Picture of Actions Against the Police Solicitor, Kevin DonoghueBy Kevin Donoghue, Solicitor

I was disappointed to read that another police solicitor is to be investigated by the Solicitors Regulation Authority (“SRA”) about ethical breaches.

(In this article a “police solicitor” is one who represents police forces and/ or the Police Federation (the staff association for all police constables, sergeants, and inspectors) when dealing with inquests, inquiries, and other matters. They also defend civil actions against the police made by victims of police misconduct and brought by solicitors like me.)

The police solicitor in the story linked above represented the Police Federation and has been interviewed under caution after five Thames Valley police officers gave differing accounts of the death of a man during a search.

The victim, Habib Ullah, died six years ago in a car park in High Wycombe, Buckinghamshire, while police searched for drugs which they believed were in his mouth.

The Independent Police Complaints Commission (“IPCC”) initially investigated and received statements from the officers. But it re-opened the case after an inquest into Mr. Ullah’s death was abandoned when new evidence emerged during their accounts.

The IPCC decided to look at the discrepancies between the statements it originally received and the police officers’ accounts given during the inquest. It interviewed the five officers and the police solicitor under caution and then took the unusual step of referring the case to the Crown Prosecution Service, alleging perjury and perverting the course of justice.

The Crown Prosecution Service noted that the police officers’ statements had been altered but declined to prosecute. The IPCC is now pushing for gross misconduct charges to be brought against the police officers. It has promised a full report once the fresh inquest into Mr. Ullah’s death has concluded.

The IPCC has also referred details of the investigation and its findings directly to the solicitors’ governing body, the Solicitors Regulation Authority, for it to consider the police solicitor’s part in the matter.

Hillsborough Police Solicitor Conduct

This is not the first time that a police solicitor has altered police officers’ statements after the event.

Mr. Ullah’s case comes on the back of the ongoing Hillsborough investigations, where it is alleged that South Yorkshire Police’s solicitor helped the Force cover up the truth about the Disaster.

In the Hillsborough Report the police solicitor, an experienced partner at a high-profile firm, was criticised for the “review and alteration” of 116 police officers’ statements. It said that his review recommended to a South Yorkshire Police Chief Superintendent that the statements remove or alter criticisms of senior officers, but that derogatory remarks about the Liverpool fans should be kept (p.56, para 1.253). As a result:

“the removal of conjecture or opinion was highly selective and officers’ comments on the hostility of the crowd remained as a statement of fact.” (p.325, para 2.11.74)

This was to have far-reaching consequences which negatively affected the outcome of the inquests, Inquiries, compensation claims against the police, and the bereaved families’ long fight for justice. Twenty five years later facts are finally coming out in the Report and the Hillsborough Inquests which should have been known at the beginning. As a lifelong Liverpool FC fan and Kop season ticket holder, this injustice, partial responsibility for which can be laid at the door of the police solicitor retained by South Yorkshire Police, still rankles.

Police Solicitor Conflict of Interest

In the Hillsborough case, it could be argued that the police solicitor had to deal with a difficult conflict of interest: he was representing the best interests of his client (South Yorkshire Police as a whole) while also taking instructions from people who may have harmed it (the senior police officers responsible for the Disaster).

But while this may seem to be a difficult situation, the experienced police solicitor ought to have known how to act.

This is because solicitors, unlike barristers, are officers of the court. The full title of a solicitor is a “solicitor of the Senior Courts of England and Wales”. All solicitors are taught about the weighty obligations of this role during ethics classes at law school.

Solicitors have a duty to the court first, and their clients second.  In the House of Lords case Arthur J.S. Hall and Co. v Simons(AP)[2000] UKHL 38, [2002] 1 AC 615 Lord Hope described the obligations when referring to trial advocates, but this applies equally to solicitors who run cases before trial. He said:

“The advocate’s duty to the court is not just that he must not mislead the court, that he must ensure that the facts are presented fairly and that he must draw the attention of the court to the relevant authorities even if they are against him. It extends to the whole way in which the client’s case is presented, so that time is not wasted and the court is able to focus on the issues as efficiently and economically as possible.” (my emphasis)

In stating these points, the court was emphasising that the solicitor is independent from his client when deciding how best to perform his duties. This right is established in the SRA’s Ten Principles of Conduct which all solicitors are bound to follow. The first three are:

  1. uphold the rule of law and the proper administration of justice;
  2. act with integrity;
  3. not allow your independence to be compromised.

The fourth rule: “act in the best interests of each client” is the one that the police solicitor would, no doubt, say was guiding his conduct. But you can’t get there without ignoring the first three.

 Ethics in Legal Practice

In day-to-day practice, the Procedure Rules of Court dictate how the solicitor must fulfil his or her duties. They are clear and unambiguous. For example, when deciding what documents need to be disclosed in a civil case, a solicitor should refer to Rule 31.6 of the Civil Procedure Rules (“CPR”) which says:

31.6  Standard disclosure requires a party to disclose only–

(a) the documents on which he relies; and

(b) the documents which –

(i) adversely affect his own case;

(ii) adversely affect another party’s case; or

(iii) support another party’s case; and

(c) the documents which he is required to disclose by a relevant practice direction.

(my emphasis)

By reminding the solicitor that he is under a duty to disclose documents which might harm his own client’s case or support another party’s case, he is reminded that his primary duty is to the court, to uphold the rule of law, and assist in the proper administration of justice.

Equally, witness statements must be verified by a statement of truth, which states that the person providing the statement believes the facts stated in the document are true (CPR r.22.1).

If a witness knowingly provides a false statement without an honest belief in its truth, he or she can be committed for contempt of court (CPR r.32.14).

And if a solicitor is found to have played a part in a witness providing a false statement, he or she risks disciplinary sanctions from the SRA for breaching the Principles outlined above. For that reason the solicitor involved in the Hillsborough cover-up was referred to the SRA and the IPCC has also referred the police solicitor involved in the Ullah case to the solicitors’ governing body.

Police Solicitors’ Role in Institutional Disregard for Ethics

In both the Hillsborough and Ullah cases described here it is important to note that the solicitors involved in alleged ethics violations were external advisers. It would not be fair to tar all police solicitors with the same brush, but it is worth asking whether an institutional disregard for ethical conduct exists within the police. After all, officers’ statements were altered with their consent, potentially leading to miscarriages of justice.

The police solicitor has an important role to play when dealing with investigations and claims against the police, particularly with respect to their ethical responsibilities when reviewing adverse evidence.

By reminding themselves, and their clients, of their duties as officers of the court, they can avoid embarrassing and potentially career-threatening investigations by the SRA, and we can all benefit from the proper administration of justice.

 

Kevin Donoghue is a solicitor and director of Donoghue Solicitors Ltd., a law firm which specialises in civil actions against the police. Contact him on 0151 933 1474 or via the website https://www.donoghue-solicitors.co.uk.

 

 

 

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