With Police Spit Hood Trial Expansion, Democracy Dies in Darkness

Photo of Kevin Donoghue, solicitor, who writes about the Metropolitan Police spit hood trial expansion in this blog post.
Solicitor Kevin Donoghue considers the Metropolitan Police’s spit hood trial expansion.

By Kevin Donoghue, Solicitor

I was disappointed to read that the Metropolitan Police has expanded its police spit hood trial to include all custody suites across London. Spit hoods, or, as “The Met” likes to call them, “spit guards”, are made of nylon mesh with a plastic reinforced panel at the front. They are placed over a subject’s head to prevent the transmission of spit, mucus, vomit, and/ or blood.

The Metropolitan Police say that the original scheme was successful, but “too limited”. It was based in 5 custody suites in north-east London police stations, but will now run Force-wide.

This is a significant development as the expansion now affects over 8 million people in the Metropolitan Police area, and countless millions more who visit the Greater London area every year.

I wrote about the dangers of police spit hoods here. They can become impermeable when bodily fluids coat the inside of the hood. This makes it hard to breathe, as my client Paul Smith found out. And the use of spit hoods with other forms of restraint increases the risk of death or serious injury by “positional asphyxia”. Those concerns seem to have been ignored.

Evidential Issues with Police Spit Hood Expansion

I am also concerned about the lack of transparency in the decision to extend the police’s spit hood trial. The Met says that the pilot was “successful”, but puts forward no evidence in support of its claim. What does the Force consider a “successful” trial? That, unlike Jonathan Pluck, no one died in custody while wearing a police spit hood?

Also, it claims that:

“Spit guards are a nationally approved piece of police personal safety equipment and are already used by 22 forces across the UK.”

This sounds reassuring, but, like the police’s use of the phrase “spit guards” and not “spit hoods”, is it just spin?

“1. “Nationally approved”

The Government’s Centre for Applied Science and Technology (CAST) is responsible for testing police equipment. As I previously noted, CAST has not evaluated spit hoods, unlike other police equipment like body worn cameras and CS or PAVA (“pepper”) spray. I checked its website today. There is still no Home Office guidance about spit hoods despite the risks associated with them. I find it odd that CAST dedicates so much time to body worn cameras and not to “spit guards”. No one dies being filmed, but, as I explain here, people can, and do, when wearing a police spit hood.

So, who approved the police’s spit hoods nationally? What criteria did they use? Did they test and approve a particular type or brand of hood? Did they set standards for ethics, training, best practice, and usage monitoring? If no such official approval exists, on what basis does the Met claim that spit hoods are “nationally approved”?

2. “22 forces across the UK”

The Metropolitan Police says that spit hoods are already in use in 22 police forces across the UK. There are 48 forces in the UK. If the Met’s number is correct, the majority (54%) of our police forces do not use spit hoods.

Why not admit that the Force is in the minority?

Pressure

Police spit hood use is not more widespread because individual Chief Constables decide if they are appropriate given the risks. For example, in 2013 West Midlands Police chose not to use them after its Heath, Safety & Welfare Committee found that:

“whilst extremely unpleasant the likelihood of contracting communicable diseases from spittle is low.”

And the Hepatitis C Trust and National Aids Trust criticised those who promote the use of police spit hoods for creating an unfounded fear of contracting hepatitis C and HIV from spitting.

Despite this evidence, Chief Constables from police forces which have yet to introduce spit hoods find themselves under pressure from organisations such as the Police Federation.

Senior officers will be watching closely to find out how the public reacts to the Metropolitan Police’s spit hood expansion. The Met is by far the largest police force in the UK. If it escapes proper inquiry then it is likely that the remaining forces will follow suit.

Accountability

The motto of America’s Washington Post newspaper is “democracy dies in darkness”. Cressida Dick, the Commissioner of the Metropolitan Police, might want to consider those words and how she can align them with the 9 Principles of Policing. The Metropolitan Police is avoiding public scrutiny and accountability by its actions.

We live in a democracy, not a military state, but as I have previously discussed, sometimes it doesn’t feel like it. We deserve better.

Read more from Kevin Donoghue, solicitor, on the Donoghue Solicitors blog.

