This is not one of those times. Today I want to talk about:
the team we have here at Donoghue Solicitors,
how staff appraisals bring out the best in us, and
why this matters to our clients.
How We Do Staff Appraisals
I recently concluded staff appraisals. Some managers dread them. They think of appraisals as box-ticking exercises and race through them.
Not me. As the director of my firm I find them essential, from both a management perspective and a personal one. We’re a small and close-knit team, and discuss personal and professional matters daily. But at the formal appraisals we take our discussions to a higher level, and deal with:
goals and objectives,
achievements, accomplishments, and responsibilities,
performance evaluation and areas for development,
career development, and
anything else we want to discuss.
Before the appraisals I ask all staff to complete a questionnaire and bring it to the meeting. I take this part seriously, dedicating time my team could otherwise spend working. They think about their:
anything else that comes to mind.
Armed with this information we have honest and open discussions in the appraisals. They take time, but are well worth it.
Outcome of Staff Appraisals
As expected, the appraisals brought out the best in my team. They told me that they want:
challenging work, and
involvement in the future planning of the practice.
I was also impressed how they thought about, and wanted to take responsibility for, their own futures. Everyone’s training needs are different but they all want to improve. Some of my team are fortunate to be “millennials”. But they couldn’t be further away from the stereotype of people waiting for others to help them. They don’t want participation awards; they want to participate.
The appraisals energised my team. They are even more determined to showcase their talents and deliver for our clients. I’m lucky and proud to work with such an excellent, dedicated, and talented group of people. I knew this already, but it’s nice to be reminded.
Read more from Donoghue Solicitors’ expert team of lawyers on the blog.
Last week I asked why the Home Office was ignoring spit hoods, allowing individual police forces to roll them out on a piecemeal basis. (TL;DR it’s inexcusable, and people are being injured, or worse, as a result.) Another issue the government seems unwilling, or unable, to deal with is Facial Recognition Technology. Unlike spit hoods, it is not potentially deadly. But it matters. Here’s why.
Facial Recognition Technology used at Notting Hill Carnival
This year’s Notting Hill Carnival generated controversy as the Metropolitan Police Service trialled “mobile facial recognition software”. It was the second such trial at the Bank Holiday weekend event.
The police use Facial Recognition Technology to scan the faces of passers-by in public. The software can also use images taken in police station custody suites after arrest.
Normally, police get biometric data from suspects during the “booking in” process at a police station custody suite. This includes a DNA sample, fingerprints, and head & shoulder digital photographs. This biometric data is stored on the Police National Database (PND) and other databases for future investigations. Also, and significantly for people who have been unlawfully arrested, it can be part of a police record check.
A record of arrest and biometric data can be devastating to employment prospects, as my client Nigel Lang found out. He lost his job working with vulnerable teenagers after his wrongful arrest, compounding a deeply distressing event. With my help Nigel recovered compensation and, importantly for him, cleared the police’s records of his arrest and biometric data.
The police treat DNA and fingerprint data differently to custody photographs. Under the Protection of Freedoms Act (2012), DNA and fingerprints are automatically deleted if you are arrested and found to be innocent or released without charge.
Custody photographs are not. Local police forces keep these images. They can add them to the Police National Database for use by all police forces in the UK. The police can manipulate the images by adding biometric data to them. This data, which is akin to a digital fingerprint, is also uploaded to police databases. Police can cross-reference it with social media images, CCTV, live video etc.. Unless the police agree to delete them, they keep database images for at least 6 years. But in practice the police keep images indefinitely because rules provide for retention until the subject is 100 years old.
I am not satisfied that the existing policy strikes a fair balance between the competing public and private interests and meets the requirements of proportionality. In my judgment, therefore, the retention of the claimants’ photographs in application of the existing policy amounts to an unjustified interference with their right to respect for their private life and is in breach of art.8.
It should be clear in the circumstances that a ‘reasonable further period’ for revising the policy is to be measured in months, not years.
The review suggests that the retention and use of facial images is ‘generally less intrusive (than DNA or fingerprints) as many people’s faces are on public display all the time’. I disagree with that assertion. In fact for that reason the use of facial images is more intrusive because image capture can be done using cameras in public places and searched against government databases without the subject being aware. Facial images are no longer only used solely for custody purposes and image capture and facial searching capabilities have and are being used by the police in public places.
Further Legal Issues
As well as the court finding against the police and the Biometrics Commissioner’s criticism, forces must deal with other overlapping laws, including the:
right to respect for private life under Article 8 of the Human Rights Act. (As mentioned by LJ Richards in his judgment),
requirement to avoid discrimination under the Equality Act 2010, and
Data Protection Act principles. These include rules that personal data shall be processed “fairly and lawfully” and “shall not be kept for longer than is necessary”.
This ought to have been enough for the police to pause their facial recognition programs and reflect. And yet they continue to harvest facial images and add biometric data to them.
It is hard to see why the police are pressing on with facial recognition technology. It is likely to lead to more legal criticism and costly punishment.
Add to this the fact that the Biometrics Commissioner has criticised both the police and the Home Office for failing to carry out testing, procedures, and policies. He is especially concerned that Parliament has not been involved in the process to “reassure the public that their privacy is being properly protected”.
It can’t be right that:
retention of fingerprints and DNA is subject to the law, but
facial images and related biometric data are not.
Cressida Dick, Commissioner for the Metropolitan Police, refused to respond to a letter from civil liberties and race relations groups asking her to pause this “shady enterprise” at the Notting Hill Carnival. She ignored them, which makes me wonder if she is truly committed to Peel’s 9 Principles of Policing, as I asked here.
