We recently became part of this exclusive club. This is why.
What is the Cyber Essentials Scheme?
The UK government set up Cyber Essentials through the National Cyber Security Centre. (This is a division of Government Communications Headquarters (GCHQ).)
Cyber Essentials is a “world-leading” cyber security assurance scheme. It aims to help organisations adopt good practice on information security and protect against cyber-attacks.
Why Did Donoghue Solicitors Get Cyber Essentials Accredited?
Getting a Cyber Essentials certificate was a natural progression for us. We take our clients data security seriously. As I explained here, this commitment includes how you use our website. You might have noticed that it is secure (https instead of basic http) and uses Extended Validation (EV). We use industry-leading 256-bit encryption keys and EV, so you can tell that we own the site. You can trust it by checking at the top of your internet browser for
Most law firms have not taken these steps to protect their websites’ users. Time and money are involved. But your confidence and online protection are worth it to us.
Cyber Essentials accreditation proves that our commitment to your online security extends to other areas. It shows that we have implemented technical controls to address essential cyber risks.
What is the Certification Process?
Organisations must apply security and technical controls in five areas to get certified. These are:
Boundary Firewalls and Internet Gateways
To prove that we applied them, we
reviewed our entire IT system with a focus on cyber-based threats.
prepared policy documents and made sure they met the scheme requirements.
put the policies in action, adopting the latest technology where necessary.
Only then could we apply for certification. This involved completing a questionnaire and providing documents in support. An external certifying body appointed by the government vetted our submission. We passed the certification process at the first attempt.
I understand that we are now one of fewer than 2% of law firms nationwide with Cyber Essentials accreditation. This exhaustive process took time, money, and staff resources. I am proud of the work we did to earn accreditation. But the certificate is just the beginning. Cyber risks are changing. Attacks get more sophisticated every day. We will do everything we can to protect our clients’ data. You can have the highest level of confidence when sharing sensitive and personal information with us.
Contact Donoghue Solicitors for legal help using our online form or call 08000 124 246.
I was never going to win a popularity award at the conference. Some of the delegates might consider me “the enemy” because I am a solicitor who represents victims of police misconduct in their civil actions against the police. I was not paid for being there. I travelled down to Leicestershire the night before to make sure I could attend. I missed a day’s work, coaching my under-9s football team, and time away from my young family. So why did I go?
Police Federation Conference Panel
Che Donald, the outgoing Vice-Chair of the Police Federation of England and Wales (PFEW), invited me to appear at the conference. He contacted me because Sgt Donald and I have sparred in the media over the police’s use of spit hoods. (He’s supportive of their use. I’m concerned by their unchecked roll-out, as you can tell from my earlier blog posts.)
This PFEW conference focused on post-incident procedures. These are the rules the police must follow after a death or serious injury. I joined a panel discussing police restraint procedures. Members included:
Dr Meng Aw-Yong, a Forensic Medical Examiner and President of the British Academy of Forensic Science
Catherine Hall, Operations Manager for the Independent Office for Police Misconduct
Colin Banham, a barrister who represents police officers in gross misconduct hearings
As you can tell, the panel leaned heavily in favour of the police. I was outnumbered. Despite this, I was treated respectfully and well during the hour-long discussion. It was unscripted, save for questions from the moderator, Phil Matthews.
Police Restraint Panel Discussion
The audience asked probing questions and brought out some useful points about restraint. These included:
The potential benefits of a “fit bit” type device which was unveiled at the conference. The wearable device is designed to track a detainee’s vital signs and reduce the risk of death in custody. On first impressions, the benefits to detainees, police officers, the IOPC, and wider communities appear clear.
A controversial suggestion that police officers use Tasers more readily on some people to prevent further harm. (For example, those suffering from a mental health crisis.) I disagreed with this idea. I am used to dealing with victims of Taser assaults who suffer serious physical and psychological injuries. Police often use Tasers with other forms of restraint, such as spit hoods. This makes matters worse. I commented that injuries could be avoided if the police used proper de-escalation techniques and involved medical professionals first. The Taser “stun-gun” is a potentially lethal weapon. Police should only use it as a last resort.
An audience-members’ view that the police were treated as a “cash cow”. He questioned why the police get sued when others, such as the ambulance service, do not. I explained that his perception was incorrect. In practice, solicitors involved in these cases hold all appropriate organisations to account. No one is above the law, and laws are there to be followed.
The issue of police training. The panel agreed that budget cuts could impact on the amount and quality of training. This could result in serious injuries and even deaths in custody. But more, and better, training is only one side of the equation. I stressed that, even with the best training in the world, it is down to the individual officer to apply that training properly.
I asked the police officers present to remember that the detainee is a person first and a suspect second. With that mindset, they would be more likely to take appropriate action. This benefits the detainee and the police.
All too often we exist in our own bubbles. The panel debate meant that the Police Federation audience heard all sides about current police restraint issues. My input helped the police understand the perspective of misconduct victims and their solicitors. And I got to hear their views, which will benefit me and my clients. I stand up for police misconduct victims in my role as a solicitor. I am glad I went to the conference to speak on their behalf.
Recent media reports about police Tasers highlight two issues faced by the public and police alike. The first is the use of force. The second issue is accountability. Both threaten:
1. public confidence in the police
2. the doctrine of “policing by consent”, described by the Home Office as “the power of the police coming from the common consent of the public, as opposed to the power of the state.”
Issue 1: Taser Use of Force
The police say that Tasers are “a low level of force”, as Chief Superintendent Paul Morrison once claimed. But as I previously wrote, this minimises the effect of these weapons. Taser assault victims suffer both primary and secondary injuries when the weapons are used. PoliceTasers work by shooting two 11.5mm metal barbs on coiled conductive wires. The barbs attach to the victim before the Taser sends a 50,000 volt electrical charge through them. This initial assault, which can be repeated, causes puncture and burn wounds, temporary paralysis, and short-term cognitive impairment akin to dementia.
