopkins claimed that the allegations against him were false. He said that his (now ex-) wife, Tina Burton, reported him to the police “out of pure malice” after their marriage ended badly.

Ms Burton gave evidence that the owner of the garage where Richard was assaulted was a friend of DC Phil Simmons, one of DC Hopkins’ colleagues.

She said this officer told DC Hopkins that there would be a substantial amount of money for them if Richard withdrew his statement. Ms Burton reported that DC Hopkins later came home with a “wad of cash”. (The jury was told DC Hopkins was paid £5,000.)

 After a trial the jury found the South Wales Police officer guilty of perverting the court of justice. Recorder Eleri Rees sentenced Hopkins to four years in prison. He said,

“You had an unblemished record as a police officer. And that makes it all the more astonishing you were corrupted in this way. Your actions were cynical and motivated by greed and you have shown little remorse.”

And the Assistant Chief Constable of South Wales Police described DC Hopkins’ conduct as

“an appalling example of police corruption”.

DC Hopkins was dismissed from South Wales Police. Deputy Chief Constable Richard Lewis found that he had breached the Standards of Professional Behaviour and said

“This matter has undoubtedly brought the police service and specifically South Wales Police into disrepute with our communities.”

Legal Assessment of this Police Corruption Case

I’m not exaggerating when I say that civil actions against the police are among the hardest legal cases to win. The deck is stacked against innocent victims of police corruption. They have to fight an arm of the State, the most well-funded and motivated defendant there is. Cases can take years. There are no guarantees of success.

Despite this, I have a proven record against the police, especially South Wales Police. Richard contacted me because I have nearly two decades’ experience in this niche area of law. He wanted an honest, realistic appraisal of his case.

To the inexperienced, his case appears straightforward. A criminal conviction for perverting the course of justice is compelling evidence of wrongdoing.

Not so fast.

When I looked at Richard’s case I noted the positives, such as the officer’s criminal conviction, but also the negatives.

These included the effects of the limitation period, which prevents claimants from issuing proceedings out-of-time. In Mr Diaper’s case my assessment went like this:

I considered his potential losses and causes of action. It appeared that Richard could sue the Chief Constable of South Wales Police for the acts or omissions of his officer, DC Hopkins. Richard could potentially bring a civil action against the Chief Constable for the tort of misfeasance in public office.

I then moved on to deal with the issue of delay.

The incident giving rise to a potential claim happened in 2008, when Richard was just 17. Because he was not yet an adult at that time, the courts would allow six years from Mr Diaper’s 18th birthday for the limitation “clock” to expire.

So it appeared Mr Diaper, who turned 24 in 2015, contacted me four years too late. But some civil claims against the police benefit from time-limit flexibility under the Limitation Acts. Could Richard use them to apply for relief?

Sadly, in my opinion, no. Unlike say, the three-year personal injury time limit, the six-year time limit which applies to misfeasance in public office claims cannot be extended.

So a claim against South Wales Police was bound to fail due to the delay.

But what about compensation from the Criminal Injuries Compensation Authority?

Richard would not succeed there either, even though he was seriously injured. This is because

1. he failed to support the prosecution, and

2. is considerably out of time. (There is a two-year time limit on CICA claims.)

Lesson

Richard kindly agreed to me bringing attention to his situation in the hope that it will help others.

He is understandably disappointed. I am too. I work hard to help victims of police corruption get the justice they deserve. The delay means that a South Wales Police officer’s misconduct will go unpunished.

Don’t delay if you want to bring a civil action against the police. Contact me on 08000 124 246 or complete the short online form here.

 

 

5 Things Every Newly-Qualified Chartered Legal Executive Should Know

Photo of Daniel Fitzsimmons, Chartered Legal Executive at Donoghue Solicitors
Daniel Fitzsimmons is an experienced Chartered Legal Executive. Here he gives some insight to his newly qualified colleagues.

By Daniel Fitzsimmons, Chartered Legal Executive

This week my colleague Kemmi Alfa qualified as a Chartered Legal Executive. She is now a Fellow of the Chartered Institute of Legal Executives. This gives her considerable rights and responsibilities, which you can read about here.

I have seen the impact of qualification on my own career. I am a long-time practising lawyer and Chartered Legal Executive too. Clients, other lawyers, and colleagues respect the title. I expected that, as would most newly-qualified lawyers. But here are five things you might not know about practising law as a Chartered Legal Executive:

1 The work doesn’t stop when you qualify

I am a civil litigator and specialise in the niche area of actions against the police. My work involves many overlapping areas, including tort, human rights, European law etc. It is ever-changing. I spend a lot of time keeping up-to-date with the law, discussing it with colleagues, and sharing our collective knowledge. You never stop learning in this job. Lawyers must have an unquenchable thirst for the law to represent clients effectively. I spend a lot of time outside work hours reading and thinking about what I have learned or experienced in the office. This helps me progress cases, even when I am not at work. Some of my best “a-ha” moments come to me while training for half-marathons. In this uninterrupted time I digest new information and apply it to my cases.

2 Get used to public attacks

In Shakespeare’s Henry VI, Dick the Butcher said:

The first thing we do, let’s kill all the lawyers.

Successive governments have attacked lawyers, especially those working in civil law. Politicians talk of the non-existent “compensation culture” to sway public opinion. I have never seen a lawyer chase an ambulance, but that’s what we’re falsely accused of doing.

Lawmakers use “ambulance chasers”, “fat cats”, and other epithets to convince the public that we are the bad guys. Other qualified professionals don’t deal with these childish attacks. So, why are we singled out? It’s because demeaning lawyers gives politicians cover in the media. This allows them to cut legal aid, erode civil liberties, and introduce drastic changes to the civil compensation system. Politicians’ wealthy donors and insurers have profited by their actions. The public has not.