In particular, I don’t know how police can use facial recognition technology without publicising it, or seeking Parliamentary approval, and still meet Principle 2:
To recognise always that the power of the police to fulfil their functions and duties is dependent on public approval of their existence, actions and behaviour and on their ability to secure and maintain public respect.
“Big Brother” Expansion
Liberty, the human rights organisation, found that the real-time facial recognition at the Carnival was a dismal failure, producing only 1 positive match over 4 days. It frequently provided false positives such as confusing men with women, and did not compensate for racial bias.
There are clear parallels here with the spit hood situation. The Home Office, through its Centre for Applied Science and Technology (CAST), should have considered spit hoods years ago. It still has not. Letting individual forces decide if, and how, to use these potentially deadly tools is a shameful failure.
The Home Office seems intent on repeating the spit hood mistake. To date, 3 police forces have introduced facial recognition technology without CAST oversight. And to invite tenders from technology companies, spending millions of pounds of taxpayers’ money while avoiding parliamentary scrutiny despite the demands of MPs, suggests a wilful disregard of government duties and the democratic process.
Without CAST’s official guidance individual police forces looking to use spit hoods must:
make their own risk and use assessments,
find suitable models, and
formulate training standards.
This leads to inconsistencies in spit hood use across police forces. For example:
Only about half of all UK police forces use spit hoods. Those forces introduced them at various times and authorised use in different situations. As one Police Federation representative pointed out in an earlier interview, spit hoods have been used by Sussex Police since around 2010 and are issued to front-line officers. West Yorkshire Police has used them in custody suites since 2013, and announced this week that front-line officers will get them soon. The Metropolitan Police Service, the country’s biggest force, is presently trialling what it calls “spit guards” in custody suites only. This means that suspects can be spit-hooded by front-line British Transport Police officers at London’s train stations, but not by front-line Metropolitan Police officers on the streets outside.
This situation worries me as a solicitor who specialises in civil actions against the police because I help people who have suffered due to police misconduct, which can include the use of spit hoods. My client Paul Smith (details used with permission) suffered horribly when Sussex Police officers unlawfully arrested and sprayed him with PAVA (“pepper”) spray. During the arrest the police restrained him face down. He reflexively tried to clear his airways and was not spitting the foul-tasting and painful spray at them, but they spit hooded him anyway. This was a painful and traumatic episode, as the transcripts from police officer body worn video footage proved:
Paul Smith I am on fucking fire
PC S Stay still, I sprayed you for a reason, because you were resisting arrest
Paul Smith I need water
PC S We don’t have water
Paul Smith I need water. I need water man
PC S We don’t have any water to give you
PC C You will get water when you go in your cell
Paul Smith I am choking
PC C You’re not choking
Paul Smith Seriously take it [the spit hood] off
PC C You can’t have it off your face
Paul Smith Take it off, serious. Seriously, oh god xxxxxx
Spit Hood Consequences
Paul was one of the lucky ones, despite his horrendous ordeal. He survived, unlike Jonathan Pluck of Peterborough who died in police custody after being spit hooded. I helped Paul recover £25,000 compensation, but this was a life-changing experience. He “will never trust them [the police] again”.
As I explained to the BBC Radio Leeds listeners,
“…someone is going to suffer irreversible brain damage, asphyxiation, and potentially a fatality. I don’t want to have that conversation with a family because these [spit hoods] have not been properly thought through.”
This is not just an issue for members of the public. It also affects the police officers who use spit hoods. If I was a police officer I would be very reticent about using a spit hood without a full assessment and guidance from CAST first. Without this the police don’t know if the equipment is suitable and if their training is adequate. The risk of death and serious injury to suspects is real. No officer wants that or potential criminal, civil, and misconduct proceedings in which their use of a spit hood would be scrutinised in great detail.
Police Federation Campaigns
Despite this risk to their members, Police Federation representatives continue to campaign for spit hoods. Hailing this week’s announcement, West Yorkshire Police Federation Chairman Nick Smart said:
“This is about protecting the protectors as they go about their duties and keep the public safe.”
As I mentioned earlier, I have no issue with that. But he went further, saying:
“Anyone who decries this move or speaks out against it is simply putting the human rights of criminals who deliberately spit at police officers above the rights of police officers.”
I strongly disagree with this characterisation on two counts:
Police officers and members of the public have equal rights to protection under the law. Legitimately raising concerns about spit hoods is not putting one side ahead of the other. This is not “Team Police vs Team Suspect”, and
As Paul Smith’s case shows, putting a spit hood on someone does not make them a “criminal”. Suspects are innocent until proven guilty. Nick Smart’s inflammatory language, calling people “criminals”, is inaccurate and unhelpful.
Call for Action
Police Federations are akin to unions for police officers, from the rank-and-file up to Chief Inspectors. They are politically influential both within their own forces and on a national level, as Nick Smart pointed out when he said:
“The introduction of Spit Guards is something we as a local Federation have been lobbying both politicians and senior officers to review and agree to the use of for some time.”
I don’t know why CAST has ignored spit hoods so far. But given the concerns I, and many others, have with them, I urge Police Federations to use their political power to make CAST evaluate these tools immediately. Until then, Federations should pause their campaigns to roll-out spit hoods more widely. Police Federation members, who are also members of the public and could be wrongly spit-hooded themselves, should demand it.
correcting inaccurate police records/ destruction of DNA etc. which could impact on future job prospects/ parental access rights etc.
holding the police accountable for their actions
seeing that lessons are learned so that others don’t have to suffer similarly.
