By Kevin Donoghue, solicitor
2016 has been a tumultuous year for the country as a whole, and civil litigation lawyers in particular. But what does 2017 hold? Here I look at three issues which affected us this year and make predictions for how they will play out in 2017.
1. The proposed increase in the small claims limit
What happened in 2016?
You might think that the immense task of implementing June’s Brexit vote would be enough to keep the government occupied. Sadly not. In November, the Ministry of Justice announced plans to raise the small claims limit for all personal injury claims, and either scrap “whiplash” damages completely, or introduce a cap of £425 for them. As I wrote in February about the small claims limit, at a time of great political upheaval the government’s plan will make it harder for genuine claimants to recover their rightful compensation. It is expected to:
- cost the country at least £1billion of much-needed revenue
- deny 85% of injured people legal representation
- hasten the collapse of the professional legal sector leading to mass unemployment.
Prediction for 2017
As this article in the Law Society Gazette points out, instead of solving the (non-existent) problem of a “rampant compensation culture”, these plans will make it worse. By taking ethical, professional, solicitors out of the personal injury sector claimants will suffer at the hands of unscrupulous claims management companies (CMCs).It seems that the government has simply forgotten about the suffering caused to innocent accident victims by the collapse of Claims Direct and The Accident Group, two high-profile CMCs.
And it is naïve for the government to think that raising the small claims limit will cut spam phone calls and text messages. Solicitors are banned from cold calling; claims management companies are not. CMCs, and those who help them with bulk text-messaging and robocalls, must be thrilled with the proposed changes. Expect more of the same.
The Ministry of Justice gave interested parties, including claimant lawyers, a (deliberately?) short period to respond to its consultation. It announced the proposals on 17 November and expects responses by 6 January 2017. It will confirm what will happen in April 2017. Insurance company lobbying means that they are well placed to get the increase in the small claims limit they crave, leading to even bigger profits because insurers will no longer pay genuine lower value claims. If implemented, it is unclear if any of the proposed changes require secondary legislation. If not, the government will proceed with its plans in 2017/ 2018.
2. Continued attacks on access to justice
The proposed increase in the small claims limit joins previous government policies which limit access to justice. During the Article 50 Brexit hearings, the Lord Chief Justice said, “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.”
In this blog post I noted that these stinging words could also apply to the government.
Previous and current government policies, particularly:
- the proposed raise in the small claims limit,
- failure to extend Qualified One Way Costs Shifting to all actions against the police claims, and
- keeping prohibitively high court fees
will make access to justice harder to obtain, especially for innocent victims of police misconduct.
3. Failing Police Culture
Throughout 2016 I wrote about various issues which I come across in my work as a solicitor dealing with civil claims against the police. Among other things I:
- asked if the police will take complaints seriously with Theresa May in No.10?
- suggested three ways the police could improve their body worn cameras policy
- wrote numerous blog posts about spit hoods.
There’s a common theme in these posts: concern at the police’s culture and its attitude to public scrutiny.
a) Police Complaints Reforms
What happened in 2016?
Prime Minister Theresa May’s disgust at, what she described as the police’s “contempt for the public”, led to the Policing and Crime Bill. The Bill, which is one step away from becoming an Act of Parliament,
“would implement many of the proposals in the Government’s Improving Police Integrity consultation. It would reform the system of police complaints in the following ways:
- A major role for Police and Crime Commissioners (PCCs) in the handling of police complaints
- Changes to the handling of complaints aimed at making the system easier to follow and more transparent
- Changes to the role and powers of the Independent Police Complaints Commission (IPCC) to reinforce its independence from police forces
- The introduction of ‘super-complaints’ to allow certain advocacy groups and charities to raise concerns over troubling systemic issues in policing.”
As I pointed out, senior police officers brought these changes upon themselves by deflecting blame and failing to take responsibility.
With the Policing and Crime Bill due to become an Act in 2017 the police complaints system will be under increased scrutiny. Its success will depend on the police embracing cultural change from the top down.
b) Body Worn Cameras
A University of Cambridge report found that police body worn cameras had a positive effect on policing. The lead researcher said, “I cannot think of any (other) single intervention in the history of policing that dramatically changed the way that officers behave, the way that suspects behave, and the way they interact with each other.” Chief Inspector Ian Williams of West Yorkshire Police also praised the many benefits of the “excellent” cameras, including increased detection rate, less time at court, and avoiding the need for vulnerable victims to give evidence at court.
Despite this, the system for body worn camera use is flawed and undermines public confidence in three ways:
- Instead of using body worn cameras which are constantly recording when on duty, police officers themselves control when the cameras are activated. Also, body worn cameras on the market today have a 2 minute pre-record function, but UK police only use (at best) cameras with a 30 second pre-record period. It is easy to imagine a situation where cameras are used selectively.
- Footage is kept for a very short period due to data protection issues. But that law could be used to justify deleting incriminating evidence against the police.
- Police officers involved in incidents have the power to edit footage. Editing creates a new, shorter file for use in evidence. But if the original footage is erased, leaving only the selectively edited file, innocent people could be wrongfully convicted.
More police officers will wear body worn cameras as the technology and data storage becomes cheaper. The public will expect to see full footage when incidents occur and question its absence and selective editing. To maintain public confidence, the police will need to address these issues and consistently deal with disclosure of footage when matters are “sub judice” (not yet judicially decided).
c) Spit Hoods
Despite some police forces, such as Sussex Police, using spit hoods for years, these “barbaric tools” appeared on the country’s radar after the Metropolitan Police cancelled a trial of their use in police custody suites after a public outcry.
During 2016 I wrote about spit hoods here on our blog, and discussed their use in radio interviews.I:
- noted that many forces already use, and misuse, the hoods, on children as young as 11.
- quoted a Freedom of Information Act response which found that none of the spit hoods used by the police have been tested or approved by the government, unlike other forms of equipment such as body worn cameras.
- described the delicate balancing act between police and public safety, and explained what happened when things went wrong. (In a detailed case study we described how our client Paul Smith (details used with permission) received £25,000 compensation after being wrongfully arrested and spit-hooded.)
- considered the approach taken by the police officers’ union, the Police Federation. The Federation is keen to see spit hoods issued more extensively, and uses the more neutral term “spit guard” instead of “spit hood”. But that clever bit of PR spin does not hide the fact that people have died after being spit-hooded.
The Metropolitan Police is consulting again on the use of spit hoods. After the consultation, it hopes to pilot the use of spit hoods in five custody suites in north-east London. As only 1/3 of police forces presently use spit hoods, the rest will be watching closely to see how the public reacts.
The police were caught on the back foot by the public outcry. I expect they will continue to seek public acceptance of spit hoods (referring to them as “spit guards”) and minimise the risks.
Final Thoughts on 2016 and 2017
2016 will long be remembered for its low points: the rise in hate crimes after the Brexit vote and Donald Trump’s election, Syria, the refugee crisis, terrorist attacks, celebrity deaths, and many other issues. We start 2017 with a blank slate. I urge the government and police to take their responsibilities as leaders seriously, and put the public first.
Kevin Donoghue is a solicitor who specialises in civil actions against the police.