 

 

3 Urgent Changes Needed After Police Counter-Terrorism Raid

Photo of Kevin Donoghue, Solicitor, who suggests changes to police policy and procedures after the recent counter-terrorism raid.
Kevin Donoghue suggests urgent changes after the counter-terrorism raid in North London.

By Kevin Donoghue, solicitor

A while ago I asked if Cressida Dick, the new Metropolitan Police Commissioner, would uphold Sir Robert Peel’s 9 Principles of Policing. The Peel Principles underpin the police’s Code of Ethics, which include the requirement to “be diligent in the exercise of my duties and responsibilities” (Standard 6).

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.

(my emphasis)

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”.

Inconsistency and Delay

So what’s the problem?

It is likely that the Willesden raid was conducted by “SAS-style” Counter-Terrorism Specialist Firearms Officers.

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.)

Investigation Dispute

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

  1. 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.
  2. 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.

Proposal

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:

  1. Issue body worn cameras to firearms officers immediately.
  2. Insist that body worn cameras are required in all matters involving firearms officers, even covert operations.
  3. 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
  • the public

all know she is listening to their concerns, taking them seriously, and promoting the highest ethical standards within the Force. Win: win: win.

 

Kevin Donoghue is a solicitor who specialises in civil actions against the police. Read more from him on the Donoghue Solicitors blog.

Why Did the Boys in Blue Turn into the Boys in Black? (Part 3)

What are the consequences of police militarisation?

 

Picture of Kevin Donoghue, Solicitor, who discusses the National Decision Model. and its role in the police's Code of Ethics.
Kevin Donoghue, Solicitor, discusses the National Decision Model and its role in police militarisation.

By Kevin Donoghue, Solicitor

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:

  1. 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.

And

  1. Conduct

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”.

Image the the National Decision Model incorporated into the Police Code of Ethics.
This is how the National Decision Model works within the Police’s Code of Ethics.

Officers are expected “to apply the intent of the Code” to their decisions. But are they?

Is the National Decision Model Used?

As I pointed out in Part 2 of this blog post, Chief Constables have increasingly militarised the police.

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

  1. the Home Office has not tested or approved any models of spit hoods, set ethical standards for their use, or official training methods, and
  2. the West Midlands Police Force Medical Officer reported that the risk of infection from spittle is low
  3. 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.

Now watch the video of Judah Adunbi, the 63-year old race relations champion, being Tasered by Avon and Somerset police officers.

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.

 

Kevin Donoghue is a solicitor who specialises in civil actions against the police. Read more from him here.

Why Did the Boys in Blue Turn into the Boys in Black? (Part 2)

Photo of Kevin Donoghue, Solicitor, considers why the police became militarised in Part 2 of this 3-part blog.
Kevin Donoghue, Solicitor, considers why the police became militarised in Part 2 of this 3-part blog about “the boys in blue”.

By Kevin Donoghue, Solicitor

Why did the police become militarised?

Last week I described how the police have become militarised in the UK. Contrary to (then Home Secretary) Theresa May’s claim, they now “hide behind military style equipment”. But how, and why, did this happen? To answer that question, we need to look at a number of factors:

1. Terrorism

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.

Statistics show that “Western Europe is safer now than it has been for decades and is far safer than most other parts of the world” and that there had been no significant attacks on UK soil for more than a decade until the attack at Westminster. But despite the empirical evidence, in August 2014 the security service MI5 raised the UK threat level for international terrorism to severe, the second highest rating. This means that MI5 thought that an attack was “highly likely”for 2 and a half years before the Westminster incident. And in August 2016 (then) Commissioner for the Metropolitan Police, Sir Bernard Hogan-Howe warned that an attack in Britain is a matter of “when, not if”.

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 are not 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.

3. Technology

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”.

This only serves to reinforce the view that the police can use their potentially deadly weapons with impunity, particularly among black and mixed race people, who are disproportionately targeted by the police with Tasers.

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.

(This is the second in a 3-part series. Read Part 1 here.)

