Police Abuse of Position for a Sexual Purpose – No More Excuses

Photo of Kevin Donoghue, solicitor, who discusses what is being done to deal with police abuse of position for a sexual purpose.
Kevin Donoghue, solicitor, discusses what is being done to deal with police abuse of position for a sexual purpose here.

By Kevin Donoghue, solicitor

Recently I wrote about the serious issue of police abuse of position for a sexual purpose. I expressed concern that the police are not tackling the issue, causing serious harm to victims. As a recent report shows, I am not alone. But, what it also shows is that police staff at all levels, from senior officers to volunteers, are now on notice.

What is Police Abuse of Position for a Sexual Purpose?

This form of serious corruption 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.”

It has also been described as police abuse of authority for sexual gain.

HMICFRS January 2017 Report

In my earlier post I asked if some of these cases were being “brushed under the carpet” by the police. I based this in my experience of dealing with police abuse of authority for sexual gain compensation claims. I also referred to a January 2017 report by Her Majesty’s Inspectorate of Constabulary and Fire & Rescue Services (HMICFRS). Among other things, the inspectorate noted that:

  • Police abuse of position for a sexual purpose is a nationwide problem. It affected all but one police force during the review period March 2014-March 2016.
  • 40% of allegations involved vulnerable victims of crime
  • 39% of accusations of police abuse of position for sexual gain involved victims of domestic abuse
  • Less than half (48%) of these police abuse cases were reported to the Independent Police Complaints Commission. This was despite clear guidance from HMICFRS and others.
  • Between 1 December 2013 and 30 November 2014 only 33 officers had been dismissed after having a relationship with a vulnerable person. This “apparent disconnect” between the number of alleged cases and disciplinary action means that some of these predators are still serving, giving them the opportunity to repeat their misconduct.

In its January 2017 report HMICFRS recommended action to deal with police abuse of position for a sexual purpose. It said:

“Within six months, all forces should have started to implement a plan to achieve the capability and capacity required to seek intelligence on potential abuse of authority for sexual gain. These plans should include consideration of the technology and resources required to monitor IT systems actively and to build relationships with the individuals and organisations that support vulnerable people.”

Police Response to the HMICFRS January 2017 report

Did the senior officers who set force policy listen to HMICFRS?

The inspectorate gave forces until 8 June 2017 “to develop and begin to implement plans to achieve the capability and capacity required to seek intelligence on potential abuse of position for a sexual purpose.”

It reviewed the plans, which were all submitted by 31 May 2017. The results are mixed. HMICFRS’ October 2017 report shows “insufficient progress”. According to HMI Mike Cunningham,

“The majority of police forces in England and Wales still have work do.”

It found that only two of the 43 police forces already had adequate capacity and capability in place. Of the remaining 41 forces:

  • Almost half (21) of force plans did not contain any reference to reviewing and improving the capability and capacity to identify potential abuse of position for a sexual purpose
  • Nine force plans contained some elements of capacity and/or capability but the force had either not commenced implementation or had provided insufficient information for HMICFRS to assess progress
  • Almost half of all forces did not have either the capability or capacity to monitor and audit every aspect of their IT infrastructure. (HMICFRS said that this was important to prevent and detect misuse of information held on police computer systems.)
  • Despite not being “resource intensive”, six forces failed to reassure HMICFRS that they had built links with staff in agencies that support domestic abuse victims
  • More than half (26) of all forces had failed to implement their plans, or had supplied such minimal detail that HMICFRS could not evaluate their progress.
  • Most concerning was the fact that 11 police forces did not provide sufficient information to assess whether they were responding to any elements of the recommendations.

The inspectorate noted creditable work at a national level. But, in one way or another, most police forces have failed to fully address this serious form of police misconduct. This is despite chief officers in those forces approving the national work, which focused on 3 areas:

  1. Definition and strategy
  2. Guidance
  3. Complaints Investigations

1. Definition and strategy

An example of the work done at national level is that of the National Police Chiefs’ Council (NPCC). The NPCC includes senior police officers from every force in the country. In April 2017 it agreed a national strategy to deal with police abuse of position for a sexual purpose. This included creating a new definition for this form of serious police corruption. (HMICFRS previously referred to it as “abuse of authority for sexual gain”.) I quoted the agreed definition earlier.