Effects When People Bring Claims Against the Police
So, bringing claims against the police helps claimants in many ways. But there’s more to it than that. It is not enough that victims seek and recover remedies and compensation for police misconduct, and that the police take steps to prevent a recurrence. For society to have confidence in the Rule of Law we must see that justice is done. By publicly bringing claims against the police, claimants:
fulfil a valuable civic duty by showing society that our constitutional rights can, and should, be upheld
remind police who abuse their positions of power that no one is above the law, especially those tasked with upholding it
contribute to changes to existing police policies, and to the development of new practices, which can help reduce police misconduct in future
help develop new law, which further protects our fundamental human rights.
In some cases, this is done by victims of police misconduct publicising their cases after they finish. For example:
1. Nigel Lang was wrongfully arrested on suspicion of possessing indecent images of children. He lost his job working with vulnerable young people, and suffered serious psychological effects.
With my help Nigel Lang received £60,000 compensation and made sure the police corrected his record. Hertfordshire Police, the force which arranged for Nigel Lang’s arrest after incorrectly providing his IP address, apologised and confirmed it changed its procedures to prevent a repeat of his ordeal. All this has helped him start to rebuild his life.
But even though it was hard, Nigel recognised the importance of telling the public about what had happened for the reasons above. I arranged for him to speak with journalists from Buzzfeed News. Later he appeared on the BBC’s Victoria Derbyshire programme before a nationwide television audience. By doing so he raised public awareness of the devastating effects of what the police pithily described as an “administrative error”.
2. Paul Smith was late for work and frustrated at the delay in being issued a parking ticket. When things escalated he was wrongfully arrested, assaulted, “pepper” sprayed, and put in a spit hood in full view of the public in his home town of Hastings. Paul’s painful and humiliating experience was made worse because he felt that his family, friends, and neighbours thought he was somehow responsible. The £25,000 compensation he received helped prove his innocence to them and restore his reputation.
Spit Hood Dangers
Like Nigel Lang, Paul wanted the public to know what happened and to understand the horrendous experience of being spit-hooded. He kindly agreed to me using his details when discussing his case in radio interviews and online. I referred to Paul’s case to explain what happens when the police spray victims with PAVA “pepper spray” before applying spit hoods. Among other things:
the spray causes a reflexive clearing of the airways which can (wrongly) be interpreted as spitting at an officer, and
hooding people who have been sprayed increases the risk of suffocation, causing serious injury or, in the worst cases, death.
In other cases, bringing claims against the police also extends to publicising misconduct in courtrooms where the public, journalists, and others can see justice being done. For example:
1. I represented James Parry, a prominent solicitor based in Merseyside. He was wrongfully arrested after agreeing to attend a local police station for a voluntary interview with a police officer investigating an alleged theft. The arrest smeared Mr Parry’s professional reputation as it called into question his honesty. It was worse because he is a criminal solicitor who often represents clients at Merseyside’s police stations.
The police refused to accept wrongdoing so we took James’s case to trial in Liverpool County Court, where he won £9,000 compensation for his false imprisonment claim. Pubic vindication by a judge in court was of vital importance to my client as a solicitor who appears in Liverpool’s courts daily. His story was also reported in the Liverpool Echo and the Law Society Gazette, the trade magazine for the legal profession, helping further public knowledge and (hopefully) change the police’s procedures with respect to voluntary interviews.
Merseyside Police issued a statement in response to the press reports saying:
‘The force carefully considered this civil action and it was thoroughly examined by our legal department who also sought external legal advice. As a result, it was decided that it was appropriate to defend the claim and test the facts in court.’
2. Another of my clients recently won her case at Cardiff County Court after being wrongfully convicted of assaulting a police officer. My client, who worked part-time as an SIA-accredited steward, was driving home when the police pulled her over. Things got out of hand and the officers assaulted and arrested her. To her horror, the officers falselyclaimed that my client had assaulted one of them in the execution of his duty. The police prosecuted, and convicted, her at the Magistrates’ Court on the basis of the officers’ false evidence. She appealed to the Crown Court, where the court found no case to answer and quashed her conviction.
Civil Court Judgment
But that did not go far enough to restore her reputation, clear her record, and hold the police to account for their appalling misconduct. I took her case to trial where the Judge made a public finding against the police. He said,
“In my judgment the arrest and prosecution of the Claimant was the result of a face-saving exercise by the police officers involved, who had allowed a trivial event to become an incident in which an innocent member of the public had been assaulted and injured by them”.
This finding was essential to my client personally and in her work as she could now correct her police record. The court also awarded my client more than £70,000 compensation, a large amount which reflected the serious nature of the police misconduct. The judgment was also important for the public, as it showed that the police can be held to account.
Understandably, some people can be in two minds about whether to bring claims against the police. Proceedings can be stressful, hard-fought, and take a long time. Challenging the misconduct of “our brave boys in blue” may be unpalatable, especially for people who have never been in trouble with the police before. But we should all recognise the bravery of victims of police abuse, because, as Lord Chief Justice Hewart said in R v Sussex Justices ex p McCarthy (1924):
“[It] is of fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done.”
This week I found myself in the unusual position of agreeing with a representative of the police’s union, the Police Federation. They represent the interests of police constables, sergeants, and inspectors up to, and including, the rank of Chief Inspector.
As a solicitor who specialises in civil actions against the police, I represent people who have been victims of misconduct at the hands of Police Federation members. As a result, we often find ourselves on opposite sides of debates about policing in the UK.