It is common for victims to suffer secondary injuries following the initial assault. For example, Richard Haganwas Tasered by Merseyside Police. As expected, the stun gun temporarily paralysed him, causing him to fall flat on his face. Mr Hagan lost four front teeth and had to have a bridge and crown fitted. Last week a 17-year old boy suffered a heart attack after being Tasered by police in Coventry. The teenager needed CPR after the police assault and “remains in a serious but stable condition”. And in the most serious cases, police Tasers can kill, as the tragic case of footballer Dalian Atkinson and many others show.
Police Federation Taser Campaign
Despite these concerns some in the police want more Tasers in the hands of front-line officers. The police officer’s union, the Police Federation, has been campaigning for Tasers for years. In January 2015 Steve White, then chair of the Federation, said that ALL police officers should be armed with Tasers. The next month the Police Federation voted for Tasers for all uniformed officers “to provide protection from terrorists”. This was despite Chris Sims, chief of West Midlands police, saying that step was “not proportionate to the threat” and risked “undermining the British policing model”. This moderating view didn’t stop the Police Federation campaign though. In January 2017 it published the results of its own survey, stating that 82% of the 6,220 officers who responded supported issuing Tasers to “a wider group of front-line officers”.
As with the roll out of (sometimes deadly) spit hoods, the Police Federation appears to be getting its way, despite reasonable concerns and an apparent lack of interest from its members (only 5% of federated members responded to the Taser survey). In January 2018 Hampshire Police confirmed that it would double its number of Taser-trained staff to 620. This was quickly followed in February when Thames Valley Police announced plans to increase its total number of Taser-trained officers to 390, a 50% increase.
But it stands to reason that more police officers armed with Tasers = more Taser use. More use = more injuries, more deaths, more miscarriages of justice. This represents a serious threat to public confidence and support, at a time when officer numbers are declining due to budget cuts. The Police Federation might want to reconsider its approach.
Issue 2: Accountability for Officers Using Police Tasers
The police are bound by a written Code of Ethics. It addresses the use of force, such as when an officer uses a Taser, saying:
4. Use of force
I will only use force as part of my role and responsibilities, and only to the extent that it is necessary, proportionate and reasonable in all the circumstances.
Police officers can be disciplined, and even dismissed, if they fail to meet that standard. But how does it work in practice with Taser incidents? Consider the case of PC Claire Boddie. In January 2017 she Tasered Judah Adunbi. (Watch the footage here.) The case was referred to the Crown Prosecution Service. The CPS prosecuted the officer for assault, but in May 2018 she was found not guilty on the criminal standard (beyond reasonable doubt). The judge said that the prosecution had “failed to persuade” him that PC Claire Boddie “didn’t act in self-defence”. That ended the criminal proceedings. But PC Boddie was referred to a disciplinary panel on a charge of gross misconduct, which is “a breach of the Standards of Professional Behaviour which is so serious that dismissal would be justified.”
Police Tasers raise many practical and ethical issues. Used properly, the stun-guns can be helpful crime-fighting tools. Get it wrong and people suffer serious injuries and even death. Improper use has serious implications for victims, the police, and the public.
For public confidence in Taser-wielding police to be maintained we need to know that the police will abide by their Code of Ethics, especially their obligations when using force, and follow the principle of policing by consent. This must be backed by a robust and transparent police misconduct disciplinary regime to hold the police to account. We deserve nothing less.
On Wednesday 18 July, Mr Justice Mann, sitting in the High Court in London, awarded Sir Cliff Richard £210,000 compensation from the BBC in respect of his successful damages claim. (Official judgment here. )This is in addition to a previously agreed settlement of £400,000 with South Yorkshire Police, whom Sir Cliff also sued. There will be more compensation paid to once the full extent of “special damages”, or quantifiable losses, are known. South Yorkshire Police and the BBC will also pay legal costs, estimated in the millions. The BBC says it will appeal the decision.
Compensation awarded in this case is substantially more than the usual awards for civil actions against the police and breaches of the Human Rights Act. Why?
In July 2014 a BBC journalist learned that South Yorkshire Police was investigating Sir Cliff for alleged sexual offences involving a minor. The police obtained a warrant to search his home in Sunningdale, Berkshire, which was broadcast live on BBC tv. (Sir Cliff was in Portugal at the time.)
The police investigated the allegations against the singer, who was 73 at the time of the raid and still working as an entertainer. Eventually, in June 2016, Sir Cliff was told that he would not face charges.
He sued both the BBC and South Yorkshire Police for breach of privacy and under the Data Protection Act 1998.
In May 2017 South Yorkshire Police settled Sir Cliff’s civil claim for £400,000 plus costs, apologised, and gave a statement in open court accepting liability.
The BBC fought the claim, resulting in a trial on both liability (responsibility) and quantum (amount of damages).
Sir Cliff (the Claimant) claimed a breach of his fundamental right to privacy and breach of the Data Protection Act. The BBC (the Defendant) fought the claim arguing that it had fundamental rights to freedom of expression and freedom of the press.
Mr Justice Mann put aside the Data Protection Act breach saying it “adds nothing to the privacy claim”.
Instead he considered Sir Cliff’s rights under Article 8 of the European Convention on Human Rights (ECHR), which in English law is found in the Human Rights Act 1998. Article 8 states:
1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.
The BBC argued that it had competing rights under Article 10 ECHR, which states:
1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers…
2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.
Here the Judge’s job was to weigh the two competing rights. Finding for Sir Cliff Richard he said that the BBC:
“infringed these (Article 8) rights without a legal justification. It did so in a serious and also somewhat sensationalist way.”
Quantum, or the value of damages to be paid in the claim, is considered separately after liability has been established. The purpose of damages is to put the Claimant in the pre-incident position so far as possible. It is impossible for a Court to accurately value general damages and nothing can give a Claimant their lives back. An appropriate amount of financial compensation is ordered to be paid by the losing Defendant instead. The Court considered both “general damages” and “special damages”.
