Was Simon Brodkin Wrongfully Arrested for a Breach of the Peace?

Photo of Kevin Donoghue, solicitor, who considers if Simon Brodkin was wrongfully arrested for a breach of the peace.
Was Simon Brodkin wrongfully arrested for a breach of the peace? Kevin Donoghue looks at the evidence here.

By Kevin Donoghue, solicitor

It’s fair to say that Theresa May’s speech at the Conservative party conference last week was farcical. Not only did she suffer persistent coughing, but letters on the sign behind her fell off the wall, giving quick-witted viewers the chance to mock her with social media memes.

 

Perhaps most embarrassing was the prank by Simon Brodkin, also known as Lee Nelson. He presented Mrs May with a fake P45 (HMRC details of employee leaving work). As he handed it over to a confused and embarrassed Mrs May, he said, “Boris told me to give you this.”

After interrupting the Prime Minister, he turned to Foreign Secretary Boris Johnson, who was sitting in the front row with fellow cabinet members. Simon Brodkin gave Mr Johnson a “thumbs up”, saying, “Boris, job done.”

Conference security officers escorted Mr Brodkin from the hall. Chief Superintendent John O’Hare was in charge of security at the event. He confirmed what happened:

Earlier today a man was detained by conference security during the Prime Minister’s speech.

Officers attended and the man was arrested to prevent a breach of the peace and was released a short time later.

No doubt the incident was embarrassing for the Chief Superintendent too. Mr Brodkin “had legitimate accreditation” to the event after all. But there’s another issue: were the police right to arrest him for “a breach of the peace”?

The Law on Breach of the Peace

Some police officers do not understand the law in breach of the peace cases. Here’s a quick refresher.

“A breach of the peace” refers to “a breach of the Queen’s peace”, and has its roots in the Justices of the Peace Act (1361). It is not a criminal offence in the sense that no conviction, fine, or imprisonment can directly come from the breach. Instead, magistrates have the power to issue a “bind over” for a limited time to prevent a further breach of the peace.

In R v Howell (1982) the Court of Appeal confirmed the elements of this “common law” concept. It is a situation where the behaviour of the person involved caused the arresting officer (or private citizen such as a conference security staff member) to believe that:

  1. A breach of the peace had or would occur, and that
  2. It related to harm which was actually done, or likely to be done, to a person, or in his/ her presence, their property.

The Court of Appeal went on to explain that officers (or private citizens) have the power to arrest without a warrant where:

  • A breach of the peace was committed in the presence of the person making the arrest
  • There was a threat of the breach of the peace being renewed, and
  • In cases where no breach of the peace had been committed, the person making the arrest reasonably and honestly believed that such a breach would be committed in the immediate future.

Considering the Simon Brodkin Case

Whether there was a breach of the peace in Simon Brodkin’s case depends on how a court would interpret these rules. To make a ruling the court would have to consider the:

  1. Circumstances (objective consideration), and
  2. Arresting officer’s (subjective) view.

Watch the footage of Mr Brodkin’s interaction with the Prime Minister and cabinet members below:

Was there harm, or the imminent threat of harm, to person or property? Was there a threat that a breach of the peace would be renewed or committed in the immediate future? If the police argued that Mr Brodkin had not acted unlawfully but that there was an imminent threat of a breach of the peace, could they say that there was

a sufficiently real and present threat to the peace to justify the extreme step of depriving of his liberty a citizen who is not at the time acting unlawfully.

(Foulkes v Merseyside Police (1998)

Some viewers might conclude that Mr Brodkin does not appear to do any acts which cause, or are likely to cause, harm. Others may say that the fact that:

-he got so close to the PM and cabinet, and

-was able to interact with them in such a high-profile setting,

created a reasonable belief for security staff and police that a breach of the peace occurred.

Continued Detention for Breach of the Peace

Police often claim a breach of the peace to break up violent, or potentially violent, situations. Once they are satisfied that the peace has been restored justification for holding those involved no longer exists.

This matters because, even if the breach of the peace arrest was lawful, the police must justify continuing detention on a “minute by minute” basis. Failing to do so can result in compensation awards.

Chief Superintendent O’Hare said that Simon Brodkin was released “a short time later”.

But, as this footage showsMr Brodkin was handcuffed, calm and co-operative as the police escorted him out of the venue. They put him in a police van, presumably to go to a police station. Was that necessary given that Mr Brodkin was no longer in the conference hall and could not renew the breach of the peace? And, if they went to a police station, were the police justified in detaining him there, even for “a short time”?

Consequences for Mr Brodkin (a.k.a. Lee Nelson)

I don’t know if Mr Brodkin intends to take action against the police. It looks like he has an arguable case, but I can’t comment further without knowing all the facts.