But this week I found myself agreeing with the West Midlands Police Federation representative quoted in a BBC report. It described how a police officer won more than £12,000 in compensation after being bitten by fleas at work. The Force justified the five-figure award by saying:
“Compensation payouts are only made following the assessment of appropriate medical evidence by insurers and solicitors who then make a recommendation to the force as to what the pay-out should be.”
Police Federation Defence
Defending the officer’s claim, Tom Cuddeford of West Midlands Police Federation said that compensation awards
“aren’t flippantly made”.
I couldn’t agree more, but some senior police officers do not hold our views.
Listen to Norfolk’s (former) Chief Constable Phil Gormley complain about the “corrosive compensation culture” when one of his own officers claimed compensation for her accident at work. He argued that “it generates a something for nothing attitude”.
So, who is right? The Former Chief Constable who argued that there is a “compensation culture” fuelling claims, or the Police Federation (and me)?
To answer that question, think about what’s involved in bringing a compensation claim against the police, by either a victim of police misconduct or a police officer injured at work:
The claimant must have a valid, actionable claim in law. Grounds for compensation claims vary depending on the circumstances. For example, the law in civil actions against the police is complex. Police are well-protected so they can (generally) go about the business of fighting crime without fear of being sued. These limits on actions against the police mean that invalid claims do not get off the ground. Similarly, solicitors who represent police officers in accident at work claims may have to consider various laws, including statute, common law, employment law, and contract law to find out if the injured police officer can claim compensation. Neither is easy.
Claims are strictly vetted by claimant solicitors like me before being submitted. As officers of the Supreme Court, we must act in the best interests of both our clients and the court. We filter unmeritorious claims to fulfil that duty. (It does no one any good to present hopeless claims at court.) We do this at no cost to the police or their insurers. This means that only the strongest cases go forward.
Claimants know they in for a hard fight, especially when suing the police, who are agents of the State. Compensation claims against the police are (usually) aggressively fought by police forces, who have deep pockets and massive resources, which are only matched by their determination to protect their reputations. Insurers take a similarly hard-line approach when dealing with police officers’ accident at work claims. Payouts can be huge, especially if early retirement and pension rights are part of the claim. Insurers, like police forces, are not in the business of giving away money easily.
This means that only the best claims make it through the contested litigation process. Only genuine victims of police misconduct and accidents at work win compensation. And the compensation they receive is not a windfall. It is intended to put them in the position as if the police misconduct or work accident did not happen. No more, no less.
As I wrote here, the police use the (non-existent) “compensation culture” argument to deflect attention from their own misconduct and mismanagement. It’s about time that senior officers agreed with their Police Federation colleagues and recognised that claiming compensation is a legal right and that money is only paid in genuine claims. Claims against the police
are not part of a “corrosive compensation culture”, they
“aren’t flippantly made”, and they are clearly not
“something for nothing”.
Kevin Donoghue is a solicitor who specialises in civil actions against the police. Contact him here.
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).
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:
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.
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.
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.)
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.
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.
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?
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.
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.
Police abuse of authority for sexual gain is a nationwide problem. All but one police force had at least one case during the period.
There were 436 reported police sex abuse allegations made against the police in England and Wales (excluding British Transport Police)
306 police officers were accused of this kind of police corruption
28 PCSOs and staff were also accused
40% of allegations involved victims of crime (who were vulnerable already)
39% of accusations involved victims of domestic abuse.
It seems that everyone agrees this is a grave issue. HMIC Inspector Mike Cunningham described police sexual exploitation as the “most serious” form of corruption. Home Secretary Amber Rudd described the findings as “shocking”, saying it “undermines justice and public confidence”. The National Police Chiefs Council say this kind of misconduct in public office is a “disease” which “can never be justified or condoned”.
Despite this, HMIC found that less than half (48%) of all the police sexual exploitation cases it identified were reported to the Independent Police Complaints Commission (IPCC) for an independent investigation. HMIC said the police’s failure to refer matters to the IPCC was “disappointing” because police forces are aware of their obligations, shown by:
the IPCC/ Association of Chief Police Officers report which raised the issue in 2012. The IPCC reported on it again in 2015, as did HMIC (as it was then known), and
clear rules which state that police forces are required to report ALL of these “serious corruption” cases to the IPCC.
Perhaps even more troubling was the “apparent disconnect” between the numbers of alleged cases and staff dismissals. Between 1 December 2013 and 30 November 2014 only 33 officers were dismissed after having had a relationship with a vulnerable person.
This means that some officers who prey on vulnerable people for their own sexual gain stay in the police, giving them the opportunity to repeat this serious misconduct in public office.
Why are these things happening?
The story of one of my clients might help with an answer.
Police Sexual Exploitation by Phone
“Jean” (name changed for confidentiality) is a 61-year-old divorcee. She was married to a police officer for 15 years.
She met “John” on an online dating site. They became friendly but did not “click”, occasionally walking their dogs together. John was moving house and asked if he could store some boxes at her home. Jean agreed. He mentioned that one of the boxes had a home-made pornographic video of him and his ex-wife. Jean thought it was unusual that John would mention that, but was not interested in watching it.
John disappeared for a while. Jean later found out that he had been arrested. Jean contacted John’s daughter to find out why. She told Jean that John had been arrested for sex with a minor. Jean contacted the police and told them she had John’s stuff, including the sex tape. They collected it and viewed the video. It did not show John and his ex-wife. John had filmed himself having sex with a minor.