Aspects of general damages vary depending on the circumstances. Sir Cliff Richard’s case included elements found in personal injury and defamation cases. Mr Justice Mann considered the following heads of claim:
(a) Damages can and should be awarded for distress, damage to health, invasion of Sir Cliff’s privacy (or depriving him of the right to control the use of his private information), and damage to his dignity, status and reputation…
(b) The general adverse effect on his lifestyle (which will be a function of the matters in (a)).
(c) The nature and content of the private information revealed. The more private and significant the information, the greater the effect on the subject will be (or will be likely to be). In this case it was extremely serious. It was not merely the fact that an allegation had been made. The fact that the police were investigating and even conducting a search gave significant emphasis to the underlying fact of that an allegation had been made.
(d) The scope of the publication. The wider the publication, the greater the likely invasion and the greater the effect on the individual.
(e) The presentation of the publication. Sensationalist treatment might have a greater effect, and amount to a more serious invasion, than a more measured publication.
Special damages are quantifiable losses. Each item must be proved by the Claimant.
Valuing Sir Cliff Richard’s Compensation Claim
Sir Cliff’s public profile meant that the raid on his home quickly became a massive story. Millions followed it in the news world-wide. He gave evidence in Court about its terrible personal toll. Mr Justice Mann noted that:
Sir Cliff felt trapped in his own home, and he felt despair and hopelessness leading, at times, to physical collapse. At first he did not see how he could face his friends and family, or even his future. He felt the whole world would be talking about whether he had committed the alleged offences or not. Sleeping was difficult; he resorted to sleeping pills.
The impression that he had was that his life’s work was being torn apart. The adverse publicity removed his status as a confident and respected artist and what he described as “a good ambassador for this country”. He felt and still feels tainted. His health suffered, and he contracted shingles, which he put down to stress. Although there was no medical evidence as to that causation I accept that throughout the entire period he was the subject of severe stress, and that that stress far exceeded the anxiety, and perhaps some level of stress, that he would inevitably have been under from the investigation by itself had the news of it not been publicised.
In addition to the physical toll, the Judge considered the damage to Sir Cliff’s reputation. After that he assessed General Damages at £190,000, noting that he had no direct comparison in existing case law. The Judge’s candid comment is worth noting: every case is different, and it is part of his job to make assessments like this.
In some cases, the conduct of the Defendant is considered worthy of additional sanction, so that aggravated and, very exceptionally, exemplary damages can be awarded on top of the basic general damages award. Mr Justice Mann considered whether the BBC should pay an additional amount for injury to Sir Cliff’s feelings. In support of this claim, the Claimant alleged the BBC caused suffering due to:
a flagrant disregard for his privacy and failure to give him adequate notice of the broadcast, so depriving him of the opportunity to seek an injunction to prevent the broadcast
a failure to acknowledge wrongdoing or apologise
the Corporation submitting the broadcast to the Royal Television Society awards in the category “Scoop of the Year”
its conduct in litigation
The Judge considered each allegation in turn. He considered that the failure to give notice (in point 1) had merit but included that within the existing £190,000 award for general damages.
He dismissed the other points except point 3. The Judge said that the BBC caused additional distress in submitting the broadcast for the award, which it did not win. He awarded Sir Cliff an additional £20,000 by way of aggravated damages.
After this exercise the Judge considered if the overall amount for general and special damages was appropriate. He said:
That gives a total of general and aggravated damages of £210,000. I need to stand back and reflect on whether, overall, that is an appropriate figure to award. Having performed that exercise I am satisfied that it is. It is a large figure, but this was a very serious invasion of privacy rights, which had a very adverse effect on an individual with a high public profile and which was aggravated in the manner to which I have referred.
The Claimant’s quantifiable losses included professional fees due to his solicitors, PR firm, and others. He also claimed to suffer financially due to the loss of opportunity to publish a revised biography.
The Judge was not asked to rule on specific amounts. Instead, to help the parties reach agreement or guide future hearings, he considered whether “causation” was established by the Claimant in respect of the various things Sir Cliff claimed.
Asking the question, “did the breach cause the alleged loss?” he considered the heads of Sir Cliff’s special damages claim in turn, mostly approving them.
(NB It is likely that special damages were also included within the agreed compensation paid by South Yorkshire Police.)
Damages are not a windfall
As Sir Cliff Richard’s case shows, the compensation has been either agreed as fair between the parties, or court ordered after careful examination. In this respect Sir Cliff’s case is identical to every civil compensation award of damages. Money paid is not a “windfall”, “jackpot”, or other disparaging terms. As Mr Justice Mann said:
A claimant is entitled to proper compensatory damages and the figure I have specified is a proper figure for that purpose.
Why Celebrities are Different
Where Sir Cliff’s case differs is in the unusual size of the award for damage to his reputation. Most claimants suffer damage to their reputations in wrongly publicised matters involving the police but they don’t get awarded nearly as much compensation.
Consider my client RL’s story, which has many similarities to Sir Cliff’s case. RL was a working man with no criminal convictions. Essex police raided his flat in error looking for drugs. Both RL and his girlfriend were held in their home for over an hour while the police conducted a full search and established their innocence.
The media were tipped off about the raid, just like in Sir Cliff’s case. Local newspaper staff filmed and photographed the raid and later reported it. The paper described “Arrests after police bust for suspected drug dens”, identified the location in the front page headline “30 police storm homes in Rifle Hill drugs blitz”, and showed a blurred out photograph of a man being led away next to a caption reading “A suspected drug dealer is led away (left) following raids by police in Rifle Hill, Braintree.”
Although Mr L was not identified in publicity, his flat number was clearly visible in one image. The reader would be under the impression that my client was the man being led away.
To make matters worse, the police gave a statement which sought to justify the raid, saying that they went in to my client’s home because “information was brought to our attention about the possibility of drug use”.
Compensation for Damage to Reputation
While there are similarities to Sir Cliff’s case, RL’s case was never going to justify such an award. The damage to his reputation was not as significant as Sir Cliff’s. RL is not a world-famous celebrity. He was not personally identified in media coverage. The allegations were not as offensive to society. And yet the implication that my client was somehow involved in criminal activity still impugned his reputation. He suffered due to the police’s misconduct and was rightly compensated for it. His award was £4,000, which was an excellent settlement in the circumstances, and far more than the £1,500 Essex Police initially offered.
