Kevin Donoghue, Solicitor, explains how police misconduct victims are denied access to justice.
On Tuesday, Baron Thomas, the Lord Chief Justice, felt compelled to state the obvious when talking about Gina Miller, the lead claimant in the “Brexit” hearings before the High Court. (Ms Miller wants the Court to determine if Parliament should have a role in triggering Article 50 of the treaty on the European Union.) Referring to people who disagree with her access to justice in this case, the Lord Chief Justice said:
“Before we start, there is just one observation I would like to make. The court was informed that the principal claimant in this case has been, again, subject to various emails and other communications. We have in this country a civilised way of dealing with things, and it is simply wholly wrong for people to be abusive of those who seek to come to the Queen’s courts. If this conduct continues, those who do it must appreciate that the full vigour of the law will be used to ensure that access to Her Majesty’s courts are freely available to everyone.” (my emphasis)
(Read the original comments in the full day transcript for 17 October here.)
I couldn’t agree more. In my experience as a solicitor who represents people in legal actions against the police I find that they are often subject to abuse and can be denied access to justice too. But unlike Ms Miller, my clients suffer abuse from people in authority, including the police and government. This is how.
1. Abuse by police
In one of my recent cases my client Paul Smith (details used with permission) was wrongfully arrested and physically assaulted by police officers. (Read his story here.) The arresting officer attempted to cover up his misconduct by falsely claiming that Paul was “hostile and aggressive”. The police officer also said that my client ignored warnings that he would be arrested for a Breach of the Peace and that he struggled when arrested, so the police had to use handcuffs, PAVA captor spray, and a spit hood.
Fortunately, two police officers at the scene recorded the incident using body worn cameras. The footage was reviewed by supervisors at the police station and immediately exposed the arresting officer’s lies. Despite the clear-cut nature of the police abuse and misconduct:
- the arresting officer maintained his false version of events, even after Mr Smith was released, providing a statement which directly contradicted both my client and the police’s own body worn camera footage
- both the arresting officer and his employers, Sussex Police, failed to apologise for what the arresting officer’s supervisor described as “extremely unprofessional” behaviour which “brings the police into disrepute”
- after internal misconduct proceedings, the arresting officer was let off with “management action” (the lowest possible sanction) instead of dismissal.
Sussex Police’s conduct at various levels left Mr Smith with no alternative but to seek access to justice through litigation. Paul knew that this could be a risky and stressful process which could result in facing his assailants at trial. The force’s legal team’s handling of the case heightened this anxiety. They delayed matters by providing piecemeal disclosure of evidence and made inadequate offers of settlement. Despite Paul accepting £25,000 compensation, almost five times the original offer, the police’s treatment of this innocent man left a lot to be desired.
2. Victim shaming
Joseph Goebbels, Adolf Hitler’s Propoganda Minister in Nazi Germany, is believed to have said:
If you repeat a lie often enough, people will believe it, and you will even come to believe it yourself.
This remains true today, especially when discussing the non-existent “compensation culture”.
In recent years the government has repeatedly shamed innocent victims to discourage them from bringing cases to court by peddling the myth of a “compensation culture”. For example, in the foreword to Lord Young’s 2010 report, “Common Sense, Common Safety”, then Prime Minister David Cameron said:
A damaging compensation culture has arisen, as if people can absolve themselves from any personal responsibility for their own actions, with the spectre of lawyers only too willing to pounce with a claim for damages on the slightest pretext.
This view was directly contradicted in the report by its author Lord Young, a die-hard Tory. He found no evidence of a “compensation culture”, saying that:
The problem of the compensation culture prevalent in society today is, however, one of perception rather than reality. (read more here)
Buying in to the myth, the media picked up on the Prime Minister’s inflammatory comments in the foreword rather than Lord Young’s more measured and accurate words, which were buried on page 19.
The bogus “compensation culture” came up again when I was interviewed on BBC radio discussing Essex Police’s claims payout record. In this follow-up blog post I suggested that the focus should be on the police’s conduct rather than compensation awards.
Sensing an opportunity to avoid scrutiny and save money, the police repeat the party line and pursue victim shaming in the media. For example, in 2013 Norfolk’s Chief Constable Phil Gormley said in a BBC Radio Norfolk interview that it was “disappointing” that the Police Federation supported one of his officers for bringing a compensation claim against her employers after an accident at work. He went on to describe a “corrosive compensation culture” which “generates a something for nothing attitude”.
By making victims of police misconduct feel guilty about fighting for their constitutional rights they suffer again. They feel ashamed for claiming compensation, and when they do seek access to justice their claims are denied and/or delayed, adding to their pain.
This cynical approach seems to be working. Compensation claims, including those against the police, are falling. For example, Essex Police paid out less in compensation claims to the public in 2014 than in previous years. While cost savings are welcome, the wider issue for society is that victim shaming to discourage people from seeking access to justice means that police misconduct will go unchecked, leading to more instances of police abuse.
3. Government Policy
Perhaps more than anyone, the government has ensured that access to Her Majesty’s courts is not, to quote the Lord Chief Justice, “freely available to everyone”.
Changes to court fees mean that the civil courts (including the civil litigation courts which hear actions against the police) are now subsidising the criminal courts to fill a funding gap. This means that it costs far more to issue court proceedings and take claims to trial. The dramatically increased court fees include “enhanced” fees where the costs are greater than the hearing involved. The overall impact is a “poll tax on wheels” denying access to justice to those least able to afford it, resulting in a Conservative-led select committee describing court fees as an unjustified tax which prevents people from obtaining justice.
Despite this clear warning, court fees remain prohibitively high for many genuine claimants. Again, as with the “compensation culture” myth, even when fellow Conservatives contradict them, the government carries on regardless.
The increase in court fees comes on the back of the damaging effects of the Legal Aid, Sentencing, and Punishment of Offenders Act (2012). I explained here how this one law drastically changed the way civil compensation claims were brought before the courts, adding a layer of cost and risk which can put off legitimate claimants. One reason is that Qualified One Way Costs Shifting, which can give costs protection in personal injury claims, does not apply to all civil claims, and, in particular, actions against the police.
In March 2016 the Civil Justice Council, an Advisory Public Body responsible for overseeing and coordinating the modernisation of the civil justice system, recommended extending Qualified One Way Costs Shifting to all actions against the police (including those which do not directly involve personal injury such as malicious prosecution or discrimination claims). It said:
There are strong, if not compelling, arguments of principle – based on access to justice and on the asymmetry of the relationship between the parties – weighing in favour of extending the scope of QOCS protection (or something very similar) to claims against the police.
And
Principled arguments for not doing do not appear to have been made out.
Predictably, the government has failed to act, leaving many victims of police misconduct unwilling or unable to seek access to justice at court.
Access to Justice Denied
The Lord Chief Justice was right to challenge the people who abused Gina Miller, the claimant in the Brexit case, and attempted to prevent her seeking legal redress. I urge the police and government to recognise that his rebuke could equally apply to them.
Kevin Donoghue is the Solicitor Director of Donoghue Solicitors, a law firm which specialises in civil actions against the police.