If he does decide to claim compensation, Mr Brodkin should be aware that police routinely fight compensation claims. It may take a trial at court to determine if his arrest and detention were lawful.

As matters stand, Mr Brodkin’s prank will have lasting consequences for his personal record. Greater Manchester Police said no charges were being brought against him. In the context of a breach of the peace this means that Mr Brodkin was not taken to a magistrates’ court where he could have been bound over to keep the peace.

But he was arrested.

Some employers and regulators like the Solicitors Regulation Authority make you report arrests. And, if he was formally processed at a police station, the police now hold his photographs, fingerprints, and DNA records. They will keep his records on police computers unless Mr Brodkin proves the arrest was unlawful. Even then, as I explained here, in the case of custody photographs, he would have to apply to remove them.

Arrests for a breach of the peace can be life-changing. It matters that the police get them right.

Kevin Donoghue is a solicitor who specialises in civil actions against the police.

 

This is Why People Sue the Police

Kevin Donoghue, solicitor, discusses why people sue the police in this blog post.
Solicitor Kevin Donoghue discusses why people sue the police.

When people sue the police are they only after money? Here Kevin Donoghue, solicitor, looks at their motivations, how the system forces some to claim compensation, and the impact of the so-called “compensation culture”.

Let’s get one thing straight. The “compensation culture” is bogus. It’s a vampire myth that refuses to die even though government ministers, senior judges, and others have found no evidence of it. And yet, the myth persists, promoted by insurers, attention-hogging politicians, and senior police officers including Phil Gormley, Chief Constable of Norfolk Police (as he was then).

Why?

Those who promote the compensation culture story have something to gain, be it money, political power, or some other benefit. In the case of the police, shaming innocent victims to stop them claiming compensation means more money for police budgets. And as I explain here, blaming the compensation culture helps the police avoid scrutiny as it deflects attention from their own management failings and misconduct.

Why People Sue the Police

But even if the compensation culture existed, money is rarely the main reason people sue the police. This is because civil claims are about more than compensation. They are also about justice, accountability, and vindication:

  1. For society to have confidence in the Rule of Law and the police’s role in it we need to see justice done when they act improperly. Innocent victims of police misconduct help by bringing civil claims to hold the police accountable for their actions. We all benefit as a result.
  2. Victims also deserve public acknowledgement of the wrongs they suffered. This can have a healing effect, helping them rebuild their lives after (often) appalling treatment by the police.
  3. Righting these wrongs often includes correcting personal data such as records of arrest, DNA samples, and fingerprints. (For example, read how we helped Nigel Lang clear his name after his wrongful arrest on suspicion of possessing indecent images of children.)
  4. Most of my clients tell me that these things matter more than compensation, but recognise that compensation is an essential part of civil claims against the police. This is especially so in cases where the police stubbornly refuse to apologise. Compensation is the next best thing as victims know it will lead to questions being asked within the responsible Force. Sometimes this leads to changes in police policy. My clients are often very interested in this, as they don’t want anyone else to suffer like they did.

Fight for Justice

Civil claims against the police also fill a gap in our legal system. They help victims of police misconduct seek justice where the criminal justice system and police’s own internal disciplinary processes fail.

I represent a teenage girl who alleges that she was sexually assaulted by a (then) serving police officer. My client immediately lodged a complaint against the police.  With her help, the police prepared a case for the Crown Prosecution Service (CPS) to bring criminal proceedings against the officer.

The burden of proof in criminal cases is beyond reasonable doubt. The CPS felt that the case was strong enough to seek a conviction.  My client gave evidence in court at a jury trial despite her genuine upset about being in the same room as her alleged attacker.

After hearing all the evidence, the jury could not agree that the CPS had met the high burden of proof. It was “hung” and the judge declared a mistrial.

The CPS insisted on a re-trial. My client gave evidence again, repeating her earlier harrowing experience. This time the jury acquitted the police officer, and he left court a free man.

My client was deeply upset. She took the verdict as meaning that the jury believed the police officer and thought that she was a liar.

Police Complaint

Determined to fight for justice, my client pressed the police to investigate her complaint thoroughly.

The police officer’s Professional Standards Department (PSD) investigated. Among other things, my client’s allegations raised a breach of the Police Code of Ethics which could result in misconduct proceedings. The Code states that police officers and staff must

not establish or pursue an improper sexual or emotional relationship with a person with whom you come into contact in the course of your work who may be vulnerable to an abuse of trust or power.

On her version of events, the PSD should have referred  the case to the Independent Police Complaints Commission as it involved “serious corruption” and a “serious sexual offence”. But, for reasons unclear, the PSD’s investigating officers chose to deal with my client’s complaint “in house”. (This is not unusual. Read more about how the police wrongly handle police sexual exploitation complaints here.)