There can be no doubt that Sir Cliff’s high public profile played a part in the size of his award. The nature of the allegations, the “sensationalist” publicity, and his unusually high losses, were all factors. Celebrities may say they’re just like you and me, but in some ways that’s just not true.
I recently settled a claim against Avon & Somerset Police for Steven Smith. Mr Smith (details used with his kind permission) was assaulted by PC F, a police officer in Bristol. The police officer received a criminal conviction for “assault by beating”. Recently we found out that the officer was still serving. Should he be?
Briefly, two female police officers, PC P and PC S, escorted Mr Smith out of a pub and ordered him to leave Bristol town centre. A third (male) officer, PC F, joined them outside. Steven refused to leave, and PC P told him he was under arrest. While PC P and PC S were attempting to handcuff Mr Smith, PC F grabbed Steven around the neck from behind using his right arm. A witness described it as a “choke hold where the person’s neck is within the V bend section of the arm”.
Choke holds restrict blood and/ or air flow to the brain. They can cause serious injury and even death. For this reason, they are banned by many police forces. PC F kept Steven Smith in a choke hold for about 15 seconds. During this time Steven momentarily lost consciousness and his legs buckled beneath him. The officers helped him to his feet and drove Mr Smith to a nearby police station to be processed.
At the station the female officers reported their concerns about PC F’s conduct to a custody sergeant. Following an investigation, PC F was prosecuted for the criminal offence of assault by beating.
Two courts found him guilty:
Bath Magistrates’ Court convicted him for assaulting Steven Smith. The officer was fined £100, and ordered to pay a £20 victim surcharge, and £220 costs.
PC F appealed to Bristol Crown Court, where the Court upheld his criminal conviction. The Crown Court judge said that “the force for that 15 second period was disproportionate in all the circumstances and therefore unreasonable.”
My client (it turns out wrongly) thought that the criminal conviction meant that PC F would also be dismissed from the police.
His view was not unreasonable. After all, the police are meant to uphold the law, not break it. And, for a “bobby on the beat”, a conviction for assaulting a member of the public in the course of his employment has added significance. Police officers like PC F routinely use force to arrest people. The burden on them to make sure arrests are effected lawfully, safely, and using appropriate techniques, is high.
Failing to do so can render their conduct unlawful. As Mr Smith’s case shows, this can result in criminal convictions, costly criminal and civil penalties, and reputational damage for the officer and their Police Force. PC F now has a criminal record and was ordered to pay £340 by the Magistrates. His criminal misconduct cost the public too. The taxpayer-funded Avon & Somerset Police rightly paid £4,500 plus legal costs to Mr Smith by way of compensation because it was responsible for the unlawful acts of its officer.
And yet PC F still serves in Avon & Somerset Police.
Mr Smith does not know if, or how, Avon & Somerset Police’s internal misconduct proceedings were concluded. (Steven was not a party to them, so was not told.) But PC F continues to serve in Avon & Somerset Police despite his criminal conviction.
‘unacceptable or improper behaviour and for police officers will involve a breach of the Standards of Professional Behaviour set out in Schedule 2 to the Conduct Regulations.’
Gross misconduct, which can result in dismissal from the police, is
‘a breach of the Standards of Professional Behaviour which is so serious that dismissal would be justified.’
Interestingly, the primary purpose of police misconduct proceedings is not to punish police officers. Instead, they are meant to maintain public confidence. In R (Green) v Police Complaints Authority, Lord Carswell said:
‘Public confidence in the police is a factor of great importance in the maintenance of law and order in the manner which we regard as appropriate in our polity. If citizens feel that improper behaviour on the part of police officers is left unchecked and they are not held accountable for it in a suitable manner, that confidence will be eroded.’
In PC F’s case, it is likely that the panel tasked with considering his misconduct would have looked at the seriousness of the misconduct, the purpose of imposing sanctions, and then chosen an appropriate sanction, if any.
The panel would have looked at the officer’s responsibility for the misconduct, the harm caused, and the existence of aggravating or mitigating factors.
The criminal proceedings will have helped because two criminal courts found that PC F was responsible for assault by beating on a member of the public. He had no one to blame but himself.
A conviction for assault, which undermines public confidence in policing, would have suggested a more serious sanction, such as dismissal for gross misconduct. Relevant aggravating factors to support this include PC F abusing his powers, using gratuitous violence, and the vulnerability of his victim.
But it is likely that PC F presented arguments in mitigation. The police misconduct panel would probably have been asked to read the comments of the Crown Court judge, who described the assault as “a momentary and isolated mistake”. The judge felt that PC F “would still be an asset to the Avon and Somerset Constabulary” despite upholding the lower court’s criminal conviction for assault.
It appears the disciplinary panel was persuaded, as PC F is still serving in the police.
Impact on Public Confidence
After the incident Mr Smith worried that he would be subject to police retribution. Knowing that PC F is still serving in his town heightens that fear. Steven doesn’t want to come across his assailant again. For the wider public, it may come as a surprise to learn that the police misconduct system is focused on maintaining public confidence rather than punishment. This means that serving police officers can keep their jobs despite criminal convictions. Does that inspire confidence in you?
Two recent reports show how some police officers take advantage of victims of domestic abuse. The stories share common themes and fit with my clients’ experiences. This suggests that the problem is widespread, but that it can be readily identified by motivated police officers and, hopefully, prevented.
Metropolitan Police Sergeant Dismissed for Gross Misconduct
On 11 June the Independent Office for Police Conduct confirmed that Police Sergeant Neil Nash, 38, was sacked from the Metropolitan Police Service. In 2015 Nash was the custody sergeant at Plumstead Police Station when a woman was arrested and cautioned for a domestic incident. He obtained her details and went to the woman’s home on numerous occasions. The woman was known to be vulnerable. Despite this the Police Sergeant kissed and attempted to touch her intimately.
