How police ignore guidance on outcomes in police misconduct proceedings

Photo of Solicitor Kevin Donoghue, who considers the impact of the new guidance on outcomes in police misconduct proceedings.
Solicitor Kevin Donoghue considers the impact of the new guidance on outcomes in police misconduct proceedings.

By Kevin Donoghue, solicitor

Last week the College of Policing issued a new document: “Guidance on outcomes in police misconduct proceedings”.

The College, which issued the guidance, describes itself as “the professional body for everyone who works for the police service in England and Wales. Our purpose is to provide those working in policing with the skills and knowledge necessary to prevent crime, protect the public and secure public trust.”

The College says that the guidance should help those who conduct misconduct proceedings. It does not replace existing guidance. Instead, it pulls together relevant legislation, case law, and good practice into one document. By doing so, the College hopes the guidance will “bring consistency in applicable outcomes following findings in misconduct proceedings.”

But it warns that it “does not override the discretion of the person presiding over the proceedings and it cannot and should not prescribe the outcome.” It also says that even though, “The guidance is there to assist those presiding over misconduct proceedings, they are not required to use it.“

So what’s the point? The College says that it is there to “assist ensuring consistency in decision making.”

If so, then it could help promote fairness to both police and public, accountability, and transparency. Such guidance is long overdue. Because, as, one of my client’s cases shows, decisions in police misconduct proceedings can be curiously lenient to say the least.

Police Assault and Battery

Recently, my client “Peter” settled his compensation claim against Northamptonshire Police for £10,000 plus legal costs.

Peter and his partner were separated. She had the children. One evening Peter was home in his flat when his partner called. She told Peter that she did not like him and he would never see his children again. He was upset and got drunk to numb his feelings. The neighbour in the flat below called the police, saying that she heard crying and banging.

Two officers, a female police constable (PC C) and male special constable (SPC Y), were sent to investigate. The call was logged as ‘a person threatening to commit suicide’. (Peter denied he wanted to do this.) Paramedics also attended with an ambulance.

The female police officer, PC C, was wearing a body worn video camera. It filmed some of what happened. PC C talked to Peter, who said he did not want their help or to go to hospital.

The officers ignored Peter’s wishes and tried to get him to his feet. They banged his head on a wall and pushed him against it. They handcuffed Peter to the rear, telling him this was “for his own safety”.

The officers walked Peter out of his flat onto a communal landing area above a stairwell. They started walking down the stairs. The handcuffs hurt. They were too tight, and Peter begged the police to remove them. He got upset and raised his voice when they ignored him. SPC Y told Peter to stop shouting or “I will drag you down”.

Peter, who was still drunk, said, “Do it. Do it.” The special constable said, “O.K.” and pulled Peter forwards. Peter fell face first down six stairs. The handcuffs prevented him breaking his fall. Peter smashed his face and right shoulder against the wall and floor at the bottom of the stairs.

He screamed in pain. SPC Y aggressively shouted, “Get up!”. Peter thought the police officer might assault him again, so he kneed the special constable in the groin.

The police dragged Peter to his feet and SPC Y put him in a headlock. They took him to the ambulance and SPC Y told Peter that he is under arrest for assaulting a police officer.

SPC Y put leg straps on Peter. These, with the handcuffs, made Peter completely immobile and vulnerable.

But SPC Y goaded him, asking Peter “How many of us would you like to come down and sit on yer?”

The paramedics took Peter to hospital. Blood tests confirmed Peter had not taken any medication. As he had said, he did not attempt suicide.

The police took Peter to Brackmills Criminal Justice Centre. An officer interviewed Peter and put the “assault PC” allegation to him. Peter denied he was responsible and said again that SPC Y threw him down the stairs.

The police released Peter after 17 hours saying they would take “no further action”.

Peter filed a complaint against the police and an investigator took a statement from him. Investigators also took statements from PC C and SPC Y, and interviewed them both under caution. PC C described the actions of SPC Y- of pulling Peter down the stairs- as being “incorrect” and “excessive”.