Jean was shocked and disgusted. How could she have become friends with this man? Her confidence was shaken, she felt vulnerable and emotionally raw.
Because of the serious nature of the case, a Detective Chief Inspector led the investigation. John was convicted and jailed with Jean’s help.
Months after the case ended Jean got a friendly text message from the DCI. She responded and they began texting back and forth. (This is known as “grooming” in sexual abuse cases.)
At one point the senior police officer sent her a picture of his erect penis. Jean was shocked, upset, and realised that the officer had been grooming her, abusing his position of authority for sexual gain. She immediately reported matters to another senior officer in the DCI’s force.
Police Corruption Investigation
As mentioned earlier, the IPCC’s rules are clear on what should have happened next. Matters involving “serious corruption” must always go to the IPCC for independent investigation. But what is “serious corruption”? Helpfully, HMIC defined it as the:
exercise of power or privilege of a police constable for the purposes of achieving a benefit for himself or herself, or a benefit or a detriment for another person, when a reasonable person would not expect the power or privilege to be exercised for the purpose of achieving that benefit or detriment; as defined in section 26 of the Criminal Justice and Courts Act 2015.
It went on to define “police abuse of authority for sexual gain” as:
a type of serious corruption, whereby police officers or police staff abuse their powers to sexually exploit or abuse people.
The officer’s conduct fits within both definitions. It was also a breach of the Police’s Code of Ethics which 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.
And yet, despite
the IPCC’s strict rules
HMIC guidance, and
strong evidence of misconduct (including my client’s account, text messages, and photographic evidence),
the officer tasked with investigating Jean’s complaint tried to get her to agree to the Force dealing with matters internally.
Jean‘s 15 years of marriage to a police officer made her suspicious of this offer. She thought that if the police investigated her complaint themselves it would be “brushed under the carpet”. In her view this was even more likely because it involved a Detective Chief Inspector, a very senior officer, who was near the end of a long and decorated career.
She refused the investigating officer’s proposal and demanded that her case be referred to the IPCC for an independent investigation. They are now involved and I am helping Jean with a civil compensation claim against the police.
Failure to Refer Police Sex Abuse to the IPCC
In my opinion, the DCI’s misconduct in Jean’s case was obvious. Despite this, the Force tried to persuade Jean to let them deal with her complaint internally. At this point we can only speculate why. I will press the police for an explanation during my client’s case.
Public Confidence in Police Sexual Exploitation Investigations
It is unclear why the majority of police forces wrongly deal with police sexual exploitation matters internally, especially when everyone agrees that this form of corruption is serious and wrong.
Police overseers have a duty to hold police forces and officers to account. One way they can do this is by strictly enforcing the IPCC’s mandatory referral rules when investigating police sexual exploitation. Only then can the public have confidence that this form of police corruption is being treated with the gravity it deserves.
After the recent counter-terrorism raid in Willesden, North London, Ms Dick has an opportunity to show how she meets this Standard. She could immediately
issue body worn cameras to all firearms officers,
insist on their use, and
back proposed changes to post-incident investigations.
In doing so, the Commissioner would
meet her own duties and ethical requirements,
assist officers in theirs, and
lead other forces by example.
This is why.
London Counter-Terrorism Raid Shooting
On Thursday 27 April, Metropolitan Police officers shot a 21-year old woman in a planned counter-terrorism raid in Willesden, North London. The woman was arrested on suspicion of terrorism-related offences on her release from hospital a few days later.
The Independent Police Complaints Commission (“IPCC”) investigated right away. It reported that:
Initial accounts have been provided by all of the key police witnesses and the majority have now provided their detailed accounts of the incident, in line with current authorised police practice. None of those key police witnesses, those who were inside the property at the time the woman was shot, were wearing body worn video.
It is unlikely that there will be any other video footage taken from inside the woman’s home during the raid. If so, the IPCC’s investigators will have to rely upon the evidence of the officers involved. This situation is unsatisfactory because the officers involved can confer about what happened before providing their accounts. If the shooting victim has a different version of events, it will be hard for her to counter the police’s consistent and similar evidence.
The potential for abuse is obvious. But how can body worn cameras help?
Benefits of Body Worn Cameras
Police officers have used body worn cameras in the UK since 2005. In October last year the Met announced that it was issuing cameras to 22,000 frontline officers. Sir Bernard Hogan-Howe, the former Commissioner of the Metropolitan Police, promoted their use as he said they help the police get “the best evidence possible” and make sure the public can “hold us to account”.
He’s right on both counts.
As a solicitor who specialises in civil actions against the police I often disagree with police policies, procedures, and (mis)conduct. But on the use of body worn cameras I agree with the former Commissioner, especially when it comes to holding the police to account. As I explained here, body worn camera video evidence helped my client Paul Smith (details used with permission):
argue his case at the police station immediately after arrest,
secure his release from custody without charge, and
recover fair compensation as an innocent victim of police misconduct.
In doing so, the video also
helped the police deal with the consequences of officer misconduct, and
saved the taxpayer the cost of a court trial.
Even though the police need to improve their body worn cameras policy, I am firmly of the view that cameras are helpful and should be issued to all front-line officers as soon as possible.
But firearms officers must get this equipment first given their dangerous, and sometimes deadly, role. Influential voices in the police agree. According to Simon Chesterman, the National Police Chiefs Council lead on armed policing, firearms officers are “falling over themselves to get hold of these cameras”.
These are Authorised Firearms Officers who have undergone extra training. They deal with terrorist incidents and hostage situations among other duties.