It is worth noting that the NPCC definition includes corruption by police officers and police staff members. These include volunteers or staff contracted into policing or support roles. It has the potential to greatly increase the number of people caught by the guidance. This makes sense from a practical and public perspective. Police abuse of position for a sexual purpose should be dealt with the same way, regardless of the title of the person who committed it.

The NPCC strategy is intended to “prevent such behaviours from occurring in the first instance”. It also emphasises a commitment to working together. Forces say they will focus on “the means by which we will improve our collective approaches to the utilisation of proactive tactics to better gather intelligence, identify corrupt individuals and vigorously pursue perpetrators in an effort to remove them from the service for the benefit of the public and the service alike”.

They promise to focus on:

  • Prevention – this covers vetting, professional boundaries training, and guidance for supervisors;
  • Intelligence – this covers intelligence gathering, relationships with other agencies that support vulnerable victims, IT monitoring and audit, development of intelligence and the identification of intelligence gaps;
  • Enforcement – this covers recording cases as serious corruption, oversight of the force’s CCU, referrals to the IPCC, use of an investigative checklist, victim support and access to suitably trained specialist staff; and
  • Engagement – this covers working with support agencies, internal and external communication strategies, raising awareness and learning organisational lessons from previous cases

The consequence of this is that senior officers in all police forces agreed on the issue, and committed to work to prevent it.

2. Guidance by the College of Policing on Abuse of Authority for a Sexual Purpose

Supporting the NPCC’s work is the College of Policing (CoP). The CoP is the professional body for everyone who works for the police service in England and Wales. This includes police officers, special constables, police staff, and police volunteers.

It sets policing standards such as those in the Police Code of Ethics. The CoP produced a guide in response to HMICFRS’ report: “Maintaining a professional boundary between police and members of the public”.

As the introductory note states,

“There is no place in policing for those who abuse their position for sexual purposes.”

The CoP and NPCC agreed the guide in April 2017. All police forces received copies and everyone working within the police, even volunteers, should now know and follow the guidelines.

3. Complaints Investigations: The Role of the Independent Police Complaints Commission (IPCC) and government

The IPCC amended its mandatory referral criteria in response to HMICFRS’ January 2017 report. HMICFRS was critical of the police’s failure to recognise the problem of abuse of position for a sexual purpose as a form of serious corruption. As a result, such cases were not referred to the IPCC, or not referred “without delay” as required.

It made two recommendations:

  1. Within three months, all forces should complete a retrospective review of allegations and consider referrals to the IPCC.
  2. Within three months, forces should establish effective procedures to identify all future allegations of abuse of authority for sexual gain as serious corruption matters and make appropriate referrals to the IPCC.

The IPCC also wrote to all chief constables in December 2016 raising the mandatory referral issue. And in January 2017 the IPCC wrote to all forces. It reminded them to review cases from the previous three years to decide if, given the clarified criteria, any cases should be referred to the IPCC.

It also asked for more information on closed cases that were not referred but should have been. HMICFRS says that all forces have now responded.

Government Involvement

The Home Office introduced changes to the Police (Complaints and Misconduct) (Amendment) Regulations 2017. Effective from 22 May 2017, the “serious corruption” definition explicitly includes police abuse of position for a sexual purpose or for the purpose of pursuing an improper emotional relationship. The IPCC operational advice note for April 2017 states that

This clarifies the existing position, that such behaviour is an example of serious corruption that must be referred to the IPCC.

In case there is any doubt, the note gives further guidance and examples of the abuse of authority for a sexual purpose. Now there should be no room for confusion. Police professional standards departments must refer this form of serious corruption straight to the IPCC. People like my client “Jean” should not have to wonder if their complaints are going to be brushed under the carpet by the police.

Action

HMICFRS wrote to all forces with their assessment. It says it will re-inspect forces next year and notes that:

Between this feedback provided in our individual letters to forces, the national strategy, College of Policing guidance and IPCC referral criteria, we believe that all forces have the information they need to produce and implement effective plans to address our recommendation, and to improve the way they prevent, seek out and respond to the problem of abuse of position for a sexual purpose more widely.

I agree. For every police force, at all levels, there are no more excuses.

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

 

Was Simon Brodkin Wrongfully Arrested for a Breach of the Peace?