But despite this SPC Y denied any wrongdoing. Even though PC C’s body worn video showed what had happened, he denied dragging Peter down the stairs. He said that he had merely pulled Peter closer to him to take him down the stairs. And he blamed Peter for his fall, saying that Peter dropped his weight on his legs and fell down.

SPC Y was unrepentant. He maintained that his actions were reasonable, lawful, and necessary.

Despite this, he was accused of alleged gross misconduct. After a misconduct hearing SPC Y received “final written warnings” in respect of three proven misconduct charges:

  1. authority, respect and courtesy
  2. use of force
  3. discreditable conduct.

Was that the right decision? Consider the “Guidance on outcomes in police misconduct proceedings” and make your own mind up.

What is police misconduct?

The “Guidance on outcomes in police misconduct proceedings” says that:

Misconduct is generally defined as unacceptable or improper behaviour and for police officers will involve a breach of the Standards of Professional Behaviour set out in Schedule 2 to the Conduct Regulations.

Under Regulation 3(1) of the Conduct Regulations:

  • misconduct means a breach of the Standards of Professional Behaviour
  • gross misconduct means a breach of the Standards of Professional Behaviour which is so serious that dismissal would be justified.

Purpose of police misconduct regime

It might surprise you to find out that “misconduct proceedings are not designed to punish police officers” (point 2.10). Instead, maintaining public confidence is key. As Lord Carswell stated in R (Green) v Police Complaints Authority:

“Public confidence in the police is a factor of great importance in the maintenance of law and order in the manner which we regard as appropriate in our polity. If citizens feel that improper behaviour on the part of police officers is left unchecked and they are not held accountable for it in a suitable manner, that confidence will be eroded.”

On this basis, the guidance states that the police misconduct regime should:

  • maintain public confidence in and the reputation of the police service
  • uphold high standards in policing and deter misconduct
  • protect the public.

There is a three-stage test for adjudicators considering police misconduct. They must:

  1. assess the seriousness of the misconduct
  2. keep in mind the purpose of imposing sanctions
  3. choose the sanction which most appropriately fulfils that purpose for the seriousness of the conduct in question.

Seriousness of police misconduct

The panel should assess seriousness by considering:

  • the officer’s culpability for the misconduct
  • the harm caused by the misconduct
  • the existence of any aggravating factors
  • the existence of any mitigating factors.

As the guidance notes at 4.10:

Culpability denotes the officer’s blameworthiness or responsibility for their actions. The more culpable or blameworthy the behaviour in question, the more serious the misconduct and the more severe the likely outcome.

And, at 4.11:

Conduct which is intentional, deliberate, targeted or planned will generally be more culpable than conduct which has unintended consequences, although the consequences of an officer’s actions will be relevant to the harm caused.

Consider SPC Y’s conduct in the light of this guidance.

SPC Y had no power in law to arrest Peter. This is because he had no honest belief that Peter was guilty of the offence for which he was arrested. He deprived Peter of his liberty without legal cause. False imprisonment is a serious matter.

Also, the special constable deliberately (or recklessly) assaulted Peter. SPC Y then tormented Peter, abusing his position of authority and humiliating his victim. After that SPC Y tried to avoid responsibility for his actions, blaming Peter for his fall. He refused to apologise or accept blame, even in the face of criticism from his colleague PC C and her body worn video evidence.

There is no doubt in my mind that SPC Y was responsible for his actions. This should have put him in the “more severe” category of likely outcomes.

Harm

Moving on to the harm caused by the misconduct, the guidance lists physical injury and loss of liberty as types of harm (at 4.57). It notes that “harm will likely undermine public confidence in policing.” And urges adjudicators to “always take seriously misconduct which undermines discipline and good order within the police service…”

SPC Y appeared to be out of control when he assaulted Peter. Even after the initial assault, he failed to regain his composure. He put Peter in a headlock, applied leg straps, and goaded him. Taken together, these physical assaults and false imprisonment amounted to harm likely to “undermine public confidence in policing.”

Aggravating Factors

The guidance describes aggravating factors in police misconduct proceedings as “those tending to worsen the circumstances of the case, either in relation to the officer’s culpability or the harm caused.”

Relevant factors which show a higher level of culpability or harm include:

  • abuse of trust, position, powers or authority
  • deliberate or gratuitous violence or damage to property
  • concealing wrongdoing in question and/or attempting to blame others
  • vulnerability of the victim.

