Daniel Fitzsimmons considers the issue of who holds the police’s lawyers accountable.
By Daniel Fitzsimmons, Chartered Legal Executive
I recently wrote a blog post about who polices the police. (TL;DR: it’s brave claimants who seek justice after suffering due to police misconduct.)
Bringing a civil action against the police to court can be daunting. It is not easy, even with the advice and support of expert lawyers like me and my colleagues.
And the odds are stacked in the police’s favour. They have:
- virtually unlimited resources. I’m not exaggerating. The government says funding for all 43 territorial forces in 2021 was over £13 billion. The police are agents of the State and take full advantage of that power by exploiting their financial, political, and other assets
- sympathetic judges guided by public policy and their own desire to avoid “opening the floodgates” to compensation claims against the police
- jurors who might be impressed by police officer witnesses. In the rare civil compensation cases that go to a jury trial, officers attend in full dress uniform and are well-trained in giving evidence. Jurors can be swayed by this presentation compared to an amateur civilian claimant dressed in more casual clothes
- successive governments, none more so than the current Conservative one, who want to look “tough on crime”. Influenced by powerful lobbying organisations like the Police Federation, they make laws which give the police greater powers, such as being classed as “emergency workers” as my colleague Kevin Donoghue explains in his blog post Revealed: How Police Spin Doctors Work.
- a civil justice system which puts the risk squarely on innocent claimants. It does this by depriving most people of legal aid, meaning that they must fund litigation themselves or find a lawyer willing to risk their own fees by taking the case on a “no win no fee” basis. Even then, the risks of suing the police, and often modest rewards, mean that many potential civil actions against the police fail to proceed.
Police forces, and especially their lawyers, are aware of these dynamics. This leads them to act with impunity, as a case I recently settled shows.
Police Investigation Following Patient’s Death
My client “Jane” (name changed) is a professional carer. She is a compassionate and devoted professional.
Jane takes her job seriously and was devastated when a 90-year-old woman died in her care. While it did not come as a shock given the patient’s age, what happened next did.
Unusually, the coroner got involved and the Metropolitan Police investigated.
The police alleged that Jane’s patient developed bedsores. They said that was a contributing cause of death.
The coroner disagreed, but that did not stop the Met’s investigators from digging further. (They clearly had my client in their sights.)
The Metropolitan Police’s investigation led to an (unfounded) criminal allegation that Jane was “cooking” her timesheets to suggest she was working in two or three places at once.
Voluntary Interview at a Police Station
Jane was still upset about her patient when the police called her in for a voluntary interview in February 2017.
She had never been in trouble with the police before and was understandably nervous about things.
So, Jane contacted a local solicitor for help. She met her solicitor at the police station on time. But, on arrival, Jane was immediately arrested, “booked in”, and taken into police custody. The police interviewed her before releasing Jane on bail.
Incredibly, she was under bail and facing the threat of criminal prosecution for 18 months. Eventually the police confirmed that no further action would be taken in respect of both allegations.
Investigating a civil claim against the police
Perhaps unsurprisingly, Jane developed psychiatric symptoms because of the police’s alleged misconduct. As I explained in an earlier blog post about her case, among other things she was afraid, vulnerable, ashamed, humiliated, and lost confidence.
On one of her better days, Jane decided to seek legal help.
She paid a fixed sum to a firm of local solicitors for legal advice about a possible compensation claim.
Unfortunately, they were not experts in civil actions against the police. The firm advised that, in its opinion, Jane did not have reasonable prospects of success.
Disappointed, Jane went online and found Donoghue Solicitors. (She contacted my firm because we have specialist lawyers who offer expert advice in police law cases in England and Wales.)
I spoke with her and immediately felt that there was more to the case than her previous solicitors thought.
This is because I have over 15 years’ experience bringing civil actions against the police and have dealt with similar cases in the past. It appeared to be a strong “necessity” case. (Read why on our False Imprisonment page.)
My reading of the case was this:
- Jane was invited for a voluntary interview, at which she attended with her solicitor on time
- there was no doubt about her identity. The officers knew who she was and where she lived.
- there was no risk of her repeating the alleged offences or destroying evidence. The police clearly thought that they had enough information from their investigations to interview her.
- she was not a flight risk. Jane and her solicitor were not going to leave the station before the interview.
All this meant that there was no need to arrest her under the relevant law (the Serious Organised Crime and Police Act (2005)).
In my opinion, based on her version of events, this lack of necessity to arrest meant that Jane was entitled to bring a false imprisonment claim against the Metropolitan Police.
I agreed to investigate her case on a “no win no fee” basis, as Jane would not have been eligible for legal aid and did not any other way to fund it.
How Police Lawyers Handled the Case
I worked with Jane to get the evidence required to properly consider her case. It confirmed my initial view and her version of events so I prepared a detailed Letter of Claim. Before sending it, Jane and I discussed possible remedies in claims against the police. Jane wanted two things:
- an apology from the Metropolitan Police
- fair financial compensation to reflect the losses she had suffered.
I explained that apologies from the police are rare, but that I would include a request for one in the Letter. To Jane, as with so many of my clients, the apology mattered more.
I sent the letter. Despite the strong merits, the Metropolitan Police and their lawyers refused to accept responsibility in their response.
This meant that Jane had no alternative but to issue expensive, and time-consuming, court proceedings.
In doing so, she had to take a grave personal and financial risk, of the kind police force lawyers never have to consider. This is because the loser in litigation is responsible for most, if not all, of their opponent’s legal fees. The risk of financial ruin in Jane’s case was real and weighed heavily on her.
By contrast, the police’s lawyers had no such concerns. They knew that taxpayers would foot the bill if they lost.
Medical Examinations
All claimants and defendants must follow the Civil Procedure Rules in actions against the police.