Donoghue Solicitors Shortlisted for Liverpool Law Society Award

 

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

By Kevin Donoghue, Solicitor

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

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

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

About the 2017 Liverpool Law Society Legal Awards

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

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

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

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

The 2017 Award Categories are:

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

Strict Judging criteria

Liverpool Law Society’s website says that:

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

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

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

Among other things, I explained:

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

I told the panel about:

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

2017 Legal Awards Ceremony

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

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

 

Read more from me on the Donoghue Solicitors blog.

 

 

 

Why did the Boys in Blue Turn into the Boys in Black? (Part 1)

Photo of Kevin Donoghue, Solicitor discusses militarisation of 'the boys in blue'.
Kevin Donoghue, Solicitor discusses militarisation of ‘the boys in blue’.

By Kevin Donoghue, solicitor

 

“our police have never, and will never, routinely carry guns or hide behind military style equipment.”

The Rt Hon Theresa May MP, speaking on 23 July 2015

“Home secretary authorises Taser X2 for police in England and Wales despite concerns over deaths and serious injuries”

The Guardian, 2 March 2017

 

Take a minute to think what members of the armed forces look like and the equipment available to them. What do they wear? Does it look like “tactical” dress? Do they wear body armour? Are they wearing military helmets? Are they armed with guns or other lethal weapons? Are they carrying kit which, if used in combination, could kill or seriously injure suspects?

Now think about what they are using to get around. Are they in armoured vehicles?

Lastly, ask yourself what techniques they use to deal with situations. Do they use methods which may cause disquiet in non-emergency situations? Under certain circumstances can they take lives?

Boys in Blue Go Black

If you answered “yes” to the above as well as describing our armed forces you have also just described Britain’s police. “Dixon of Dock Green” in his frock coat and whistle is long gone. Consider the following:

  1. Armed officers are an increasingly common sight on our streets, and there are more to come.
  2. Officers routinely wear body armour (stab or bulletproof vests, depending on their role). In crowd control situations, police also wear so-called NATO helmets, carry riot shields, and use batons, the footage below of the assault of Ian Tomlinson by PC Simon Harwood shows. Mr Tomlinson died as a result of internal bleeding after PC Harwood struck him with his baton and pushed him to the ground:

  1. The police are using more, and more powerful Tasers. The new X2 Taser will soon replace the outdated X26. It has a dual-shot capacity, laser guidance, and can be used to trigger a warning arc, which maker Taser calls the “arc of justice”. Tasers, described as “less-lethal” rather than “non-lethal”, have been involved in 17 deaths in the UK, including the tragic case of Andrew Pimlott. He died after suffering severe burns from the Taser “discharge-induced ignition of petrol”.
  2. Officers have access to CS and PAVA (a.k.a. “pepper”) irritant sprays, both of which the police describe as “riot control agents” despite their frequent use in other situations. They are prohibited weapons under section 5(1)(b) of the Firearms Act 1968. (The police have a lawful excuse to have them.)
  3. More forces are issuing spit hoods (a.k.a. “spit guards”) which have caused or contributed to deaths in custody, particularly when combined with CS or PAVA irritant sprays.
  4. The Metropolitan Police Service has a fleet of Jankel armoured vehicles, designed for “high readiness fire-arms support”, “public order/ riot control vehicle”, and “counter terrorist and hostage rescue intervention” among other things.
  5. Police officers use potentially deadly techniques during their work. When restraining people they use methods which can result in restricting a victim’s breathing and, in the worst cases, cause death due to positional asphyxia. (Read this case study to find out how one of our clients suffered due to this technique. Thankfully, he survived.) Forces also use mass containment techniques such as “kettling”, where the police keep people in cordons and prevent them from leaving, or having access to food, water, toilets, or medical facilities. The chair of the Metropolitan Police Authority’s civil liberties panel described one such kettle video as “appalling”, and encouraged protesters to make official complaints.
  6. Even police officer uniforms have changed from dark blue to black which a Conservative MP described as having “a kind of fascist, militaristic appearance”. The thin blue line should be re-named.

So, Bobby is now a Tommy. Theresa May’s comment that the police don’t hide behind military style equipment does not ring true. But why did the boys in blue turn into the boys in black, and what does it mean for us?

This is the first in a 3-part series. Next week we’ll consider why, and how, the police became militarised. Read Part 2 and Part 3 here (open in new tabs).