SPC Y abused his position of authority as a police officer. He deliberately and repeatedly assaulted an intoxicated, and vulnerable, victim. He then tried to deflect blame, and refused to apologise for his wrongdoing. All this suggests a higher level of culpability and harm to the victim.

Mitigating Factors

The guidance says “Mitigating factors are those tending to reduce the seriousness of the misconduct.”

We don’t know what SPC Y raised in mitigation during his misconduct hearing. Relevant factors may have included:

  • misconduct confined to a single episode or brief duration
  • any element of provocation, threat or disturbance which may have affected the officer’s judgement, eg, in relation to the use of force in the heat of the moment
  • acting pursuant to a legitimate policing purpose or in good faith, ie, a genuine belief that there was a legitimate purpose but getting things wrong
  • mental ill health, disability, medical condition or stress which may have affected the officer’s ability to cope with the circumstances in question
  • whether the officer was required to act outside their level of experience and/or without appropriate training or supervision

SPC Y may also have offered personal mitigation, references etc.

Applying the guidance on outcomes in police misconduct proceedings

SPC Y’s conduct was considered serious enough to be dealt with at a misconduct hearing. The available sanctions were:

  • management advice
  • written warning
  • final written warning
  • dismissal with notice
  • dismissal without notice.

The guidance emphasises the need to “Consider less severe outcomes before more severe outcomes” and the misconduct panel stopped short of dismissal. It issued final written warnings instead. Why? When you consider the seriousness of his misconduct and the College of Policing guidance it strikes me that SPC Y got off lightly.

Peter and I both share concerns that this sends the wrong message to SPC Y and his colleagues. In effect, you’ll get away with it, even with body worn video evidence proving police misconduct.

The College of Policing says it hopes “The introduction of the guidance will mean there is increased fairness and proportionality in cases which is important for officers and public confidence in the hearings.”

If the way SPC Y’s misconduct was dealt with is anything to go by, it is long overdue.

 

Kevin Donoghue is a solicitor and specialist in police misconduct compensation claims.

 

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.

 

What Happened at a Private Dinner Hosted by Liverpool Law Society

Photo of Kevin Donoghue, a solicitor and member of Liverpool Law Society.
Kevin Donoghue, solicitor.

By Kevin Donoghue, solicitor

On Wednesday evening I attended a private Dinner for Managing Partners in Liverpool. Liverpool Law Society President, John Ballam, and his fellow officers, hosted the event. Attendees included representatives from solicitors’ firms of all sizes. Bankers, consultants, and others who support the legal profession also came along. As well as an excellent dinner, this is what we got out of it.

Why I went to the dinner

I wear many hats in my role as Director of Donoghue Solicitors. I am lucky to get to:
  • Represent clients and supervise my colleagues in their roles.
  • Be responsible for the growth and management of my firm, and promote it through networking, media, and other ways where possible.
  • Help and support the legal profession and wider society.
The day-to-day duties that come with practising law, and running my practice, are a full-time job in themselves. So, I find time out-of-hours and at weekends for other things, such as Wednesday’s dinner.
I am not alone.
At my table I talked with Alison Lobb, the former President of Liverpool Law Society. She worked hard during her year as President by attending many events nationwide in an official capacity. I suspect she has some good tips on juggling commitments for Nina Ferris, next year’s President.

Purpose of Meeting

One of the reasons for the dinner was to talk about Liverpool Law Society broadly. The Society has over 2,200 members in practice, and is one of the largest local Law Societies in England and Wales.
 
The legal environment is changing quickly. We discussed things like:
  • What is Liverpool Law Society there for?
  • What more can it do to help members?
  • How can it stay relevant?
One area we focused on was training. 

Training Challenge

Everyone agreed that the legal training offered by Liverpool Law Society is excellent. Its pull means that leading experts in every field come to Liverpool to train members. These include Kerry Underwood, Helen Swaffield, and Dominic Regan.
 