Shakespeare wrote his famous line in 1591. More than 400 years’ later we’re still here. Why? Because we’re needed. Brush off the brickbats. Instead:

3 Embrace your role as protector

Like every job, there are good days and bad days. But the law isn’t any job. It is a calling. A vocation. The CILEx oath says:

I promise to discharge diligently my duties and responsibilities as a Chartered Legal Executive. I will protect my independence as a lawyer, uphold the Rule of Law, and act at all times with integrity. I will justify the confidence and trust that is placed in me by my clients, the courts, the public and by my profession.

There’s a lot to unpack here. A key aspect is how Chartered Legal Executives protect and uphold “the Rule of Law”.

The Rule of Law is an ancient principle, attributed to Aristotle. It is defined by the Oxford English Dictionary as

“The authority and influence of law in society, especially when viewed as a constraint on individual and institutional behaviour; (hence) the principle whereby all members of a society (including those in government) are considered equally subject to publicly disclosed legal codes and processes.”

In effect, the Rule means that no one is above the law. This includes representatives of the State such as lawmakers, the judiciary, and police.

To me, and many legal executives, upholding the Rule of Law means protecting citizen’s rights. In my work, this duty can involve:

  • helping clients claim compensation. This application of tort law involves putting them in the pre-civil wrong position, so far as possible.
  • public vindication. This may include getting a judgment in open court with a finding of civil liability.
  • seeking a declaration of breach of human rights.

As mentioned in 2. above, politicians will not protect us when they have competing interests. (Ironically, many are lawyers, who have also sworn to protect the Rule of Law. I know the Rule means different things to different people, but the mental contortions involved for some of them must be exhausting.)

And often, in the experience of many of my clients, the police will not protect them. Police are an arm of the State, and subject to the same Rule of Law as the rest of us.

But they are different to you and me in one crucial way. Police officers are aggressively protected by their own union, the Police Federation. The Federation runs PR campaigns to get new “kit”, such as potentially deadly spit hoods, to #protecttheprotectors. When dealing with police complaints, the union pressures Professional Standards Departments and the Independent Office of Police Conduct. It lobbies government to change the law to benefit police officers.

The public has no such protectors other than lawyers.

This imbalance means that, as many of my firm’s clients know, some in the police abuse their rights with impunity. For example, my client Paul Rogers was wrongfully arrested by Merseyside Police. The police searched his home and unlawfully detained Mr Rogers despite credible information that they had arrested the wrong person. Officers took Paul’s biometric data, photo, and fingerprints for their records. They only released Mr Rogers when they realised their mistake, nearly 12 ½ hours later.

Despite this, the police offered no apology or compensation for Paul’s harrowing ordeal. He instructed Donoghue Solicitors to sue Merseyside Police. We acted on a “no win no fee” basis. With my help Paul got £5,000 compensation and his biometric and other data destroyed.

Paul protected his rights with his lawyer’s help. Together, we also showed Merseyside Police that this misconduct would not go unpunished.

4 Choose your clients carefully

No one can say precisely how long a case will take at the outset. Lawyers guesstimate based on their experience. But that’s all. We don’t know

  • how co-operative and engaged our own clients will be
  • how opponents will react
  • how the case will play out
  • what court time is available
  • etc.

Legal cases, like people, come in all shapes and sizes. This means that when you take on a new case, you should be prepared for the long haul. Legal executives are people like everyone else. We work best with clients we know, like, and trust. That makes the matter of taking on a new client a personal as well as professional one.

For example, I recently settled a long-running case for my clients Steve and Sharon Rogers (names given with their kind permission). We got on well from the beginning. They were perfect clients:

  • polite
  • co-operative
  • attentive
  • respectful of my time and other client responsibilities
  • flexible, and above all,
  • genuine and trustworthy.

I believed in them and their case. I was prepared to run their case to trial, risking thousands of my firm’s costs because we acted on a no win no fee basis. But it didn’t come to that and we settled out of court. Still, their case took years, and we spent many hours working on it. Without our relationship, a case which was a pleasure to work on would have been a hard slog. The feeling was mutual. This is what they said on Facebook:

Steve Rogers recommends Donoghue Solicitors.

16 July at 13:27 ·

We can’t thank Daniel Fitzsimmons enough. Thank you for being by our sides and sticking with our case for over 4 and a half years. You’ve been there for us whenever we have needed you. Words cannot explain how happy we are with the result. A 5* solicitors from beginning to end. We are eternally grateful. Steve and Sharon Rogers

5 The work is the reward

My comments above may make the choice to make a career as a Chartered Legal Executive a strange one. There will be long nights, stress, and critical public attacks in the media. But there is also a deep sense of satisfaction which can come only from practising law.

For example, this week I settled a case for a client who had been falsely imprisoned by the police. They had executed an IP address search looking for a child pornographer. The police wrongly identified my client and arrested him at work. They accused him of extremely serious and damaging criminal offences. Officers raided his home, terrifying his partner. The police detained my client in a cell for over four hours before admitting their error. He suffered anxiety and an adjustment disorder, as well as damage to his reputation.

With my help my client sued the police. Together we got him

  • a full apology
  • a promise to learn lessons from the bungled mission
  • £10,500 compensation.

In short: justice– a reward for my client, me, and the wider public.

Kemmi Alfa is a Chartered Legal Executive at Donoghue Solicitors
Kemmi Alfa is a Chartered Legal Executive at Donoghue Solicitors.

Learning to be a Chartered Legal Executive

I am sure that my colleague Kemmi Alfa will make an excellent Chartered Legal Executive. We are all very proud of her. But, as I hope I have made clear, qualifying is just the beginning. In legal practice, the learning never ends.

Daniel Fitzsimmons is a Chartered Legal Executive at Donoghue Solicitors. Contact him here.

 

Do the Police Have Double Standards?

Photo of Daniel Fitzsimmons, a Chartered Legal Executive, who asks if the police have double standards.
Daniel Fitzsimmons, Chartered Legal Executive, asks if the police have double standards here.