In October 2015 the IPCC noted that, in contrast to Authorised Firearms Officers, Specialist Firearms Officers do not routinely wear body worn cameras. (Then) IPCC Commissioner Jennifer Izekor raised this glaring inconsistency in a letter to Sir Bernard Hogan-Howe.
In that letter the IPCC recommended that armed officers involved in “overt” operations should be equipped with body worn cameras “at the earliest opportunity”. Despite this recommendation, over a year and a half later it seems from the Willesden raid that Specialist Firearms Officers are still waiting. Simon Chesterman says that the Metropolitan Police intends to have every uniformed firearms officer wear one by the end of 2017. Why the delay?
(It’s worth noting the different treatment of “overt” and “covert” operations. The police are grappling with how to incorporate body worn cameras into undercover (“covert”) operations. A source says they use cameras fitted in buttons to avoid exposure.
No such issues arise with “overt” policing matters though. Anyone watching the footage from the planned Willesden counter-terrorism raid could be in no doubt. See the mobile phone footage from across the street here. This was a very public “overt” incident. The uniformed, armed officers, did not attempt to hide the operation. It will be interesting to know if the officers involved in planning considered using body worn cameras.)
Despite broad agreement about the use of body worn cameras, police representatives and the IPCC disagree about how to investigate incidents involving death or serious injury. Firearms officers are particularly affected because of their role.
Simon Chesterman complained that the fears of post-incident investigations put off potential firearms recruits. He said that “There are things in the background that, if we don’t get them right, will put people off.”
To “counter some of the myths the Police Federation are putting out” the IPCC published its “Draft statutory guidance to the police service on achieving best evidence in death or serious injury matters” on its website. It sent the draft Guidance to the Home Office in February.
One of the proposed changes relates to how police officers presently confer with colleagues after death or serious injury incidents, which can include those involving firearms. The draft Guidance says:
Separation and prohibition on conferring
Any conferring between witnesses has the potential to undermine the integrity of their evidence, and to damage public confidence in the investigation. As a result, non-police witnesses are routinely warned not to discuss the incident in question either before or after they have given their accounts. The same should apply to policing witnesses.
Once the key policing witnesses have been identified: 20.1 They should be instructed not to speak (or otherwise communicate) about the incident with each other, or any other potential witnesses, both before and after they have given their accounts. 20.2 If it is necessary for key policing witnesses to discuss the incident with each other to avert a real and immediate risk to life, the extent to which such discussion has taken place, the justification for doing so and the content of that conversation, must be recorded as soon as possible.
20.3 From the moment it is operationally safe to do so, they should be kept separate until after their detailed individual factual account (“DIFA”) is obtained.
This change in the approach to taking police witness evidence was described by Sarah Green, the IPCC Deputy Chair, as merely “mirroring the approach police take with all key witnesses”. I agree with the IPCC on this. Allowing police officers to confer before providing their statements undermines investigations and public confidence.
The use of body worn video would help both sides of this debate. While it might not tell the whole story, it would ease the burden on officers. Their individual video footage could be reviewed along with their written accounts. And it would help speed up investigations, as it did in my client Paul Smith’s case. If firearms officers have acted appropriately, and are not “trigger happy” as was once suggested by their SAS trainers, then body worn video will help prove that and allow them to get on with their important work.
Metropolitan Police Commissioner Cressida Dick, whose reputation will forever be linked to the fatal shooting of an innocent man, Jean Charles de Menezes, could take the lead here in three ways:
Issue body worn cameras to firearms officers immediately.
Insist that body worn cameras are required in all matters involving firearms officers, even covert operations.
Support the IPCC’s draft statutory guidance on achieving best evidence in death or serious injury matters to promote transparency.
Doing these things would make sure
Metropolitan Police officers and their representatives,
the IPCC, and
all know she is listening to their concerns, taking them seriously, and promoting the highest ethical standards within the Force. Win: win: win.
This is Part 3 in a 3-part blog. Read Part 1 and Part 2 by clicking on the links.
Ask a police officer what they have in common with solicitors and they may answer, “not a lot”. But they do. Both have a Code of Ethics, something which sets professions apart from other careers.
The solicitors’ Code of Conduct outlines the standards required of people in this branch of the legal profession. It defines “the fundamental ethical and professional standards that we expect of all firms and individuals (including owners who may not be lawyers) when providing legal services.” The rules are strictly enforced, and include the duties to act with integrity, uphold the rule of law, and act in the best interests of clients. Failure to do so can lead to disciplinary sanctions, including removal from the roll of solicitors.
The police have something similar: the College of Policing’s 2014 Code of Ethics. This is “a code of practice for the principles and standards of professional behaviour for the policing profession in England and Wales”. It applies to all officers, police staff, volunteers, and contractors. The Code of Ethics is grounded in Sir Robert Peel’s 9 Principles of Policing, which you can read more about here. Like the solicitors’ Code of Conduct, it sets “standards of professional behaviour”, such as the duty to act with honesty and integrity.
Police Code of Ethics
But what does this have to do with militarisation of the police? Read these two standards of professional behaviour from the Code of Ethics:
Use of force
I will only use force as part of my role and responsibilities, and only to the extent that it is necessary, proportionate and reasonable in all the circumstances.
4.1 This standard is primarily intended for police officers who, on occasion, may need to use force in carrying out their duties.
4.2 Police staff, volunteers and contractors in particular operational roles (for example, custody-related) may also be required to use force in the course of their duties.