Photo of Kevin Donoghue, solicitor, who considers if Simon Brodkin was wrongfully arrested for a breach of the peace.
Was Simon Brodkin wrongfully arrested for a breach of the peace? Kevin Donoghue looks at the evidence here.

By Kevin Donoghue, solicitor

It’s fair to say that Theresa May’s speech at the Conservative party conference last week was farcical. Not only did she suffer persistent coughing, but letters on the sign behind her fell off the wall, giving quick-witted viewers the chance to mock her with social media memes.

 

Perhaps most embarrassing was the prank by Simon Brodkin, also known as Lee Nelson. He presented Mrs May with a fake P45 (HMRC details of employee leaving work). As he handed it over to a confused and embarrassed Mrs May, he said, “Boris told me to give you this.”

After interrupting the Prime Minister, he turned to Foreign Secretary Boris Johnson, who was sitting in the front row with fellow cabinet members. Simon Brodkin gave Mr Johnson a “thumbs up”, saying, “Boris, job done.”

Conference security officers escorted Mr Brodkin from the hall. Chief Superintendent John O’Hare was in charge of security at the event. He confirmed what happened:

Earlier today a man was detained by conference security during the Prime Minister’s speech.

Officers attended and the man was arrested to prevent a breach of the peace and was released a short time later.

No doubt the incident was embarrassing for the Chief Superintendent too. Mr Brodkin “had legitimate accreditation” to the event after all. But there’s another issue: were the police right to arrest him for “a breach of the peace”?

The Law on Breach of the Peace

Some police officers do not understand the law in breach of the peace cases. Here’s a quick refresher.

“A breach of the peace” refers to “a breach of the Queen’s peace”, and has its roots in the Justices of the Peace Act (1361). It is not a criminal offence in the sense that no conviction, fine, or imprisonment can directly come from the breach. Instead, magistrates have the power to issue a “bind over” for a limited time to prevent a further breach of the peace.

In R v Howell (1982) the Court of Appeal confirmed the elements of this “common law” concept. It is a situation where the behaviour of the person involved caused the arresting officer (or private citizen such as a conference security staff member) to believe that:

  1. A breach of the peace had or would occur, and that
  2. It related to harm which was actually done, or likely to be done, to a person, or in his/ her presence, their property.

The Court of Appeal went on to explain that officers (or private citizens) have the power to arrest without a warrant where:

  • A breach of the peace was committed in the presence of the person making the arrest
  • There was a threat of the breach of the peace being renewed, and
  • In cases where no breach of the peace had been committed, the person making the arrest reasonably and honestly believed that such a breach would be committed in the immediate future.

Considering the Simon Brodkin Case

Whether there was a breach of the peace in Simon Brodkin’s case depends on how a court would interpret these rules. To make a ruling the court would have to consider the:

  1. Circumstances (objective consideration), and
  2. Arresting officer’s (subjective) view.

Watch the footage of Mr Brodkin’s interaction with the Prime Minister and cabinet members below:

Was there harm, or the imminent threat of harm, to person or property? Was there a threat that a breach of the peace would be renewed or committed in the immediate future? If the police argued that Mr Brodkin had not acted unlawfully but that there was an imminent threat of a breach of the peace, could they say that there was

a sufficiently real and present threat to the peace to justify the extreme step of depriving of his liberty a citizen who is not at the time acting unlawfully.

(Foulkes v Merseyside Police (1998)

Some viewers might conclude that Mr Brodkin does not appear to do any acts which cause, or are likely to cause, harm. Others may say that the fact that:

-he got so close to the PM and cabinet, and

-was able to interact with them in such a high-profile setting,

created a reasonable belief for security staff and police that a breach of the peace occurred.

Continued Detention for Breach of the Peace

Police often claim a breach of the peace to break up violent, or potentially violent, situations. Once they are satisfied that the peace has been restored justification for holding those involved no longer exists.

This matters because, even if the breach of the peace arrest was lawful, the police must justify continuing detention on a “minute by minute” basis. Failing to do so can result in compensation awards.

Chief Superintendent O’Hare said that Simon Brodkin was released “a short time later”.

But, as this footage showsMr Brodkin was handcuffed, calm and co-operative as the police escorted him out of the venue. They put him in a police van, presumably to go to a police station. Was that necessary given that Mr Brodkin was no longer in the conference hall and could not renew the breach of the peace? And, if they went to a police station, were the police justified in detaining him there, even for “a short time”?