By Daniel Fitzsimmons, Chartered Legal Executive

Knife crime is a serious problem. The police are right to highlight this and seek harsh punishment for offenders. But what about when it involves one of their own?  Then, as two of my clients have found, things aren’t quite so straightforward. Read on and ask yourself if the police’s conduct reveals double standards.

Domestic Dispute

I represent “John” and “Sarah” (names changed as their case is ongoing), a married couple. One night they got into a petty argument. Voices were raised. Their daughter got scared and called the police.

Officers came to the family’s home and demanded that John let them in. He refused, believing that the police had no right of access.

But the police insisted. (I understand that the officers claim they were relying on s.17 Police and Criminal Evidence Act. They argue that they were “saving life or limb or preventing serious damage to property”. But, in my opinion, this legal basis doesn’t fit the facts, so making what happened next unlawful.)

The police forced their way into the house, wrestling John to the ground. He continued to protest and resist, sure that he had done nothing wrong and that the police had no right to be in his home. After a struggle officers arrested and handcuffed John, injuring him in the process. They took him to a police car and drove John to the police station. John was “booked in” and, to his amazement, told he was being held for assaulting a police officer in the execution of his duty. In interview John insisted that he had done no such thing. The police charged and bailed him. John pleaded not guilty. His case went all the way to trial, where he was acquitted.

Police Complaint

John knew that the police’s case was unfounded, and that the prosecution was wrong. He was sure he had the right to defend himself. John felt mistreated and contacted me because my firm specialises in helping people with civil actions against the police.

John told me his story. I listened as he explained that not only had the police forced their way into his home, but that they had injured him during arrest. He described deep, sharp, cuts to his arms which needed medical treatment. He saw his GP the day after the arrest and told the doctor what had happened. John’s GP didn’t think the cuts were from handcuffs: he thought they were from a bladed object.

A couple of days after the incident the family came across a multi-tool, or “Swiss army”, knife in their home.

It wasn’t theirs.

It had a name engraved on the back.

It was one of the police officers.

Police Professional Standards Department Involvement

I agreed to help John and Sarah bring a formal complaint against the police. John gave me the multi-tool for safe-keeping.

Recently, I spoke with an investigator at the police force’s Professional Standards Department. This police officer’s job is to impartially investigate the complaint. At the end of the investigation he should prepare a report showing his findings and recommendations. Police officers may be cleared of any wrongdoing at the end of this process. If not, and depending on the circumstances, proposals for how to deal with any adverse findings can include

  • “management action”, a form of advice and guidance which is designed to deal with misconduct in a timely, proportionate, and effective way.
  • formal misconduct proceedings and, in rare cases,
  • criminal charges.

Professional Standards investigators have a crucial role in maintaining public confidence. They “police the police”.

Sadly, I do not have confidence in the way this investigator is handling John and Sarah’s complaint because:

  1. He has sought to deal with their complaint by way of “local resolution”.
  2. He knew about the multi-tool knife and tried to get it back.

1. Local resolution

Local resolution is the least formal process for dealing with police complaints. It is unsuitable given the facts because it cannot result in misconduct or criminal proceedings.

John and Sarah’s case is unusual in that it is not a “he said, she said” case, where police officers normally have the advantage. The facts have already been tested in a criminal court. John was cleared of the serious charge of assaulting a police officer after reviewing sworn evidence from both sides.

But questions remain about whether the police acted improperly by

  • forcing their way into his home,
  • arresting,
  • assaulting,
  • detaining,
  • charging, and
  • helping prosecute him.

These issues alone merit a more formal investigation.

2. “Swiss army” (multi-tool) knife

The investigator was aware that an officer’s Swiss army (multi-tool) knife had been left at the family’s home. He also knew from the police complaint that John alleged he had been cut during the arrest. The multi-tool device left at John and Sarah’s home is a “Gerber Dime”. This is it:

Photo of Gerber Dime multi-tool knife found at client home.
This is the multi-tool found at our client’s home following a police visit.

Gerber sell similar tools for £29.99 plus shipping in the UK, with personalised engraving available for £3.99.

As you can see from this youtube video, it’s a versatile tool which has two blades; a regular “fine edge” blade and a retail package opener:

Now look at these photographs of John’s arms.

Photo of forearm injuries caused by police during arrest.
Photo of our client’s forearm (used with his kind permission). Note where the cuts appear.
Photo of cuts to arm following arrest.
Deep, straight line cut to our client’s wrist.

Was his GP right in thinking that the cuts were caused by a bladed object? Did one of the multi-tool’s knife blades cause John’s wounds?

Given that

  1. John suffered multiple cuts consistent with knife wounds,
  2. these included a cut high up his forearm (shown in the first photograph), and
  3. the officer’s multi-tool was found at the couple’s home

what other rational explanation is there for how John was injured?

If the police officer used the knife blade to assault John during the arrest, he could be facing serious misconduct and criminal charges.

Even if that is not proven, is it right that a police officer should take a multi-tool to a domestic house call? They are not standard kit for police officers. Why would the officer think it was appropriate to “go equipped” on the job?

I told the PSD investigator about my concerns and that this matter is not suitable for local resolution.

Photo of Gerber Dime multi-tool
Are police double standards exposed if an officer uses a multi-tool knife like this during an arrest?

Double Standards Exposed?

He then raised another troubling issue.

The investigator asked if my client would return the multi-tool knife as the officer wanted it. I couldn’t believe what I was hearing. The investigator knew that the multi-tool knife had been left at (what a court may later decide) was a crime scene. But, instead of

  • stressing the serious nature of the matter, and
  • advising that it was a crucial piece of evidence which the department would keep,

the investigator simply said that the officer wanted it back.

Does this reveal double standards in how the force deals with police complaints? Look at it this way: if it was alleged that my client had used a multi-tool knife on an officer he would not get it back before the conclusion of criminal proceedings. And the charges he faced would be more serious than those John fought at court, in which the prosecution claimed he assaulted a police officer in the execution of his duty. That alone is “aggravated” assault and can result in six month’s jail time and a hefty fine. Using a knife would have led to more serious charges and made a possible conviction far worse.