But recently there has been a big change which affects training providers like Liverpool Law Society. Solicitors have moved from a points-based system of Continuing Professional Development to the new “Competency Standard”. This means that lawyers have more flexibility in how they keep up-to-date with the law and enhance their knowledge. The challenge for training providers is how to keep members coming to courses, conferences etc.. Everyone had comments and ideas.

What Next for Liverpool Law Society?

 
The dinner ran late into the evening. It was well worth it. The Society’s officers heard plenty of ideas which they will take to the General Committee. I was encouraged by the enthusiasm and creativity expressed by the group. Because the attendees were both business-owners and lawyers everyone had valuable input. The Society was formed 190 years ago. With the help of events like Wednesday’s dinner, it will see many more.
 
Kevin Donoghue is the Solicitor Director of Donoghue Solicitors. Contact him here.

In Praise of Appraisals

Photo of Kevin Donoghue, solicitor, who discusses staff appraisals in this blog post.
Kevin Donoghue, Director of Donoghue Solicitors, explains the benefits of staff appraisals.

By Kevin Donoghue, Solicitor Director of Donoghue Solicitors

Most of the time I write on my firm’s blog about actions against the police, news and politics, and legal issues.

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:

  • past performance,
  • efficiency improvements,
  • responsibilities,
  • aspirations, and
  • 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:

  • more responsibility,
  • 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.

What came across was the genuine satisfaction Donoghue Solicitors’ staff have in their work and workplace. As I explained here in this post about why we do not pay staff bonuses, having a “client first” philosophy benefits everyone involved. My parents taught me to treat others as I want to be treated. We all win, especially our many satisfied clients, when our people have the best  tools and working conditions to do their jobs.

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.

Why Facial Recognition Technology is Another Home Office Failure

Solicitor Kevin Donoghue investigates facial recognition technology used by the police here.
Kevin Donoghue, solicitor, discusses controversial facial recognition technology used by the police.

By Kevin Donoghue, solicitor

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.

This has been going on for years. As a result, Paul Wiles, the government’s Biometrics Commissioner, says there are more than 20 million facial images held by the police in various databases. That’s almost 1/3 of the UK’s population, and includes “hundreds of thousands” of innocent people. Chances are, police databases include biometric image data for you and/ or a member of your family.

Why does biometric data matter?

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.

Inconsistency

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.

Lord Justice Richards found the Metropolitan Police’s policy of keeping facial images to be unlawful. In RMC & Anor, R (on the application of) v Commissioner of Police of the Metropolis & Ors [2012] he said:

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.

He continued:

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 government disagreed.

It took 5 years for the Home Office to come up with a policy paper, Custody Images: review of their image and retention. The Biometrics Commissioner heavily criticised it. Among other issues, he noted a fundamental fallacy which undermines the government’s position:

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.

Parliament

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.

Police Ethics

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.

Despite this and the lack of public and parliamentary scrutiny, the Home Office plans to invest a further £5 million in the technology. Worryingly, this report says “Such technology will, initially, be used in law enforcement. In time, the scope of the deployment may extend to other public sector organisations, the Home Office said.”

(my emphasis)

Another Home Office Failure

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.

 

Read more from Kevin Donoghue on the Donoghue Solicitors blog.

 

Why is the Government’s CAST Department Ignoring Spit Hoods?

Photo of Kevin Donoghue, who asks why CAST is ignoring spit hoods.
Kevin Donoghue asks why the Government’s CAST department is ignoring spit hoods.

CAUTION: THIS BLOG POST CONTAINS COARSE LANGUAGE

By Kevin Donoghue, solicitor

I was recently interviewed on BBC Radio Leeds about West Yorkshire Police’s roll out of spit hoods to front-line officers.

You can listen to the interview on BBC iPlayer (fast forward through to 2 hours 6 minutes 50 seconds) or hear it below:

Before my interview Nick Ahad, the presenter, played some audio clips from an earlier programme in which callers expressed pro-spit hood (sometimes called “spit guard”) views, such as:

“I agree with them doing this because it’s disgusting to be spitting on anybody, they could be infected.”

And

“Bacteria found in saliva is a proven cause of spreading disease. Society has a duty of protection for our police force and the PC brigade should recognise this fact.”