Consequences for Mr Brodkin (a.k.a. Lee Nelson)

I don’t know if Mr Brodkin intends to take action against the police. It looks like he has an arguable case, but I can’t comment further without knowing all the facts.

If he does decide to claim compensation, Mr Brodkin should be aware that police routinely fight compensation claims. It may take a trial at court to determine if his arrest and detention were lawful.

As matters stand, Mr Brodkin’s prank will have lasting consequences for his personal record. Greater Manchester Police said no charges were being brought against him. In the context of a breach of the peace this means that Mr Brodkin was not taken to a magistrates’ court where he could have been bound over to keep the peace.

But he was arrested.

Some employers and regulators like the Solicitors Regulation Authority make you report arrests. And, if he was formally processed at a police station, the police now hold his photographs, fingerprints, and DNA records. They will keep his records on police computers unless Mr Brodkin proves the arrest was unlawful. Even then, as I explained here, in the case of custody photographs, he would have to apply to remove them.

Arrests for a breach of the peace can be life-changing. It matters that the police get them right.

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

 

What Happened at a Private Dinner Hosted by Liverpool Law Society

Photo of Kevin Donoghue, a solicitor and member of Liverpool Law Society.
Kevin Donoghue, solicitor.

By Kevin Donoghue, solicitor

On Wednesday evening I attended a private Dinner for Managing Partners in Liverpool. Liverpool Law Society President, John Ballam, and his fellow officers, hosted the event. Attendees included representatives from solicitors’ firms of all sizes. Bankers, consultants, and others who support the legal profession also came along. As well as an excellent dinner, this is what we got out of it.

Why I went to the dinner

I wear many hats in my role as Director of Donoghue Solicitors. I am lucky to get to:
  • Represent clients and supervise my colleagues in their roles.
  • Be responsible for the growth and management of my firm, and promote it through networking, media, and other ways where possible.
  • Help and support the legal profession and wider society.
The day-to-day duties that come with practising law, and running my practice, are a full-time job in themselves. So, I find time out-of-hours and at weekends for other things, such as Wednesday’s dinner.
I am not alone.
At my table I talked with Alison Lobb, the former President of Liverpool Law Society. She worked hard during her year as President by attending many events nationwide in an official capacity. I suspect she has some good tips on juggling commitments for Nina Ferris, next year’s President.

Purpose of Meeting

One of the reasons for the dinner was to talk about Liverpool Law Society broadly. The Society has over 2,200 members in practice, and is one of the largest local Law Societies in England and Wales.
 
The legal environment is changing quickly. We discussed things like:
  • What is Liverpool Law Society there for?
  • What more can it do to help members?
  • How can it stay relevant?
One area we focused on was training. 

Training Challenge

Everyone agreed that the legal training offered by Liverpool Law Society is excellent. Its pull means that leading experts in every field come to Liverpool to train members. These include Kerry Underwood, Helen Swaffield, and Dominic Regan.
 
But recently there has been a big change which affects training providers like Liverpool Law Society. Solicitors have moved from a points-based system of Continuing Professional Development to the new “Competency Standard”. This means that lawyers have more flexibility in how they keep up-to-date with the law and enhance their knowledge. The challenge for training providers is how to keep members coming to courses, conferences etc.. Everyone had comments and ideas.

What Next for Liverpool Law Society?

 
The dinner ran late into the evening. It was well worth it. The Society’s officers heard plenty of ideas which they will take to the General Committee. I was encouraged by the enthusiasm and creativity expressed by the group. Because the attendees were both business-owners and lawyers everyone had valuable input. The Society was formed 190 years ago. With the help of events like Wednesday’s dinner, it will see many more.
 
Kevin Donoghue is the Solicitor Director of Donoghue Solicitors. Contact him here.

A Solicitor’s Calling

Photo of Kevin Donoghue, a solicitor who discusses his calling here.
Kevin Donoghue discusses a solicitor’s calling here.

By Kevin Donoghue, solicitor

It’s said that practising law is a “calling”. But what does that mean, and how do solicitors fulfil it? Collins Dictionary defines a calling as:

 a profession or career which someone is strongly attracted to, especially one which involves helping other people.