The woman complained about PS Nash’s misconduct. On 7 June, the officer was found guilty of gross misconduct and dismissed. Jonathan Green, the Regional Director of the Independent Office for Police Conduct, said,
“Officers are trusted to uphold professional standards of behaviour especially when they come into contact with people who are at their most vulnerable.
“Instead of providing the service expected of a sergeant, PS Nash abused his position of trust, overstepped clear boundaries, and caused psychological harm to this woman.”
A Chief Inspector of Merseyside Police Faces Police Misconduct Panel
The misconduct panel heard that, on 31 March 2011, the Chief Inspector attended a report of a domestic incident and “fondled a domestic violence victim before ‘snogging her’ and groping her breast”. It is also alleged that he returned to the victim’s home address the next day, “without a legitimate policing purpose”.
His conduct is alleged to be in breach of the Standards of Professional Behaviour in respect of Discreditable Conduct. Sanctions for this can include dismissal for gross misconduct. The officer denies the allegations. The hearing continues.
Unscrupulous police officers can take advantage of vulnerable victims of “domestic incidents”. (These can include victims of domestic violence or domestic abuse).
But, as (former) PS Nash’s case shows, internal police Professional Standards Departments take a dim view of this kind of abuse of position for a sexual purpose. This is because it is a form of serious corruption, 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.”
And the cases described above highlight another pattern which came out in that report: police officers abusing vulnerable victims of domestic abuse.
HMICFRS said that 40% of allegations involved vulnerable victims of crime, and that 39% of accusations of police abuse of position for sexual gain involved victims of domestic abuse.
This shocking statistic may be under-reported. As the 2017 report noted, 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 suggests that some of these predators are still serving, giving them the opportunity to repeat their misconduct.
Common Theme in Domestic Violence Cases
I currently represent, and have previously represented, women across the country who have suffered similar experiences to the two described above. Their stories follow a familiar pattern:
The (female) victim reports a domestic incident. This is usually an incident of domestic violence or a pattern of abuse. She is considered a vulnerable person because of her circumstances.
A (male) police officer attends on his victim at home, strikes up a friendly relationship, and shares contact details.
The officer makes repeated contact, by personal visit, text message, phone calls. These communications become more friendly/ flirty. Often the victim is flattered by the interest from a police officer, someone she holds in high esteem, is attentive, and makes her feel safe.
The police officer makes a sexual advance. In many cases it is unwanted and immediately declined. But, if not immediately rebuffed, he pursues a sexual relationship.
The victim recognises, either immediately or shortly afterwards, that the police officer’s conduct is inappropriate. She reports it and makes a police complaint.
The victim assists the police’s Professional Standards Department with their enquiries by providing evidence, statements, and even evidence at a hearing. This adds to her feelings of stress, guilt, and shame. In some cases, the police abuse leads to long-term psychological damage. It cannot be rationalised or explained away by telling the victim she is not to blame, and that the male officer is the one who abused his position by targeting a vulnerable woman.
While individual circumstances vary, the common theme of a vulnerable victim being abused by a sexual predator is ever-present.
Two out of every five reported incidents of police abuse of position for a sexual purpose involve vulnerable victims of domestic incidents. There may be many more.
Sadly, this is an entirely preventable problem which affects countless victims and undermines public confidence in the police. But this type of serious corruption often follows predictable patterns. Fellow officers and internal police force investigators need to be aware of them to prevent misconduct by the abusers in uniform.
Since writing that piece Donoghue Solicitors has been contacted by people who have been wrongly convicted using false positive drug test evidence. I recently spoke with one such client, John (name changed). We now represent him in his pursuit of justice.
Consequences of a False Positive Drug Test
In December 2016 John was pulled over by the police while driving. During the stop the police told him they wanted to perform a roadside drug test. John agreed as he had nothing to hide. To his shock, the result was positive for cannabis in his system.
Despite his protests, John was arrested for “drug driving” and escorted to a local police station. The police took a blood sample and bailed him, pending the outcome of a forensic drug test.
As required, John returned to the police station in February 2017. He was sure the test results would be negative. But the blood test report, provided by Randox Testing Services, came back with a (false) positive result for cannabis, recording a high rating of 5.5. This was over twice the legal limit.
The police charged John with drug driving. He was bailed to appear at his local magistrates’ court in February 2017. At court John discussed the matter with the duty solicitor. Even though he was sure the Randox Testing Services toxicology report was incorrect, the evidence was backed by science and bound to be accepted by the court.
He pleaded guilty and was convicted for “driving a vehicle when the proportion of a controlled drug exceeded the specified limit”. John got a 12 month ban, and was ordered to pay a £300 fine, victim surcharge, and costs. His local newspaper also published details of the case.
Effects of a Drug Driving Conviction
The conviction had a devastating impact on John’s life. He had no previous convictions and was upset and embarrassed by the stain on his character. The newspaper report meant that his family, friends, and local community knew what had happened. He felt guilty about letting everyone down.
The financial impact of the drug driving conviction was huge. John lost his job as an IT support professional because of it. Before his arrest, John’s well-paid role meant he had responsibility for IT systems in area schools. The job was demanding in terms of work, but also character, as only the most trusted professionals with clean records could do on-site school visits. When his company found out about the positive drug test they stopped him making on-site calls. He relied on his car to get to and from work and other jobs while waiting for his court date. But, after his driving ban, John’s employers felt that they had no alternative but to let him go.
Understandably, all this became too much for John. He felt helpless. He was depressed and frustrated at his circumstances and the loss of independence.
Setting Aside the Conviction
In February 2018, John’s duty solicitors contacted him out of the blue.
They said that the Crown Prosecution Service had been in touch and that John’s original sample of blood had been re-tested returning a result which was below the legal limit.
John’s criminal solicitors applied to the court to re-open the case on the basis that the prosecution relied on unsafe evidence, namely the false positive drug test. The magistrates accepted this argument and the CPS immediately withdrew the charge. This meant that John’s conviction and sentence had been set aside.