Spit Hoods Agreement

Perhaps understandably, Nick’s first question to me was:

“Should police officers have to put up with being spat at?”

My response might have surprised Nick’s audience because I agreed with his callers that they should not, saying:

“Clearly not. No right thinking people would think that actually officers should be exposed to this risk of being spat at… it is an assault and individuals should and may face prosecution.”

And later:

“I’m not going to condone anyone spitting. I wouldn’t like to be spat on in my line of work so there’s no issue here in terms of should the officers have a form of protection against this.”

Role of the Centre for Applied Science and Technology (CAST)

Having dealt with that I moved on to something I suspect would worry Mr Ahad and his audience: the government’s failure to get involved.

As I have previously pointed out, in a Freedom of Information Act response the Government’s Centre for Applied Science and Technology (CAST) confirmed that it has not:

  • formally evaluated spit hoods
  • identified suitable models or types suitable for use
  • produced any risk, safety, ethical, medical or other relevant use-based assessments for UK police forces.

So what? Well, this is CAST’s job. The government body is part of the Home Office and describes itself as:

“…made up of scientists and engineers who develop technological solutions to fight crime. CAST works with academia and industry.”

CAST’s website shows that it has produced guidance for police forces on many “technological solutions to fight crime”, including:

and many more.

Spit Hood Roll-Out

Given CAST’s wide remit and the national publicity about spit hoods, it beggars belief that these potentially deadly tools have yet to be considered. People can die or suffer life-changing injuries when placed in spit hoods, so it seems the organisation has its priorities wrong in working on non-lethal equipment first.

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:

  1. 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.
  2. Police forces use different types of spit hoods. West Yorkshire and Surrey Police spit hoods cover the head. Leicestershire Police’s covers only the mouth, leaving the nose free.
  3. Use and training guidance varies. Surrey Police policy specifically stresses that officers must be aware of their obligations under Article 3 of the Human Rights Act, which says that “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” British Transport Police guidance does not.

 “Spit Guard” Abuse

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:

  1. 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
  2. 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.

 

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

 

Why We All Benefit When People Bring Claims Against the Police

Photo of Kevin Donoghue, a solicitor who explains why we all benefit when people bring claims against the police.
Here Kevin Donoghue, solicitor, explains why we all benefit when people bring claims against the police.

By Kevin Donoghue, Solicitor Director of Donoghue Solicitors

I recently wrote about why people bring claims against the police. Compensation is less important for many victims of police misconduct, especially when compared to:

  • restoring their reputations
  • 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.

TV appearance

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.

Bringing attention to these risks ought to raise public and police awareness about these potentially deadly tools.

Public Vindication in Civil Courts

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.

Police Confusion

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.’

(my emphasis)

This is an apparent misunderstanding of the law because it wrongly suggests that the burden of proof is on the claimant in false imprisonment claims. I wrote a blog post to clear up any confusion on the part of the police. I hope Merseyside Police read it and apply the well-established principles to save others from Mr Parry’s experience.

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 falsely claimed 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.

Justice Done

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.”

Kevin Donoghue is a solicitor who helps people bring civil actions against the police.

Why I Agree with the Police Federation About Compensation Claims

Photo of Kevin Donoghue solicitor, who considers the Police Federation position on compensation claims in this blog post.
Solicitor Kevin Donoghue explains why he agrees with the Police Federation about compensation claims.

By Kevin Donoghue, solicitor

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.

In the past, we have clashed when discussing spit hoods, tasers, and post-incident investigations, among other things.

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:

  1. 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.
  2. 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.
  3. 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.
  4. 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.

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.

 

Are police sexual exploitation cases being brushed under the carpet?

Photo of Kevin Donoghue, solicitor, who discusses police sexual exploitation.
Kevin Donoghue discusses police sexual exploitation.

By Kevin Donoghue, solicitor

In January Her Majesty’s Inspectorate of Constabulary (HMIC) reported on police sexual exploitation, also known as “police abuse of authority for sexual gain”. The police’s overseer found that, in the 2 years to March 2016:

  • 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:

  1. 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
  2. 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.

Kevin Donoghue is a solicitor who represents victims of police abuse of authority for sexual gain at Donoghue Solicitors.