This is a useful definition because it shows the relationship between the calling’s:

  1. Attraction to the individual
  2. Benefit to society.

There are 181,982 solicitors on the roll. Nearly 140,000 are practising. Many more have retired or left the profession. If you asked them why they were called to practise law you would get a different answer from everyone. But the common themes above would come up.

Professional principles

As solicitors, we promise to fearlessly represent our clients and uphold the rule of law. Our regulator, the Solicitors Regulation Authority, includes this in the profession’s Principles:

SRA Principles

These are mandatory Principles which apply to all.

You must:

  1. uphold the rule of law and the proper administration of justice;
  2. act with integrity;
  3. not allow your independence to be compromised;
  4. act in the best interests of each client;
  5. provide a proper standard of service to your clients;
  6. behave in a way that maintains the trust the public places in you and in the provision of legal services;
  7. comply with your legal and regulatory obligations and deal with your regulators and ombudsmen in an open, timely and co-operative manner;
  8. 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;
  9. run your business or carry out your role in the business in a way that encourages equality of opportunity and respect for diversity; and
  10. protect client money and assets.

The SRA says that the Principles:

embody the key ethical requirements on firms and individuals who are involved in the provision of legal services.

Think about the Principles in the context of a “calling”. Do they meet the two-part relationship I mentioned above? The SRA’s emphasis is on the benefit to society. Clients, and the wider public, come first. The attraction to the individual solicitor isn’t mentioned. So, should we define the legal profession as a “calling”?

Calling to practise law

Working in the law is the only job I ever wanted to do. I joined a law firm straight from school. While there I studied, and passed, my CILEx exams, becoming a chartered legal executive. I continued my training and qualified as a solicitor 10 years ago this week. Nearly seven years ago I set up my firm. We have thrived in a competitive market by fighting hard for our clients to get the justice they deserve.

This explains the continuing attraction of the legal profession to me. Practising law isn’t just a job. It’s personal. Looking back on my career in the law, I take immense pride in the progress my team and I have made. More than anything I love helping our clients win their cases. My colleagues at Donoghue Solicitors share this passion. Helping them do their job and meet their career ambitions is hugely rewarding.

This draw, coupled with the benefit to our clients and my team, makes the law a true calling to me.

How can solicitors fulfil their calling?

As well as the direct benefit to our clients, solicitors like me also help society broadly. We do this in three ways:

1. Upholding the rule of law

I help people who have suffered through no fault of their own. Some, like Paul Smith, were victims of police brutality. Others, like Nigel Lang, experienced life-changing consequences after police failures.

What matters to them, and me, is justice. It’s important that my clients

  • Hold the police to account
  • Are heard
  • Win compensation for their losses.

Helping innocent victims achieve justice helps society too. In a civil society, upholding the rule of law is essential. Without it there would be anarchy. Succeeding in claims for civil wrongs, especially against powerful and well-resourced defendants such as the police and insurers, shows that justice through the legal system is accessible and can be achieved.

2. Publicity

Another way we help is when clients agree to publicity. This is their way of keeping the social contract. By publicising their cases, clients hope to

  1. Raise awareness
  2. Try to make sure that no one else suffers like they did.

I help with this at no cost to my clients. For example:

  • James Parry is a solicitor. He won £9,000 compensation from Merseyside Police. He wanted to get the word out that he had been wrongfully arrested. I prepared a press release and contacted his local newspaper, the Liverpool Echo. I also contacted the Law Society Gazette, the trade magazine for solicitors. With my help they reported on the case. The publicity helped restore the reputation of both Mr Parry and the legal profession. It also brought attention to the issue of false arrests at voluntary interviews.
  • Nigel Lang won £60,000 compensation for false imprisonment and other losses. He had been wrongfully arrested on suspicion of possessing indecent images of children. I arranged for Buzzfeed News to work on a detailed story with him. The publicity from that story led to a BBC tv appearance which raised awareness of the consequences of the police’s failures. Nigel also got an assurance from the police that they had changed their practices to prevent it happening to anyone else.

    3. Activism

I am on the front-lines as a practising solicitor. I see the

  • Devastating impact legal aid cuts have had on people seeking justice. (This is one reason why we represent people under “no win no fee” agreements where appropriate. Most people are not eligible for legal aid in civil compensation claims, including actions against the police.)
  • Courts service stretched to breaking point, despite innocent claimants paying up to £10,000 in court fees to bring compensation claims.
  • Impact of lobbying by special interests, especially police federations which have pushed for the roll-out of (potentially deadly) spit hoods. (This is despite criticism from The Hepatitis C Trust, which said that hepatitis C and HIV cannot be transmitted by spitting. To suggest otherwise is “hugely damaging” and “Such falsehoods also cause unnecessary alarm to police staff,” the Trust said.)