4.3 According to this standard you must use only the minimum amount of force necessary to achieve the required result.
4.4 You will have to account for any use of force, in other words justify it based upon your honestly held belief at the time that you used the force.
I will behave in a manner, whether on or off duty, which does not bring discredit on the police service or undermine public confidence in policing.
9.1 As a police officer, member of police staff or other person working for the police service, you must keep in mind at all times that the public expect you to maintain the highest standards of behaviour. You must, therefore, always think about how a member of the public may regard your behaviour, whether on or off duty.
9.2 You should ask yourself whether a particular decision, action or omission might result in members of the public losing trust and confidence in the policing profession.
9.3 It is recognised that the test of whether behaviour has brought discredit on policing is not solely about media coverage and public perception but has regard to all the circumstances.
These rules apply to all police professionals, not just front line officers. Chief Constables, who are responsible for force policies and equipment use, must weigh the need to protect their officers with their duties to the public. This is a difficult balancing act. As I explained when discussing spit hoods, there is pressure from all sides.
Fortunately for the police, the Code of Ethics promotes the National Decision Model (“NDM”). It is “the primary decision-making model for police in England and Wales. Individuals, supervisors and others use it to assess potential decisions or decisions that have already been made.”
It is an “inherently flexible” way of “making ethical decisions” and puts “the Code of Ethics at the centre of all decision making”.
Officers are expected “to apply the intent of the Code” to their decisions. But are they?
In some areas it seems that the way some Chief Constables reviewed the Use of Force assessment and Powers and Policy in the National Decision Model is inadequate. These guidelines state that officers should assess the situation, including any specific threat, the risk of harm and the potential for benefits. “Decision makers” could also ask themselves “is there any research evidence?’, what options are open, and if the decision was “proportionate, legitimate, necessary and ethical”.
Look at the piecemeal roll out of spit hoods. Given that
the Home Office has not tested or approved any models of spit hoods, set ethical standards for their use, or official training methods, and
the West Midlands Police Force Medical Officer reported that the risk of infection from spittle is low
in 2014 West Midlands Police’s Chief Constable refused to issue spit hoods after a thorough risk assessment, which is publicly available
I do not see how Chief Constables who issued spit hoods could say that their decisions were “reasonable in the circumstances facing them at the time”.
National Decision Model and Tasers
This poor-decision making can be seen on a day-to-day basis too. Consider how the police use Tasers. The Association of Chief Police Officers’ (“ACPO”) guidelines state that a police Taser should only be used “where they are facing violence or threats of violence of such severity that they would need to use force to protect the public, themselves or the subject.”
And, again, officers should be mindful of the Code of Ethics and the National Decision Model. Any force should be necessary, proportionate, and reasonable in all the circumstances.
Mr Adunbi was questioned by police officers, then struggled to free himself. At 49 seconds in on the recording you will see one of the police officers shoot Mr Adunbi with her Taser while he is standing a few feet away from her, in a non-threatening stance. It appears that only after the “less-lethal” weapon has struck Mr Adunbi, incapacitating him, does she say “Taser, Taser, Taser”.
Could the officer have followed the National Decision Model and Code of Ethics to try to de-escalate the situation? If not, did she follow the official guidance and use the Taser only when she felt that the threat of violence was so severe that she needed to use force to protect herself?
What to do?
The consequences for the police and public of ignoring the Code of Ethics and National Decision Model are clear. They mean nothing if the police fail to follow them. Couple that with increased police militarisation and more people will be suffer miscarriages of justice, be injured, and in the worst cases, die. Public confidence in the police will be eroded, especially along racial lines, and the doctrine of “policing by consent” will cease to exist.
It’s time to get back to basics:
Chief Constables could lead the way by re-affirming their commitment to the Code and National Decision Model. They could resist the temptation to further militarise the police and acquire more law enforcement technology without first applying rigorous, dispassionate analysis.
Police Federation chiefs, who are police officers themselves, could also apply the model when considering the needs of their members. For example, they could seek data and examples before promoting spit hoods.
All officers could seek better training, particularly in conflict resolution and how to de-escalate situations. This will be particularly important to the newly-minted armed officers. Our police forces could learn from the Japanese whose “response to violence is never violence- it is to de-escalate”.
The boys in blue may have turned into the boys in black but that doesn’t make Britain a war zone. Despite the recent terrorist attack in London the wider public have not become enemy combatants. Applying professional standards is vital if the police want to maintain public confidence and support. Officers have a duty to uphold these standards. It’s time they did.
The perceived and (after last week’s horrific attack in London) real threat of terrorism has played a major role in the police becoming militarised. Irish republican extremists have given way to jihadists but the effect is the same. Their senseless attacks create fear, and fear of terrorism provokes a response in both the public and those charged with protecting us.
Chief Constables have addressed these fears in various ways. Some steps are less visible than others. After 56 people died in the 7 July 2005 attacks (known as “7/7”) the police and intelligence agencies changed procedures behind the scenes to work more closely together. But after the Paris terrorist attacks of 13 November 2015 the Metropolitan Police Service “reassessed its ability to respond to armed attacks”. This resulted in an extra 600 armed officers in the capital, bringing the total number to 2,800. Some police officers use SIG 516 semi-automatic carbine rifles and Glock 9mm handguns. They look more like SAS soldiers.
2. Budget cuts
In 2015 the BBC reported how the Conservative-led coalition government’s austerity measures imposed drastic cuts to police budgets. These resulted in an overall reduction of 18%. Police officer numbers declined by almost 17,000, with a loss of 15,877 support staff and 4,587 police community support officers. This put overall workforce numbers back to their 2003 levels. Despite the cuts crime continued to decline from its high-point in 1995.