Among other things, they set out how to deal with medical evidence where personal injury, which includes psychiatric injuries, is claimed. In most cases, the claimant gets a medical report prepared by an impartial, qualified expert. The doctor’s duty is to the court, not the party paying the bill. Because of this, the defendant usually accepts it, avoiding the need for further evidence on this point.
I arranged for Jane to meet with a qualified psychiatrist. I explained that:
- If the doctor found evidence of psychological personal injury, and
- his report was accepted by the police,
the court would use his report alone to consider how Jane had suffered at the hands of the police.
Following a thorough examination, the doctor produced a supportive medical report which showed that she had suffered a personal injury.
But again, the police’s lawyers pushed back. They refused to accept this independent doctor’s expert finding and used the taxpayers’ deep pockets to pay for a competing medical report from a “defendant-friendly” doctor.
Jane duly attended the medical examination. She told me that the expert was rude, argumentative, and made her undergo lots of unnecessary tests.
By this point, the financial consequences, stress, and delay were becoming overwhelming. The medical appointment with the police’s expert was “the straw that broke the camel’s back”. It traumatised Jane to such an extent that she was admitted to a psychiatric ward after it.
Fundamental Dishonesty Allegation
You’d think that Jane’s hospital admission would make the Metropolitan Police’s lawyers take stock and seek to settle her legitimate compensation claim.
Sadly not.
Instead, they relied on their doctor to continue fighting. He prepared an unfavourable medical report. In it the doctor said there was no evidence Jane had suffered a personal injury. This was a completely different conclusion to the first expert. He went even further and concluded that, as a result of his finding, Jane was exaggerating her symptoms.
The police’s lawyers did not need to accept this opinion. They could, and should, have disregarded it.
Instead, they used their doctor’s finding to argue “Fundamental Dishonesty”. (This is a legal device which defendants use to scare off claimants because it can lead to punitive costs penalties and even allegations of criminal fraud.)
Telling Jane the implications of this argument was painful. She had lived with the threat of criminal proceedings for over 18 months after her patient’s death. This brought it all back. There were many tears, emails, and phone calls as the litigation progressed.
But, as I mentioned in my previous blog post about her, Jane has a strong sense of justice, which she showed when she didn’t let the matter lie after her first lawyers turned the case away.
Jane wanted to proceed all the way to trial if necessary, and I was determined to help her.
Police Settlement Offer
The doctors agreed a joint statement to help the court by narrowing the issues.
The police’s doctor stood by his exaggeration argument. But he showed some semblance of medical credibility by agreeing with Jane’s first medical expert on one point: they both diagnosed her with a new disorder which was not raised previously.
As Jane’s case progressed towards trial the Metropolitan Police’s lawyers finally got real.
They made a “low-ball” offer of £3,500, without admission of liability or apology, on the basis that Jane was at risk of a judge finding her to be fundamentally dishonest at trial.
She rejected it on my advice.
Judge’s Intervention
On her behalf, I represented Jane at a pre-trial review court hearing at the end of July 2021. In preparation, both I and the police’s lawyers submitted a joint statement explaining the issues to be dealt with at trial, if the case could not be settled beforehand.
In my experience, the judge who reviewed the case is supportive of the police, having previously represented them as a practising lawyer.
So, it was a surprise to both lawyers when the judge said he was happy that causation was established. This meant that the police’s actions (wrongfully arresting Jane, keeping her on bail for 18 months etc.) had caused or contributed to her psychiatric and other losses.
He also said that the police doctor had exceeded his brief, saying it was for the trial judge to decide if a claimant was exaggerating, not a medical expert.
This is quite right as a recent case of Marwan Elgamal -v- Westminster City Council 2021 shows. In that case the judge found that the claimant was not fundamentally dishonest because:
“Judges frequently hear from witnesses who have persuaded themselves as to the existence of certain facts, but where the judge takes a very different view. Such witnesses are not, or at least not necessarily, untruthful or dishonest.”
(This court ruling makes the police’s lawyers insistence on pursuing that line of attack even more ridiculous. The bar to prove fundamental dishonesty is high given the serious implications.)
Lastly, a key issue in Jane’s case is that the arresting officer died more than three years ago. This would have made any trial hard for the police because, once a claimant shows that they were detained, it is the defendant police force’s job to prove that detention was lawful.
As we explain here, among other things, the legal test to prove that it was necessary to arrest depends on what was in the mind of the arresting officer.
The police’s lawyers only had a witness statement from their deceased officer, which is not as compelling as a live witness. Their case was much weaker as a result.
Claim Settlement Before Trial
Following the court hearing, the police’s lawyers acknowledged the reality of the situation. They increased their offer from £3,500 to £12,000, without admission of liability or an apology.
Again, I advised Jane to reject it. She agreed and authorised me to continue negotiating. With her approval, I settled her case a couple of weeks before trial.
The Metropolitan Police paid Jane £15,500 compensation and gave her the formal written apology she wanted. She is satisfied that she got the justice she deserved.
And yet Jane has been through the wringer. The police and their lawyers fought her case every step of the way.
As a result, a case which should have been resolved within a year took over four and a half years. It will cost the police significantly more in legal fees, court fees, and other expenses.
Police Lawyers Misconduct Exposed
In my experience the police’s lawyers routinely defend the indefensible. Unlike for claimants, there is no penalty to stop them acting this way.
And it appears that there is little, or no, management oversight into how these cases are handled.
The consequences for taxpayers and innocent members of the public like Jane are clear. The police’s lawyers get to act with impunity, abusing apparently- bottomless resources.
But it should not be the job of victims of police misconduct to hold the police’s legal teams accountable. It’s unfair, and it’s wrong.
Daniel Fitzsimmons is a Chartered Legal Executive. Contact him here.