My calling as a solicitor means standing up for the “little guy”. This means devoting time to activism. Among other things, I

  1. Use my firm’s blog to raise issues that concern me, my clients, and the public.
  2. Appear on tv and radio to argue for our rights.
  3. Help journalists write about police misconduct and other issues.
  4. Meet and write to politicians to influence legislation.

Appeal

I urge my colleagues in the legal profession to join me in fulfilling our calling in these ways. It’s hard, and takes time and effort. But it’s important and rewarding work.

 

Kevin Donoghue is the Solicitor Director of Donoghue Solicitors. Contact him here.

 

Why Facial Recognition Technology is Another Home Office Failure

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

By Kevin Donoghue, solicitor

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

Facial Recognition Technology used at Notting Hill Carnival

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

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

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

Why does biometric data matter?

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

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

Inconsistency

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

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

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

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

He continued:

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

The government disagreed.

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

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

Further Legal Issues

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

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

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

Parliament

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

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

It can’t be right that:

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

Police Ethics

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

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

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

“Big Brother” Expansion

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

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

(my emphasis)

Another Home Office Failure

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

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

 

Read more from Kevin Donoghue on the Donoghue Solicitors blog.

 

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

Photo of Kevin Donoghue, who asks why CAST is ignoring spit hoods.
Kevin Donoghue asks why the Government’s CAST department is ignoring spit hoods.

CAUTION: THIS BLOG POST CONTAINS COARSE LANGUAGE

By Kevin Donoghue, solicitor

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

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

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

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

And

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

Spit Hoods Agreement

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

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

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

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

And later:

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

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

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

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

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

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

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

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

and many more.

Spit Hood Roll-Out

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

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

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

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

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

 “Spit Guard” Abuse

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

Paul Smith           I am on fucking fire

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

Paul Smith          I need water

PC S                   We don’t have water

Paul Smith          I need water. I need water man

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

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

Paul Smith          I am choking

PC C                   You’re not choking

Paul Smith          Seriously take it [the spit hood] off

PC C                   You can’t have it off your face

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

Spit Hood Consequences

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

As I explained to the BBC Radio Leeds listeners,

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

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

Police Federation Campaigns

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

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

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

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

I strongly disagree with this characterisation on two counts:

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

Call for Action

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

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

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

 

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

 

Why We All Benefit When People Bring Claims Against the Police

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

By Kevin Donoghue, Solicitor Director of Donoghue Solicitors

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

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

Effects When People Bring Claims Against the Police

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

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

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

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

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

TV appearance

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

 

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

Spit Hood Dangers

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

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

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

Public Vindication in Civil Courts

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

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

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

Police Confusion

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

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

(my emphasis)

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

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

Civil Court Judgment

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

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

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

Justice Done

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

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

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

Why I Agree with the Police Federation About Compensation Claims

Photo of Kevin Donoghue solicitor, who considers the Police Federation position on compensation claims in this blog post.
Solicitor Kevin Donoghue explains why he agrees with the Police Federation about compensation claims.

By Kevin Donoghue, solicitor

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

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

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

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

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

Police Federation Defence

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

“aren’t flippantly made”.

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

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

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

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

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

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

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

 

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

This is Why People Sue the Police

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

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

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

Why?

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

Why People Sue the Police

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

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

Fight for Justice

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

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

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

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

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

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

Police Complaint

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

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

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

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

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

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

Resignation

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

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

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

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

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

(my emphasis)

Civil Compensation Claim

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

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

 

Contact Kevin Donoghue for help to sue the police here.

 

Are police sexual exploitation cases being brushed under the carpet?

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

By Kevin Donoghue, solicitor

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

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

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

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

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

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

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

Why are these things happening?

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

Police Sexual Exploitation by Phone

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

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

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

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

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

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

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

Police Corruption Investigation

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

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

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

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

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

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

And yet, despite

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

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

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

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

Failure to Refer Police Sex Abuse to the IPCC

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

Public Confidence in Police Sexual Exploitation Investigations

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

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

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