The burden of proof in police misconduct matters is the civil standard of “the preponderance of evidence”. This is lower than the criminal “beyond reasonable doubt” standard which the officer faced in his 2 jury trials. For a finding of misconduct, the PSD need show only that is was more probable than not that the misconduct occurred as alleged.

My client was confident that this would happen and that the officer would be severely sanctioned, and probably dismissed, for gross misconduct. After all, the CPS felt confident enough in the case to fight it to trial twice. Surely the police officer’s misconduct hearing would find that the case met the lower civil standard?

Resignation

Sadly, we will never know. The police officer resigned following his acquittal in the criminal trial. Misconduct proceedings, where the most serious penalty is dismissal, were ended.

This means that the police officer involved has no stain on his record. He is free to seek employment elsewhere, including occupations which may bring him into contact with vulnerable young people again.

Worryingly, he is not alone. In 2016 Her Majesty’s Inspectorate of Constabulary, the police’s overseer, reported that:

Since December 2013, police forces have been providing the college [of policing] with details of officers who have been dismissed from the service, or who resigned or retired while subject to a gross misconduct investigation in which it had already been determined that there was a case to answer.

Misconduct figures from the register relating to leavers between 1 December 2013 and 30 November 2014 were published in March 2016.39 Sixty-seven (8 percent) of the 833 cases on the register during this time were recorded as relating to police officers leaving the service after having had a relationship with a vulnerable person. Thirty-three of these 67 leavers were dismissed, 30 resigned and 4 retired.

(my emphasis)

Civil Compensation Claim

After all her other options had been exhausted, my client researched solicitors who bring actions against the police. We met and I explained that she could still pursue a civil compensation claim for police abuse of authority for sexual gain. This is despite the police officer’s acquittal in criminal court and his later resignation. On the evidence I have seen, she has a good claim for damages. This is partly because, like in the police officer’s misconduct proceedings, her compensation claim will be considered on the (lower) civil standard of proof.

The system has failed my client so far. In bringing this compensation claim she is seeking justice, vindication, and accountability. She also wants to make sure that the police take her allegations seriously, and put procedures in place to stop someone else suffering what she has been through. Her motives could not be further away from those raised by promoters of the bogus “compensation culture”.

 

Contact Kevin Donoghue for help to sue the police here.

 

Donoghue Solicitors Shortlisted for Liverpool Law Society Award

 

Logo of Liverpool Law Society Legal Awards 2017 shortlisted Niche Law Firm Award.
Donoghue Solicitors has been shortlisted for the Niche Law Firm Award in the 2017 Liverpool Law Society Legal Awards.

By Kevin Donoghue, Solicitor

Two years ago, Donoghue Solicitors won the Niche Law Firm Award at the 2015 Liverpool Law Society Legal Awards.

The awards are held bi-annually, and we were honoured to hold the Niche Law Firm Award title for two years.

I have just learned that we have been shortlisted for Niche Law Firm Award again in the 2017 Awards for our work in civil actions against the police.

About the 2017 Liverpool Law Society Legal Awards

Being shortlisted for the Niche Law Firm Award means a lot to us personally and professionally.

We are proud members of Liverpool Law Society, the local law society for the legal profession in Liverpool and the wider North West area. It is one of the biggest local law societies in England and Wales, with about 2,200 members working in all fields of law, at firms large and small.

The Society’s Legal Awards are a highlight for all members. They:

  • “recognise and celebrate the achievements of our member law firms, legal departments and individuals
  • bring together the region’s legal community
  • culminate in a fabulous presentation evening.”

The 2017 Award Categories are:

  • Commercial Law Award
  • Criminal Law Award
  • Dispute Resolution & Litigation Award
  • Employment Law Award
  • Family Law Award
  • Junior Lawyer Award
  • Large Law Firm Award
  • Medium Law Firm Award
  • Niche Law Firm Award
  • Outstanding Contribution to the Law Award
  • Private Client Award Property Law Award
  • Small Law Firm Award
  • Work in the Community Award

Strict Judging criteria

Liverpool Law Society’s website says that:

The awards will be judged by an independent judging panel with panel members drawn from the worlds of business, academia and the judiciary and chaired by District Judge Helen Broughton, a non-practising, non-voting past president of Liverpool Law Society.  The 2017 panel of judges are: HHJ De Haas QC, Designated Family Judge for Merseyside and Cheshire, Carol Draycott, Chester Centre Director and Associate Professor at the University of Law and Mark Basnett, Executive Director at the Liverpool City Region Local Enterprise Partnership.

The judges only select firms on merit, based on strict criteria. They received many submissions from firms and individuals. I understand that “competition was very strong this year and the judging panel were impressed by all the entries.”

Donoghue Solicitors was only shortlisted after a thorough review of evidence including client reviews, some of which you can read here.