Is it right that the police’s investigator tried to recover this crucial piece of evidence and return it to his colleague?

Protecting Evidence

I told the investigator that I had the knife and would keep hold of it. In doing so, I am fulfilling my legal duty to preserve evidence. I am worried that this crucial piece of evidence might mysteriously disappear if I returned it now.

And, given what I now know, I am not confident this complaint against the police will be fairly investigated. As I see it, the police’s double standards have been exposed. My clients know my views and are prepared to bring civil court proceedings if justified and necessary. We await the outcome of the Professional Standards Department’s investigation with interest.

Daniel Fitzsimmons is a Chartered Legal Executive who specialises in civil actions against the police. Contact him here.

Donoghue Solicitors Shortlisted in Liverpool Law Society Legal Awards

Photo of Kevin Donoghue, solicitor director of Donoghue Solicitors.
Kevin Donoghue, solicitor director of Donoghue Solicitors. His firm has been shortlisted in the 2019 Liverpool Law Society Legal Awards.

By Kevin Donoghue, solicitor director of Donoghue Solicitors

We did it again! Donoghue Solicitors has been shortlisted in the Liverpool Law Society Legal Awards for the third time in a row.

This accolade comes hot-on-the-heels of our shortlisting for Boutique Law Firm of the Year in the 2019 Modern Law Awards.

Read on to find out why we’re shortlisted and what this means to us and our clients.

Liverpool Law Society Legal Awards 2019 logo.
Donoghue Solicitors has been shortlisted for the Small Law Firm Award in the 2019 Liverpool Law Society Legal Awards.

Why Liverpool Law Society Legal Awards are Trusted

The bi-annual Liverpool Law Society Legal Awards are described as “celebrating legal excellence”.

An independent panel judges the Awards. Panel members come from the worlds of business, academia and the judiciary. Glenys Hunt, a non-practising past president of Liverpool Law Society, chaired this year’s panel. Members included:

  • Professor Warren Barr Head of Department at Liverpool Law School, University of Liverpool,
  • Ms Lesley Martin-Wright, Chief Executive of Knowsley Chamber of Commerce
  • His Honour Judge Graham Wood QC, the Designated Civil Judge for Cheshire and Merseyside.

Liverpool Law Society jealously protects the integrity of the Awards. No director of the Society or staff member gets involved in the judging of the Awards in any way. The Chair’s role is to assist and guide the Panel only. She does not have voting rights. The judging panel makes its decisions confidentially. Only the judging panel interviews the nominees. Directors or staff members of the Society are excluded.

Why Donoghue Solicitors is Shortlisted for Liverpool Law Society’s Small Law Firm Award

Donoghue Solicitors has been shortlisted in the Small Law Firm Award category. Competitors must be law firms with up to 30 locally-based staff (including non-fee- earning staff). The “local” area is large. It includes the city of Liverpool, and the Metropolitan Boroughs of Wirral, Knowsley, Sefton, Widnes, St Helens and Neston in the County of Cheshire.

Having met that definition, the judging panel then considered the following:

  • a firm that has made a significant contribution and/or brought reputational benefit to Liverpool and surrounding areas
  • evidence of attracting more than local work
  • a firm that represents “law at its best”
  • demonstrating a commitment to law as a business, run effectively while taking into account client care
  • training initiatives and accreditations received or being worked towards
  • client initiatives that have set the firm apart from the rest
  • contribution to the community including pro-bono work.

The judges decided that Donoghue Solicitors was one of only two firms which met these strict criteria.

Niche Law Firm Award for the 2019 Modern Law Awards.
Donoghue Solicitors was also shortlisted for the Boutique Law Firm Award in the 2019 Modern Law Awards.

Liverpool Law Society Comments

The Society announced the shortlist by saying:

Liverpool Law Society is delighted by the number of nominations received for the 2019 Legal Awards from individuals, teams and firms across the membership. The competition has been fierce, the independent judging panel have met and interviews have taken place. The judging panel said: “The quality, quantity and calibre of applications for this year’s Liverpool Law Society Legal Awards has been incredibly high, which reflects the strength and talent of our local legal community.

Liverpool Law Society President Chris Topping said:

I am very excited that the Legal Awards ceremony is now only a few weeks away, the announcement of the shortlist is always a significant moment in the build-up. I know that the evening will be a fantastic showcase for the excellent work of both individuals and firms who are members of Liverpool Law Society and I hope you will join with me in this celebration.

The awards ceremony will take place at Rum Warehouse, Stanley Dock, Liverpool on Friday, 17th May 2019. The BBC’s Roger Johnson is hosting. The local Law Society describe the black-tie event as “one of the highlights of the region’s legal profession’s calendar’s year”.

Why This Matters

I am thrilled that the judging panel recognised my team’s efforts.  Their dedication and commitment to our clients impresses me every day. I look forward to taking my staff to the event as a “thank you” for all their hard work. This expert recognition also gives our clients confidence that they are working with a leading law firm, dedicated to putting their needs first and representing “the law at its best”.

Kevin Donoghue leads Donoghue Solicitors, a firm of compensation claims lawyers. Contact him here.

Five Things You Should Know About Spit Hoods

Photo of Kevin Donoghue, solicitor, who explains five things you should know about spit hoods.
Kevin Donoghue, solicitor explains five things you should know about spit hoods.

By Kevin Donoghue, solicitor and specialist in civil actions against the police

Last week I appeared on the BBC Three Counties’ JVS programme to talk about spit hoods. I’ve discussed spit hoods (which the police like to call “spit guards”) on tv and radio before. The discussions always take the same approach. The presenter discusses the issue of the day (this week it was the use of spit hoods on children) with a police officer (or pro-police advocate) and me, before inviting calls from the public and/or serving police officers. I’m there to provide “balance”. The discussions are rarely balanced though, and usually go something like this:

Police Officer: We just want to be safe in our work. Spit hoods help protect our hard-working police.