But by this time John had completed his 12-month ban and experienced significant personal and professional losses. Understandably, he felt wronged by what had happened. He contacted my firm after seeing that we are solicitors who help people who have suffered miscarriages of justice due to the Randox Testing Services scandal.
We are now working with John to help him get his life back on track. After everything he’s been through, justice and compensation from those responsible is the least he deserves.
Among other charges, PC Hooper is alleged to have stolen a colleague’s biscuits. This led to questions about whether the allegations against him merit a full disciplinary hearing. In the comments section of the Evening Standard piece, one person said:
With all the serious stuff going on in the world is a police officer taking a tin of biscuits and speeding in a police vehicle really worth a police misconduct hearing, surely a severe ticking off by a senior officer would have sufficed.
I suspect many would agree if it was as simple as that. But when we dig deeper it’s clear why this matter went to a disciplinary panel. It is about more than a tin of biscuits. As I understand it, there are three allegations against this Metropolitan Police officer. It is alleged that he:
1. misappropriated property (stole the biscuits) AND
2. sought to abuse his position to have a fixed penalty notice for speeding cancelled AND
3. gave false statements in respect of both allegations.
If proven, the allegations against PC Hooper are serious, and go right to the heart of public trust in the police and the officer’s integrity. They matter because police officers are professionals. This means that they, like solicitors and doctors, are bound by a Code of Ethics, which you can read here. The police’s Code is meant to:
support each member of the policing profession to deliver the highest professional standards in their service to the public.
It is rooted in Sir Robert Peel’s 1829 “principles”. Peel’s principles emphasise the need for the police to “secure and maintain public respect”. They have been updated for modern policing in the 2014 Code of Ethics. It is based on nine policing principles, which are:
You are answerable for your decisions, actions and omissions.
You treat people fairly.
You are truthful and trustworthy.
You always do the right thing.
You lead by good example.
You make choices on evidence and your best professional judgement.
You are open and transparent in your actions and decisions.
You treat everyone with respect.
You act in the public interest.
Applying the Police Code of Ethics
The Code of Ethics applies the policing principles in Standards of Professional Behaviour. The Standards “reflect the expectations that the professional body and the public have of the behaviour of those working in policing.”
In PC Hooper’s case, the most important and relevant Standard is the first one:
1. Honesty and integrity
I will be honest and act with integrity at all times, and will not compromise or abuse my position.
This would cover the first two allegations. The third allegation is also dealt with in a guidance box for the first standard:
Examples of meeting this standard are when you:
• are sincere and truthful
• do not knowingly make false, misleading or inaccurate oral or written statements in any professional context.
The disciplinary panel must decide if PC Hooper failed to meet this Standard, and any other relevant ones, in respect of the allegations made against him.
Sanctions for Breach of the Code of Ethics
If proven, the allegations against PC Hooper would amount to a breach of the Code of Ethics. It would then fall to the disciplinary panel to decide on an appropriate sanction. Options include management advice, written warnings, and dismissal.
But what of the suggestion that this is a storm in a teacup (presumably served without biscuits)? Could the police have dealt with it informally? Again, the police Code of Ethics addresses this at point 5.1.1 by noting that
Different procedures exist according to the type of unprofessional behaviour or misconduct alleged.
Supervisors are expected to use their professional judgment and discretion to proportionately deal with alleged unprofessional behaviour. Where appropriate, they must
act where a concern is raised about any behaviour, level of performance or conduct which may amount to a breach of the Code. (rule 5.1.4)
Actions to address breaches range from a “ticking off” (at the lower end of the scale) to referrals for disciplinary hearings, suspension, dismissal, and criminal proceedings (at the higher end). PC Hooper’s supervisors clearly felt a referral to the Directorate of Professional Standards was appropriate. Is it because, along with the serious allegations we know about, there is even more to this story? The Evening Standard reports Inspector Mark Bullen
said there had been a number of aggravating factors which had led to the misconduct allegations rather than matters being dealt with by way of management advice.
For transparency and to give the panel all relevant information, details of the “aggravating factors” should also come out in the hearing, which continues.
On Monday 8 January 2018 the Independent Office for Police Conduct (IOPC) replaced the Independent Police Complaints Commission (IPCC). The IOPC is now responsible for overseeing the police complaints system in England and Wales.
The government describes the IOPC as “the reformed police watchdog”. Many who dealt with the IPCC agree that change was long overdue. But will it improve the police complaints system?
1. Leadership Structure
The Independent Office for Police Conduct has a new leadership structure compared to the Independent Police Complaints Commission. Dame Anne Owers, Chair of the IPCC and its Commissioners, has been replaced by Michael Lockwood, Director General of the IOPC, and a Board. The new organisation has non-executive directors, and executive team, Regional Directors, and a Director for Wales.
“will ensure clear lines of accountability and a streamlined decision-making process.” The IOPC says this change was necessary because “Since 2013, we have doubled in size and now take on six times as many investigations. This led us to ask the Home Office for structural changes to better suit our much-expanded organisation. These changes were agreed through the Policing and Crime Act 2017.”
Michael Lockwood is an accountant with a background in local government. Neither he, nor the executive team, regional directors, or Director for Wales, have a police background. They say:
“We are independent, and make our decisions entirely independently of the police and government.”
initiate its own investigations without relying on a force to record and refer a particular case for investigation
reopen cases it has closed where there are compelling reasons, such as new evidence
increase the IOPC’s independence from the police by abolishing ‘managed’ and ‘supervised’ investigations
investigate all disciplinary investigations against chief officers
present cases against officers in the police disciplinary process when the force disagrees with the IOPC’s findings.
Government Minister Nick Hurd said the effect of these changes will be to:
“provide powerful scrutiny for policing, with new powers to begin investigations when they are deemed appropriate and be decisive in concluding cases.”
3. User-Friendly Website and Social Media Presence
The new IOPC website (www.policeconduct.gov.uk) replaces the old, and to many, confusing www.ipcc.gov.uk site (this domain name now takes you to the IOPC site). The new site is mobile-friendly and easy to navigate. This is important as many people use their smartphones to get access to the internet. In the same vein, the IOPC has replaced the IPCC on social media. Follow it on twitter @policeconduct. Contact the IOPC’s helpdesk on twitter at @IOPC_Help.