And yet HM Inspectorate of Constabulary, the police watchdog, recently warned that some forces are dealing with the funding gap by putting the public at risk. HMI Zoe Billingham, who led the inspection, described how:
“During this inspection, we’ve seen how some forces are attempting to reduce pressure on their teams by artificially suppressing or downgrading calls upon their service, reducing their ability to take the most effective and prompt action. We think this is often an unintended consequence of recent changes forces have made, frequently in response to the challenge of austerity, and as they struggle to respond to increasing and ever changing levels of demand.
“Consequently, some basic things are not being done: we found evidence of fewer arrests being made, some crimes are being shelved without proper investigations taking place and suspects arenot always being relentlessly tracked down. It is vital that police leaders take action now before these problems become more widespread and acute – so that the public are properly protected.”
One way forces have adapted is in the increased use of weapons, such as Tasers, PAVA spray, and spit hoods. These tools are relatively cheap and readily available. They require minimal training and, crucially for officers, have an immediate deterrent effect. If that fails, they can be used effectively for compliance and arrest. But, as I noted in this blog post on Tasers, and this one on spit hoods, forces are abusing this military-style equipment. They undermine public confidence in doing so.
Until the mid-1990s police officers walking the beat were often armed with nothing more than a simple wooden truncheon. (You can see some examples here.)
But, as with all things, improvements in technology and perceived demand for newer, better kit led to changes. Perhaps unsurprisingly, much of the development of this new equipment comes from the USA, with its large and enthusiastic police market driving innovation. For example:
the straight wooden truncheon has been replaced by items such as the ASP Friction Loc. This is a telescoping metal baton which its manufacturers describe as having “an incredible psychological deterrence and unparalleled control potential”. Forces also use side-handle batons modelled after martial arts weapons, such as the Monadnock PR-24.
Taser “stun-guns” fire two small-dart-like electrodes with conductor wires. The electrodes attach to the suspect before delivering an electric current which causes strong involuntary muscle contractions and “neuromuscular incapacitation”. They are effective in controlling the actions of a suspect by pain compliance. Tasers were initially issued to the police in 2003 and only to specially trained firearms officers. In 2008 Chief Officers were given the option of issuing them to other trained units. Recently Home Secretary Amber Rudd authorised the newer TASER X2. It delivers 2 shots instead of the previous X26, which issues only 1.Tasers are popular with officers. In 2015 the police used their Tasers 10,329 times. The Metropolitan Police Federation surveyed its members and found that 75% want all Metropolitan Police officers to have them.
CS (“tear gas”) and the more recent PAVA (“pepper”) Captor spray are riot control agents commonly issued to officers. When discharged to the mucous membranes of the face they cause a burning sensation, tearing to the eyes, mucous and spit, and a reflexive narrowing of the airways. Subjects have difficulty seeing and breathing. (Read how PAVA affected our client Paul Smith here.) CS was first introduced in 1996 and used more than 10,000 times between then and 1998, prompting a government safety review. PAVA Captor spray is now said to be used by over 60% of police forces, and claimed to be non-flammable and Taser-safe.
The use of this technology is not without controversy. As described in Part 1 of this blog people have died at the hands of police officers using it. And some of the equipment, such as spit hoods, has not been tested by government experts. Chief Constables must decide for themselves if they want to use these “barbaric” tools and, if so, what to buy, and what training to provide, and when to use them. This leads to dangerous inconsistencies in policing. Some forces, such as Kent, say they will not use spit hoods after spraying the subject with CS/ PAVA. Sussex Police do. (Read how Sussex Police officers spit-hooded my client Paul Smith (details used with permission) after spraying him with PAVA here.)
4. Internal Pressures
Police forces are no different to any workplace in that they are subject to politics and internal pressures. Police Federations, the staff associations which represent officers, campaign hard for officers to be given access to more and better law enforcement equipment.
While that is understandable, it is their job after all, sometimes their approach is unhelpful. After Avon and Somerset police officers mistook Judah Adunbi for a wanted man and Tasered him the local police federation chairman defended his officers, saying they were “doing what the public expect of them”.
Police federation campaigns can also serve to unnecessarily heighten concerns within their own members. The piecemeal roll out of spit hoods across the country has, in part, been based on misguided fears of contracting disease through spittle. West Midlands Police’s Force Health, Safety & Welfare Committee noted that:
“whilst extremely unpleasant the likelihood of contracting communicable diseases from spittle is low.”
And in February the Hepatitis C Trust and National Aids Trust expressed concern that spit hoods were wrongly being promoted as a way to help prevent hepatitis C and HIV. The Trust pointed out that:
“hepatitis C and HIV cannot be transmitted via spitting. Suggestions to the contrary are not only incorrect, but are hugely damaging as they reinforce existing stigma and misconceptions that surround both viruses.”
It went on to raise a wider point, about fear:
Such falsehoods also cause unnecessary alarm to police staff. Given the significant challenges faced by police officers in the line of duty, causing them to fear they have been put at risk when they have not places an undue burden upon them, and must not go unchallenged. While the debate around the use of spit hoods is an important one for the police, policy-makers and the public, hepatitis C and HIV are of no relevance to it and should not be used as justification for their use.
This matters because fear-driven officers may become more risk averse, ignoring the Police’s Code of Ethics. They may abandon less invasive techniques when dealing with people in favour of more draconian, militaristic methods.
We’ll look at the consequences of this in next week’s blog.