Presenter: I agree. Spitting is disgusting. I wouldn’t want to be spat at just for going to work. Would you want to be spat at Mr Donoghue?

Me: No. I agree that spitting is disgusting, but there’s more to it than that…

Presenter and police officer: (interrupting)…Spitting has no place in our society. Why are you defending these thugs? You’re wrong! Etc. etc.

Presenter: Let’s take some calls.

Member of the public/ police officer who has been told to call in: Spitting is disgusting! They get what they deserve.

Me: (sigh).

As you can tell, arguments against the use of spit hoods get drowned out. This might be because of some fundamental misunderstandings about spit hoods. Here’s five things everyone (including those in the media) should know.

1. Spit hoods/ guards can kill or cause life-changing injuries

Common, misleading statements I hear when discussing “spit guards” are that

i. they are just “fabric” or “mesh”, and

ii. that people can breathe easily in them.

Neither of these things are true.

Spit hood designs vary. (I’ll come on to why there are different spit hood masks in use shortly.)  Click here to see Damian Pettit, police commander for south Worcestershire, wearing one of his force’s spit hoods.

You can see that the main body of the spit hood is a mesh fabric. But the section in front of the mouth and nose is a plastic/ mesh “shield”.

The use of a plastic shield makes sense when you think about it. The hood isn’t there for effect: it’s purpose is to prevent the transmission of mucus and spit. How could a mere mesh fabric do that?

It makes more sense to think of spit hoods as semi-clear plastic bags. Now ask yourself: should the police put a plastic bag over someone’s head to prevent them spitting?

The plastic shield in front of the mouth and nose is an essential feature of spit hoods. But it’s also a dangerous flaw. It prevents air getting through when impermeable, usually with spit, mucus, and vomit.

Suffocation is a real risk to spit hood wearers. The masks can result in death or life-changing injuries and/or trauma.

Even though the police are trained to be aware of these risks, training doesn’t remove them. Jonathan Pluck of Cambridgeshire suffocated and died in police custody after police spit-hooded him and left him face down on a mattress. It appears that Mr Pluck suffocated because the mask became impermeable due to his spit and/or it lodged in front of his mouth and nose.

For those who do not die, the trauma of being spit-hooded can have lasting effects. This is especially so when combined with other restraint techniques. Spit hoods are rarely used in isolation, and never used in controlled environments such as radio studios, like Nick Ferrari did here. The police are more likely to use spit guards in situations like the one below involving IK Aihie. Watch the short clip and you’ll get a sense of the trauma spit hood victims suffer:

My client Paul Smith went through something similar. Sussex Police unlawfully arrested him. The police sprayed Paul in the face with PAVA (pepper) incapacitant spray. PAVA spray is an effective, painful weapon. It causes chemical burns, a reflexive narrowing of the airways, and makes the mucus membranes (nose, mouth, eyes) flow. It’s a natural response to spit, push out mucus, and cry. After spraying Paul in the face with pepper spray, the police knelt on his back, handcuffed Paul to the rear, and held him face-down on the ground. Officers also applied leg restraints rendering him completely immobile and defenceless.

They then put a spit hood over Paul’s head when they saw him spitting the PAVA spray out, even though he was face-down and not spitting at them. The spit hood quickly filled with spit and mucus. Paul begged the police for help, saying that he was choking. The police ignored his pleas and kept him in a spit hood for about half an hour.

Paul suffered physical injuries and psychological trauma due to the police assault. He was a law-abiding citizen who will “never trust them (the police) again”.

2. Spit hoods are not government-approved

It stands to reason that police officers’ “kit”, or equipment, must be tested and approved before use. The police want to know that it’s fit for purpose and can stand up to the rigours of the job. The public want to know that it’s safe and that taxpayers are getting value for money. The Home Office, through the Defence Science and Technology Laboratory (Dstl), tests police kit first. This approach also saves individual police forces time and money.

The Home Office’s Dstl incorporated the Centre for Applied Science and Technology (CAST). CAST tested and set standards for CS and PAVA sprays, body armour, body worn video devices, and other things related to police work.

But CAST (now part of Dstl) has not:

  • Formally evaluated spit hoods
  • Identified suitable models for use
  • Produced any risk, safety, ethical, medical or other relevant assessments of spit hoods.

This situation created a testing and information “vacuum”. Some Chief Constables filled the gap even if their organisations may not have been equipped to do so. Forces may not have the technical expertise or budgets to

  • assess different products,
  • produce the relevant assessments, or
  • pay for suitable training.

This is made worse by media, political, and peer pressure to introduce spit hoods quickly. All these things could lead to corner-cutting with potentially devastating consequences, as I explained here.

You have to wonder why Central Government has failed to test spit hoods. The Home Office has “passed the buck” to the police. If I were a Chief Constable, I’d want answers before issuing this potentially deadly kit to my officers.

And as members of the public we have a right to know if spit hoods are safe.

3. Alternative approaches exist

During media interviews I’m usually asked “what is the alternative to spit hoods?”. The simple answer is “don’t use them”. But here are two more:

i. The use of restraints/ holds

ii. Officer visors

i. Restraints/ holds

Listen to the JVS show where we discuss spit hoods by clicking on the play button below:

You’ll hear Chris Culley, a former Metropolitan Police officer, explain (at 9 minutes 17 seconds -9 minutes 29 seconds) how:

“When I was a police officer… the simple expedient was, in those days, two or three of us would hold them and stand behind them and take a very firm grip on them and get them to a point where we could get them under some kind of control whereby they started to calm.”

This approach is effective and consistent with police officers’ training to de-escalate situations. Senior police officers have told me that some officers are too quick to use their kit. These rank-and-file officers ignore de-escalation techniques and Personal Safety Training guidance. In most cases officers could avoid using spit hoods and putting suspects at risk if they applied their training correctly.

ii. Visors

Alternatives to spit hoods exist in the event restraint techniques fail. One such approach is for police officers to use visors, like the one shown here.