Among other things, I explained:

  • how we contribute to the reputational benefit of Liverpool and the surrounding areas
  • what we are doing to develop our particular niche area
  • what innovations we have brought to the law and client service
  • how we represent “law at its best”
  • what goals and targets we have achieved.

I told the panel about:

  • the important cases we have pursued and won for our clients (read about some of them here)
  • how we help people get access to justice through no win no fee agreements where appropriate
  • how I use the media and the firm’s blog to share knowledge in actions against the police
  • our creative use of IT and technology to help people throughout England and Wales get justice
  • our commitment to training and development (I train other solicitors as well as my staff)
  • our charity work and community involvement.

2017 Legal Awards Ceremony

The 2017 awards will be handed out at a black-tie dinner on Friday 12 May. In 2015 BBC Radio Merseyside’s Roger Phillips did a fantastic job of hosting. He will be Master of Ceremonies again in May. We are all looking forward to the event.

I want to thank the judging panel, our clients, staff, and families for helping Donoghue Solicitors get shortlisted for this prestigious award.

 

Read more from me on the Donoghue Solicitors blog.

 

 

 

Niche Law Firm Award Winners!

Photo of Kevin Donoghue, Solicitor of Niche Law Firm Award winners, Donoghue Solicitors.
Kevin Donoghue, Solicitor of Niche Law Firm Award winners, Donoghue Solicitors.

By Kevin Donoghue, Solicitor Director of Donoghue Solicitors

We won!

You might remember we were shortlisted for two Liverpool Law Society Legal Awards (read the story here), including the coveted Niche Law Firm Award for our work in actions against the police.

At a glittering black-tie awards ceremony at the Crowne Plaza Hotel in Liverpool on Friday 15 May we became the Niche Law Firm Award winners, beating two other shortlisted firms to the important title.

The ceremony was hosted by well-known local radio personality Roger Phillips and was attended by over 300 lawyers and their guests, including many nationally-renowned people from the legal world.

Emlyn Williams, Liverpool Law Society President, explained to the audience that “the Awards showcased the best of the legal profession” and “demonstrated excellence in legal services provided by the member firms based in and around Merseyside.”

Photo of Donoghue Solicitors' tables at the Liverpool Law Society Awards.
Donoghue Solicitors’ tables at the Liverpool Law Society Awards.

Niche Law Firm Recommendation

We all listened as Roger Phillips read the independent judges’ comments, which I have permission to repeat here. They said:

“Donoghue Solicitors have developed a niche specialism in civil actions against the police. Their work covers complex areas of law and practice, frequently combining a range of personal injury, privacy and Human Rights issues.

“The judges were impressed with their commitment to working with clients who are seeking to attain justice and challenge misconduct. The cases frequently involve important issues of principle pertaining to client confidentiality and reputational damage.

“There is a clear and significant commitment to widening access to justice.”

On this basis the panel, which included a leading Queens Counsel judge, a former past president of Liverpool Law Society, a law professor at John Moores University, and a city councillor, recommended Donoghue Solicitors for the Niche Law Firm award.

Niche Law Firm Award winners logo.
Liverpool Law Society Niche Law Firm Award winners – Donoghue Solicitors.

Grateful Thanks

As I escorted my team up to the podium to collect the niche law firm award I looked around our tables to see our parents, partners, and special guests cheering us on. It was an immensely proud moment for me. I will never forget it.

One of our guests filmed my acceptance speech on her phone. You can see it here:

In the footage you can hear me thank my team, and especially my mum and dad. My parents unwavering support was especially important when I decided to set up my own niche law firm in 2010 during the recession. Thanks to them and my wife Steph, who believed in me and made many sacrifices to help get the firm off the ground. With their help I and my small, dedicated team have been able to help a great number of people gain access to justice and the compensation they deserve.

Donoghue Solicitors win the Niche Law Firm Award at the Liverpool Law Society Legal Awards.
Donoghue Solicitors win the Niche Law Firm Award at the Liverpool Law Society Legal Awards.

 

As you can imagine, we had a fantastic night which didn’t end until the early hours. It was a well-organised and hosted event which everyone enjoyed, as you can see from the official photos on the Liverpool Law Society’s website and flickr page, and some funny ones on their facebook page. (We’re in photos 38 and 45. Look away if you’re uncomfortable seeing pictures of people in curly wigs and Mexican hats!)

Actions Against the Police Niche

This public recognition of our work in the niche area of actions against the police litigation means a lot and spurs us on to work harder and achieve greater things. We are grateful to the judging panel for choosing Donoghue Solicitors to receive the award.

We will continue to fight hard for our clients and seek to “demonstrate excellence” as we grow.

 

If you want help with your compensation claim from the Liverpool Law Society Niche Law Firm Award winners (!) call Donoghue Solicitors on 0151 236 1336 (local number), 08000 124 246 (freephone number), or fill out the short enquiry form on this page.