What Stays the Same?
As with the IPCC, the Independent Office for Police Conduct oversees the police complaints system and sets standards by which police deal with complaints in England and Wales. It is not limited to the police though, as the IOPC oversees:
all police forces in England and Wales
the National Crime Agency
Her Majesty’s Revenue and Customs
the parts of the Home Office that carry out border and immigration functions
police and crime commissioners
the Mayor’s Office for Policing and Crime
the Gangmasters and Labour Abuse Authority
British Transport Police
Ministry of Defence Police.
Even though the IOPC’s new powers (mentioned in 2 above) come from the Policing and Crime Act 2017, it has yet to implement most of the changes. This means that, on the IOPC’s inception date (8 January 2018) the old, and much-derided systems, remain in force. For example, the IOPC’s statutory guidance is inherited from the IPCC. The IOPC says that it will update this in summer 2018, and issue advice notes as required. But for now, it is a carbon copy of the IPCC’s police complaints scheme. This means that most complaints are still dealt with internally by police force Professional Standards Departments. This is especially concerning in cases of serious corruption involving senior police officers, as I explained in this blog: Are police sexual exploitation cases being brushed under the carpet?
As the screenshot below shows, a twitter user asked the IOPC when it expects to “be able to initiate inquiries without referral from a force and to determine appeals”. The IOPC said “The Home Office anticipate they will bring these powers in early 2019.”
The Challenge for the Independent Office for Police Conduct
Hailing the IOPC, Minister for Policing and the Fire Service Nick Hurd said:
“We are absolutely determined to make the police complaints and discipline systems simpler and more transparent for the benefit of the public. We want confidence in policing to continue to grow and be underpinned by the vital role the reformed IOPC will play.”
I am disappointed that the publicity surrounding the new watchdog was not backed up with real, actionable, power from day one. It’s important for public confidence in the police service that the government and IOPC move swiftly and decisively to implement the Policing and Crime Act statutory powers. Without them, replacing the IPCC with the IOPC will be little more than a wasteful rebranding exercise.
Recently, a criminal defence solicitor called me about a potential new client. (I regularly receive referrals from criminal lawyers as I specialise in actions against the police.) The solicitor told me her client was caught up in the Randox Testing Services scandal.
I researched the matter. What I found out was shocking.
The solicitor told me that her client had been convicted of drug-driving. The prosecution relied on a forensic toxicology report from Randox Testing Services (RTS).
Randox is a private company which provided forensics tests. It is in the middle of “the biggest forensic science scandal in the UK for decades”. Last month, Nick Hurd, the Minister of State for Policing and the Fire Service, updated Parliament on the ongoing criminal investigation into the company’s activities.
He confirmed that, in January 2017, Randox Testing Services reported to Greater Manchester Police that “there may have been manipulation of test results at their laboratories”. He continued, “The alleged manipulation raises doubts about the reliability of some test results, which may have been subsequently relied on in court proceedings (criminal, coroners and family).”
The Government Minister confirmed that “Most drug tests from RTS between 2013 and 2017 are being treated as potentially unreliable.” More than 10,000 cases have been identified. It is expected to take up to three years to retest the evidence.
The company also gave reports to parties in civil cases such as family law matters to:
– local authorities dealing with child protection decisions
– private employers for drug and alcohol testing.
Another company, Trimega Laboratories, carried out similar forensic tests between 2010-2014. The government considers those “potentially unreliable” too. But it does not know how many people might have been affected by similar, unreliable, reports. This is because of the time elapsed and poor record-keeping.
What Did Randox Do Wrong?
A positive result in a sample showed that the tested drug was present, but
Reports about the amount of drugs in the sample could be inaccurate because the comparison data was manipulated.
A liquid sample is taken from a suspect and analysed for the presence of an illegal substance.
To verify that the testing system is functioning correctly, a Quality Control material with a known amount of the illegal substance is tested in parallel. This ensures that the system is delivering accurate results.
If a sample tested positive then the drug was present to some degree in the sample.
The Quality Control materials are used to ensure that the positive results reported are within an acceptable 20% variance.
If the Quality Control value is not within this variance then the results cannot be used in court.
The analysts were manipulating the Quality Control data and because of this RTS cannot confidently state (before further testing) that the samples tested in runs where the controls were manipulated, fell within this 20% variance.
Regardless of whether the Quality Control fell inside or outside this variance, any positive samples in the run contained the drug.
Neither the Samples, nor the Quality Control materials themselves have been interfered with.
Having discovered this “data manipulation” we immediately reported this to the Forensic Regulator, UKAS and the NPCC and have worked very closely with all authorities to resolve the issue.
Can the Randox Samples Be Retested?
Randox says, the samples taken from those affected were not interfered with by the rogue staff members. This means that they could be re-tested using accurate quality control data. Those involved “are prioritising the most serious and pressing cases but all cases where there could have been an impact on prosecution will be assessed, retested and appropriate action taken.”
But, as the National Police Chiefs Council (NPCC) points out, retesting might not always be possible. 10% of samples are no longer held, cannot be retested or relied upon. The NPCC says that in those cases “a full disclosure pack will be created and passed to the CPS for review and to determine appropriate action.” The difficulty for the CPS will be determining how crucial the forensic test results were in securing convictions or increasing sentences.
The Crown Prosecution Service is seeking adjournments in ongoing cases where it is relying on Randox testing reports.
Why Do These Forensic Tests Matter in Court Proceedings?
Randox Testing Services was a well-respected company which contracted with most of our police forces. A positive toxicology report from it could be crucial in securing convictions. Prosecutors and jurors alike put great faith in the science, especially in serious criminal cases. A desire to see “justice” done can influence the dispassionate analysis of evidence.
Some people who have been convicted in cases involving Randox reports are bringing legal challenges. Two men who were jailed for years after drug-driving convictions are taking action in the Court of Appeal. Both will seek to have their convictions quashed on the basis that the forensic evidence was unreliable.