Police advocates say this is impractical. They ask why officers should have to wear visors instead of using a spit hood on the suspect. There are Human Rights issues which make the use of visors worthwhile, but put them aside for a moment. One practical reason (that even police officers can get behind) is that spit hoods can make situations worse.

4. Spit hoods can make things worse

Something that can get lost in the discussion about spit hoods is that police use them on suspects, not criminals. Everyone, even a person spitting, is innocent until proven guilty. Arresting someone and putting a spit hood over their head is a serious matter. It’s a deprivation of liberty and assault if unjustified. It’s also a degrading, humiliating experience and breaches human rights.

Suspects can become upset, indignant, and argumentative when arrested. But that does not justify using a spit hood, no matter how offended the arresting officer may be by the suspect’s conduct. (Read Paul Smith’s case report for details of how a police officer was criticised for this.)

And situations can deteriorate quickly. Problems arise when officers forget their training and fail to recognise the signs of a mental health crisis or drug use. Fear, confusion, and desperation can be powerful motivators to lash out. Spit hood masks can escalate the situation from a “mere” mental health or drug-induced crisis to a life-threatening one. In a recent tragic case, Terry Smith had taken amphetamines before his arrest. An inquest found Surrey Police failed to consider this when restraining him. The coroner reported that:

“Prolonged and excessive restraint, and a failure to understand that the resistance to the restraint [by the deceased] was leading to an ongoing depletion of oxygen and an increased level of adrenaline and that this was speeding up the effects of the [amphetamines] in his body.”

Mr Smith died the following day, The Coroner’s Court jury criticised Surrey Police for “serious failings and neglect”.

5. Spit hoods are unusual in public-facing roles

Here’s something the police don’t want you to know: spit hoods are rarely used by other professionals dealing with members of the public. This might be because, according to West Midlands Police’s Force own Health, Safety & Welfare Committee

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

This includes serious diseases such as Hepatitis C and HIV, which cannot be transmitted by spitting. The Hepatitis C Trust and National Aids Trust expressed concern that spit hoods were wrongly being promoted as a way to help prevent hepatitis C and HIV. It criticised those who promote use this unfounded fear for their own ends, saying:

“Such falsehoods also cause unnecessary alarm to police staff. Given the significant challenges faced by police officers in the line of duty, causing them to fear they have been put at risk when they have not places an undue burden upon them, and must not go unchallenged. While the debate around the use of spit hoods is an important one for the police, policy-makers and the public, hepatitis C and HIV are of no relevance to it and should not be used as justification for their use.”

In hospitals, schools, and other places where people spit at staff, de-escalation techniques, such as effective communication and restraint holds, are used. Why should the police be any different?

Role in Society

I’m not surprised that the police campaign to get spit hoods. Police officers and their supporters are always looking for ways to get new “kit”, which they can use to control and subdue suspects. As I explained in this blog post this is leading to the increasing militarisation of our police force.

But for the rest of us, particularly those who want to live in a civilised society, spit hoods have no place.

Kevin Donoghue is a solicitor who represents victims of police misconduct. Contact him here.

 

 

What Defendant Lawyers Don’t Understand About Claimants

Photo of Daniel Fitzsimmons, FCILEx, who explains what defendant lawyers don't understand about claimants in this blog post.
Daniel Fitzsimmons explains what defendant lawyers don’t understand about claimants in this blog post.

By Daniel Fitzsimmons, FCILEx

“Words cannot express my gratitude to you. I have came across many people,all from  different walks of life, but can honestly say with my hand on my precious nannies ashes that you one in a million.

You should be so extremely proud of yourself. Thank you are just words but when they are sent from the heart, I believe that they mean so much more.

May god bless you and your family.’

One of my clients wrote this in an email last week. It made me incredibly proud. It’s always nice to be appreciated, especially because bringing civil claims can be taxing for both claimants and their legal advisers. Defendant lawyers may never understand what it means to bring a civil claim. Most spend their days dealing with insurance company claims handlers, police force representatives, and in-house legal teams. This means that both client and defendant lawyer are experienced professionals comfortable with litigation. Emotions tend to be left out of it. But this means that many defendant lawyers don’t see the whole picture.

Why?

Why Claimants Bring Civil Actions

Consider the case of the client who wrote that email. I’m helping her with a civil compensation claim against the police. She’s a fine, upstanding member of the community who has been wronged by the very people she believed were there to protect her. Her faith in the police and judicial system has been shaken to its core. For this reason, it was no small feat for her to put her trust in another branch of the legal system: lawyers.

And yet she did.

My client has a strong sense of justice. She knew what she had to do to get it: instruct a specialist firm of solicitors to pursue a civil claim against the police.

My client was cautious at first. She had to overcome worries about bringing a civil claim and deal with paperwork and other necessities. All this takes time, effort, and persistence. Then add that we did not know each other and had to build a rapport based on mutual trust and understanding. Civil actions against the police can take years. It helps if both client and lawyer get on. Fortunately, we do.

My client opened up to me. She told me about the shame and humiliation she felt when the police mistreated her. She explained how she felt abandoned by the legal system, and how vulnerable and afraid she now feels. Her fear of police officers is real, genuine, and affects her daily life. Every knock on the door causes her to jump. She crosses the street when she sees police officers on patrol. Police car sirens and lights make her heart race. All because police officers crossed the line from enforcing the law to breaking it.

How Claimant Lawyers Help Their Clients

For me, this information is vital. From a work perspective, it helps me maximise her compensation claim and frame her witness statement. But there’s more to it than that. She knows I have her best interests at heart. Knowing how the police’s misconduct affected her means that I am better able to help. When she gets in touch I listen. If she gets frustrated or upset, I am better placed to understand why. Sometimes my client gets teary and emotional when we discuss her claim. If I didn’t know her and her story it would be hard to understand why. Especially when the simplest procedural matters trigger something. Her dreadful experience is still so raw. So, I give her time and space when she needs it, knowing that she’s doing her best to hold it together.

But this behaviour also takes its toll on me and my fellow lawyers working for claimants bringing civil compensation claims. Defendant lawyers rarely deal with such emotion. For them, procedural tricks of the trade designed to delay or deny claims carry little personal consequences. But for my clients those tools can be devastating and set back recovery. Defendant lawyers rarely deal with these human effects. I’m the one who must explain these things and keep my clients going through the tough times as they seek justice. Hard as this is, I’m not complaining. It’s my job. But the role of lawyer-as-counsellor is not something widely known outside the claimant side of the legal profession. It is not a job for which law school can train you. Nor, I suspect, is it a role many defendant lawyers would want.

What Defendant Lawyers Can Learn From This

My message to defendant lawyers is this: your actions have consequences.  Put yourself in the claimant’s shoes and think about how your conduct or latest clever email will come across.  It’s possible to fearlessly represent your client and act with compassion. Not only will you avoid inflicting unnecessary pain; you may become a better lawyer.

 

Daniel Fitzsimmons is a Chartered Legal Executive. Contact him here.

A Letter to Front-Line Police Officers in the Met

Photo of Solicitor Kevin Donoghue, who writes about spit hoods in this letter to front-line police officers in the Met.
Solicitor Kevin Donoghue writes about spit hoods in this letter to front-line police officers in the Met.

Dear front-line police officers in the Met,

Most of you don’t know me. If you come across my name in a professional capacity something’s gone very wrong. That’s because I am a solicitor who represents victims of police misconduct. Many of my cases involve suing the Metropolitan Police (“the Met”).

I have appeared on t.v. and radio up and down the country debating the use of spit hoods over the last few years. I have been asked, “how would you like it if someone spat in your face when you were at work?” The answer is obvious; I would not. But this question misses the point. I am not a police officer. You are. And front-line Met Police officers like you will soon get spit hoods as part of their standard equipment. The campaigners in your ranks will be celebrating. You persuaded Commissioner Cressida Dick to extend the “spit guard” roll out from custody suites. But before you pop the champagne, think about what this decision means for you, your fellow officers, and the public you serve. Listen to what those outside the police have to say. Unlike some, what I have to say is not biased with self-interest. And if you take what I say to heart you might avoid the kinds of incidents which lead innocent victims to my office door.

Spit Hoods or Spit Guards?

Before I go further, I know your Police Federation representatives don’t like the term “spit hoods”. They prefer “spit guards”. It probably polled well in a focus group. But who are they kidding? Even your own senior officers and some Police Federation representatives call them spit hoods. If you’re being honest with yourself, so did you, until you learned that the phrase “spit guards” would help convince the public to approve your use of these potentially deadly tools.

So spit hoods will become standard equipment carried by you and your fellow “bobbies on the beat” in the Met. The Metropolitan Police is the UK’s biggest police force, with more than 30,000 full-time officers, so this has significant consequences. Spit hoods (or spit guards) join other standard equipment issued to front-line police officers. These include handcuffs, leg braces, batons, and incapacitant (CS or PAVA “pepper”) spray. You’re going to make Batman jealous with all this “kit”, as some of you call it.

Getting a new piece of kit might be exciting. Remember how thrilling it was when you first got to use handcuffs and leg braces? Some of you had that thrill turned up to eleven when you got to use a Taser. (If you’re not one of them, you might be soon. The Met is giving Tasers to about 2,500 more officers within the next 13 months.)

Conduct of Front-Line Police Officers

But before you get carried away, think about the consequences of the Commissioner’s decision. I’ve had private conversations with senior officers who expressed concern that some front line police officers are too quick to use their kit. They by-pass training in de-escalation techniques, ignore Personal Safety Training guidance, and the Code of Ethics. Instead, these front-liners go straight to their tools, involving the use of force.

Often this rush to use force doesn’t end well. Tragically, some people die at police officers’ hands. Many others, including children, are injured and traumatised. You might be responsible for a life-ending or life-changing incident when using a spit hood. And if you are, you’ll be on your own.

“Nonsense,” you say.

Surely your bosses will understand. They’re right behind the spit hood roll out. Many of them lobbied for it. It’s meant to “ensure officers have what they need to do their jobs effectively and safely“, as Cressida Dick said. And the Police Federation has got your back. They’ll #protecttheprotectors like you, joining you in misconduct interviews, and speaking up for you in the media.

Are you sure about that?

It’s time for some home truths from a solicitor who has helped people get compensation after police officers have unlawfully used spit hoods.

When, not if, you’re involved in a serious incident involving the use of a spit hood, your every action will be scrutinized to the full extent of criminal, civil, and employment law.

You won’t be able to hide behind a Twitter hashtag. Nick Ferrari and those who call in to his programme, including some of your colleagues, won’t jump to your defence. You will have to show that everything you did, including the use of force, was necessary, lawful, reasonable, and proportionate. Fail to do so and you can expect public disciplinary proceedings at the least. The media love a good headline. You’ll be a star! And you might be involved in criminal and/ or civil proceedings. They could end in judicial criticism which the Met will act upon, compensation paid to your victim, and, in the worst cases, prison. It’s a good job you’re trained in courtroom etiquette and how to give evidence. You might need it.

Spit Hood Training

So, when you go for your spit hood training, ask your trainer why no one in central government has tested and approved spit hoods. Different kinds of “spit guard” are in use by police forces throughout the country. Are you confident the Met’s spit hoods are safe? How can you tell?

And, despite pressure from local police federations, you know that many UK forces refuse to issue spit hoods to front line police. Ask yourself why some forces deal with suspects spitting using other methods. Is the promotion of spit hoods a political campaign, in which front-line police officers are pawns in a chess game?