They are not alone. Billal Hartford has already had his wrongful conviction for drug-driving overturned after the court agreed that Randox Testing Services’ report was inaccurate. And, the BBC reports, around 50 other drug-driving prosecutions have been dropped because the original test results may have been manipulated.
Is Randox Testing Services Liable to Pay Compensation?
Randox Testing Services says that it has “no idea” why its employees manipulated the data. The company describes their behaviour as “incomprehensible and bizarre”, because it took more effort to execute the “data manipulation”. The company says:
“We regret the impact of this, and the subsequent hassle and upset it has caused.”
While this is helpful, it does not necessarily absolve the company of blame. The courts expect a lot of expert witnesses, particularly those providing forensic evidence. This is because of the potential for miscarriages of justice mentioned above.
“But a high degree of responsibility is entrusted to expert witnesses in family cases. Erroneous expert evidence may lead to the gravest miscarriage of justice imaginable – the wrongful removal of children from their families.”
Trimega was ordered to pay legal costs in that case, and again in a later case, due to its inaccurate reporting.
So far, re-tests on samples involved in sexual offence cases, violence or homicide have showed no change.
The retesting process will take years. If Randox’s erroneous reporting directly resulted in wrongful convictions it is possible that claims in negligence could be made. A Claimant must meet three tests to prove negligence:
The tortfeasor (Randox Testing Services) owes the Claimant (wrongfully convicted person) a duty of care
Randox failed in that duty
The Claimant suffered a loss.
Looking at these in turn:
There are strong arguments to show a duty of care, despite there being no direct relationship between the Claimant and Randox. Depending on the circumstances, the effect of the forensic report may have led to a conviction or more serious penalty. As Mr Justice Baker said, the courts hold experts to a high standard. Costs orders are made against them when they fail to live up to those standards. And, in these cases, the Defendant would be the company, not the individual (rogue) scientists.
Producing inaccurate reports, no matter the reason, is a clear failure of the company’s duty. The company may argue that it is not responsible as, it would say, the rogue staff members were acting outside of their duties. There are strong arguments against that view.
A wrongful conviction could lead to compensation for various losses, including:
A claim in negligence could be made against Randox provided all these elements are present. But, as I said earlier, every case is unique, and Randox Testing Services would, no doubt, fight any such claims.
Even if it’s possible to bring a claim, that does not mean it will succeed.
Are the Police Responsible for Randox’s Failings?
It’s possible that the police forces which contracted with Randox are also responsible. This is because of a combination of common law and statutory obligations. Claims could include arguments based on:
The legal principle of vicarious liability.
Breach of the Data Protection Act 1998, in particular, the Schedule 1 Principle requirements that “Personal data shall be accurate and, where necessary, kept up to date” and “Appropriate technical and organisational measures shall be taken against unauthorised or unlawful processing of personal data and against accidental loss or destruction of, or damage to, personal data.”
Breaches of the Human Rights Act (1998). The Act gave effect to the European Convention on Human Rights. Claimants could argue breaches of Articles 5 (liberty and security), 6 (right to a fair trial), 8 (privacy), among others.
I expect that police forces would fight any claims based on flawed Randox Testing evidence. Some forces seem to operate a “fight every claim” policy. There’s no reason to think they would behave differently given the potential scale of miscarriages of justice.
But the police have another problem.
Government Minister Nick Hurd told Parliament that in January 2017 Randox Testing Services reported its concerns about data manipulation to Greater Manchester Police. Randox’s accreditation was pulled on 21 March. I don’t know if the company continued to provide reports before then. It is likely that they did because they contracted with most of the police forces in England and Wales.
So now Chief Constables of the police forces involved might be asked: what did you know, and when?
The CPS says that it will seek adjournments of ongoing cases so samples can be retested. But what about those cases where people were convicted on Randox forensic evidence between January and March 2017? What did the police and/or CPS do when they became aware of the problems at Randox Testing Services?
What About Claims Against Trimega Laboratories?
Trimega Laboratories also provided “potentially unreliable” forensic reports. But the situation at Trimega Laboratories Limited is even more complicated. Timega is in liquidation. Any potential claim would involve restoring it to the Companies register. And, as Nick Hurd pointed out, it may never be possible to identify all those affected by the data manipulation because of poor record-keeping. Even if they could be found, the Minister said:
Samples from Trimega cannot be retested, because of the extremely limited chain of custody records and the natural degradation over time of any remaining original samples.
Sadly, it may be impossible to prove that Trimega Laboratories was responsible for inaccurate reports for one, or both, of these factors.
Am I Out of Time to Claim Against Randox or Trimega?
Trimega produced potentially inaccurate reports as far back as 2010. Randox reports from 2013 are also suspect. This means that it may be too late to bring claims for some/ all heads of claim outlined above without court approval. Read more about time limits in these claims here.
How Can I Claim Against Randox or Trimega?
Do you think Randox or Trimega produced inaccurate forensic evidence in your case? Was that evidence used to secure your conviction (including if you pleaded guilty to an offence)? If so, these are the steps you could take:
Contact the solicitors who dealt with your criminal defence. Ask them to review your file to find out if Randox or Trimega produced a forensic report in your case. Don’t delay! Most of the time, solicitors can destroy files six years after closure. Contact us if you would prefer to use a different criminal defence solicitor. We can put you in touch with someone who specialises in criminal court appeals.
Your criminal solicitors should be able to find out if your sample can be retested. Depending on the circumstances, you may be able to get your conviction set aside.
If you are successful, we can review your case with you and your criminal solicitors. Where appropriate, we can help you claim compensation on a “no win no fee” basis.
A final thought: those in the criminal justice system trusted Randox Testing Services and Trimega Laboratories to provide accurate, incontrovertible evidence. The companies failed in their task, leading to potential miscarriages of justice with devastating consequences. I trust Randox, the government, and police will act with all due haste to identify cases based on unsafe evidence. And I invite those involved to take a sensible approach to paying compensation. The victims of these scandals have suffered enough.