At some point, a volunteer will agree to a trainer applying a spit hood. You know how unrealistic this “spit guard” demonstration will be. BBC Wales’ Jason Mohammed felt “very claustrophobic” wearing a spit hood in the safety and comfort of a recording studio. Watch Jason and I discuss his experience by clicking on the link below:

Your subjects will not be in such an environment or calm state of mind, especially if they have been sprayed in the face with CS or PAVA.

Be on guard for fear-mongering. Despite what some police forces say, Hepatitis C and HIV cannot be transmitted through saliva. Don’t believe the lies and hype. Share accurate information about the risks with your colleagues.

As a police officer on the front line, you find yourself in challenging situations which by-standers inflame. Don’t give in to peer pressure or public goading when you’re on duty. Pay close attention to all aspects of your training, including the need to de-escalate situations before resorting to force. Remember your primary duty to protect the public in the Police Code of Ethics. Be mindful of the weapons effect, which increases the likelihood of assault and the unnecessary use of force by police officers.

Lastly, as with any other use-of-force kit, don’t use spit hoods just because you can.

Yours,

Kevin Donoghue, Solicitor Director of Donoghue Solicitors

The Good, the Bad, and the Ugly Sides of Police Custody Officers

Photo of Daniel Fitzsimmons, Chartered Legal Executive, who discusses the role of police custody officers in this blog post.
Daniel Fitzsimmons, Chartered Legal Executive, discusses the role of police custody officers here.

By Daniel Fitzsimmons, Chartered Legal Executive

Last week I explained how Cheshire Police unlawfully detained my client Sam Povey in what appears to be a breach of the Police Code of Ethics.

This week I want to look at the role of the police custody officers in Sam’s case.

(Mr Povey kindly allowed me to use his details. The facts in this blog post are based on his version of events, some of which are disputed.)

The facts

Sam had his mobile phone stolen. He reported the theft to the police. They recovered the phone and agreed to meet him outside Warrington Police Station one night up to 11pm.

Mr Povey had recently been subject to a 10pm curfew but was now free of that restriction.

As arranged, two Cheshire Police officers met Sam outside Warrington Police Station after 10pm. One of the officers told my client that he was in breach of his curfew and arrested him. This was despite Sam’s protests that he was not subject to any curfew conditions. The police officers took Mr Povey to Runcorn Police Station and presented him to a custody officer for processing.

The Custody Officer checked Sam’s record. He found that Mr Povey was telling the truth, so did not authorise continued detention.

The police kept Sam in a holding cell in the custody suite while they dealt with matters. When leaving the cell about an hour after arrest, the arresting officer accused Mr Povey of damaging the cell door. He had not, but this time the Custody Officer accepted his colleague’s comments and authorised detention for criminal damage.

The police held Sam for a further 8 hours 56 minutes. He was only released when a shift change led to a new Custody Officer considering matters. The new Custody Officer checked CCTV footage and found that Mr Povey did not damage the door.

He authorised Sam’s release without charge.

Mr Povey contacted Donoghue Solicitors to bring a civil action against Cheshire Police. We represented him on a “no win no fee” basis. With our help, he recovered £4,250 plus his legal costs. Sam did not have to attend court and was vindicated in his decision to take the police to task.

What Do Police Custody Officers Do?

The custody officer has a special role. Custody officers work in police station custody suites. They have the rank of sergeant as a minimum and are responsible for the care and welfare of detained suspects.

The arresting officer must present the suspect to the police custody officer, explain the circumstances of arrest, and seek authority to detain. The custody officer must decide if there is enough evidence to justify a criminal charge before authorising detention.

If the custody officer does not think there is enough evidence at that time, they can still authorise detention if there are

  1. a) reasonable grounds for believing that detention is necessary to secure or preserve evidence relating to the arrest, or
  2. b) to obtain evidence by questioning.

The custody officer must authorise the suspect’s release if they do not think that there is sufficient evidence to justify a charge immediately, or that evidence will come forward during detention.

The Good Custody Officer

Police act unlawfully when they deprive someone of their liberty without lawful cause. The burden of proof is on the police, not the subject, to justify detention on a minute-by-minute basis. Arresting officers and custody officers are under the same duty.

In my opinion, Sam’s initial arrest was unlawful. His explanation should have created doubt in the arresting officer’s mind. The officer could have easily checked John’s story. They were standing outside a police station after all. Even if this was not an option, the arresting officer could have arranged a voluntary interview instead of depriving Sam of his liberty.

Thankfully, this officer was not the only one involved.

The Police and Criminal Evidence Act (1984) rules meant that the Custody Officer was under a duty to check Sam’s record, which showed that he was telling the truth. Sam’s one hour in police detention could have been longer if the Custody Officer simply accepted the arresting officer’s story. Ultimately, this duty helped limit Sam’s time in custody and his compensation. This was a good thing for Mr Povey, the police, and Cheshire taxpayers.

The Bad

The same Custody Officer failed in his duty moments later by authorising Sam’s detention for criminal damage. It would have taken moments to check the CCTV footage. (In most stations is accessible from the Custody Officer’s desk.) If the Custody Officer did his job, he would have found that my client did not damage the door and, again, overridden the word of his arresting officer and released Mr Povey from police custody. But he didn’t, leading to Sam’s detention for nearly nine hours.

The Ugly

In my opinion, the arresting officer(s) in Sam’s case acted unethically. The police unlawfully arrested my client twice. But they are not the only ones responsible. The first Custody Officer failed in his duty to check the second allegation of criminal damage when he authorised detention, or later. It took a second Custody Officer’s intervention to free Sam. He correctly applied the same rules the first Custody Officer should have followed. In this respect, the first Custody Officer was at least as much to blame for Sam’s unlawful arrest as the arresting officer. As a senior officer, this police staff member should have known better. His conduct was inexcusable.

Daniel Fitzsimmons helps victims of police misconduct throughout England and Wales. Contact him for expert advice here.