 

 

 

 

Will Cressida Dick Uphold Peel’s 9 Principles of Policing?

Photo of Solicitor Kevin Donoghue, who asks if Cressida Dick will uphold Peel's 9 Principles of Policing.
Solicitor Kevin Donoghue asks if Cressida Dick will uphold Peel’s 9 Principles of Policing.

By Kevin Donoghue, solicitor

This week Cressida Dick, CBE QPM was appointed as the new Metropolitan Police Commissioner, the overall leader of the Metropolitan Police Service. Dick, 56, is the first woman to hold the role, having previously served “the Met” as head of counter-terrorism, among other roles, before moving to her current job in the Foreign Office. She will take up the position after current Commissioner, Sir Bernard Hogan-Howe, retires. The new Commissioner will be in charge of more than 55,000 police officers, staff, and volunteers.

As Commissioner, Cressida Dick faces many challenges. The BBC’s Danny Shaw describes that, among other things, she will deal with budget cuts, rising violent crime, and political turbulence.

But there’s another issue he didn’t address: whether Ms Dick will uphold Peel’s 9 Principles of Policing, and in particular, resist the urge for further militarisation of the police.

Peel’s 9 Principles of Policing

Sir Robert Peel’s Metropolitan Police Act (1829) established a full-time, professional police force for Greater London. Every member of the Force was issued with “The 9 Principles of Policing”, which, according to (as she was in 2015) Home Secretary Theresa May, now underpin the police’s Code of Ethics and give us the doctrine of “policing by consent”, where the power of the police comes from “the common consent of the public, as opposed to the power of the state”. The 9 Principles are:

  1. To prevent crime and disorder, as an alternative to their repression by military force and severity of legal punishment.
  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.
  3. To recognise always that to secure and maintain the respect and approval of the public means also the securing of the willing co-operation of the public in the task of securing observance of laws.
  4. To recognise always that the extent to which the co-operation of the public can be secured diminishes proportionately the necessity of the use of physical force and compulsion for achieving police objectives.
  5. To seek and preserve public favour, not by pandering to public opinion; but by constantly demonstrating absolutely impartial service to law, in complete independence of policy, and without regard to the justice or injustice of the substance of individual laws, by ready offering of individual service and friendship to all members of the public without regard to their wealth or social standing, by ready exercise of courtesy and friendly good humour; and by ready offering of individual sacrifice in protecting and preserving life.
  6. To use physical force only when the exercise of persuasion, advice and warning is found to be insufficient to obtain public co-operation to an extent necessary to secure observance of law or to restore order, and to use only the minimum degree of physical force which is necessary on any particular occasion for achieving a police objective.
  7. To maintain at all times a relationship with the public that gives reality to the historic tradition that the police are the public and that the public are the police, the police being only members of the public who are paid to give full time attention to duties which are incumbent on every citizen in the interests of community welfare and existence.
  8. To recognise always the need for strict adherence to police-executive functions, and to refrain from even seeming to usurp the powers of the judiciary of avenging individuals or the State, and of authoritatively judging guilt and punishing the guilty.
  9. To recognise always that the test of police efficiency is the absence of crime and disorder, and not the visible evidence of police action in dealing with them.

(My emphasis in bold.)

The highlighted clauses emphasise that the police are not meant to be a military force, that physical force is a last resort which should be used judiciously, and that the police are merely members of the public, who rely on the public’s support to perform their duties.

Militarisation of the Police

Despite Peel’s clear guidance, police forces throughout the country, including the Metropolitan Police Service, are increasingly militarising the police by using military equipment and tactics.

Authorised Firearms Officers (“AFOs”) can be issued with pistols, carbines, shotguns and rifles. Depending on the operation officers can wear body armour, “NATO” helmets with visors, and carry riot shields. The Met also has a fleet of armoured vehicles, such as the bullet and bomb-proof Jankel trucks shown below. Much of this equipment can also be found in the armed forces. Many officers “on the beat” have Taser “stun guns”, carry CS or PAVA (“pepper”) incapacitant spray, and batons.

Photo of a Metropolitan Police Jankel armoured vehicle.
A Metropolitan Police Jankel armoured vehicle.

Also, the police are adopting military tactics, sometimes with deadly consequences. Nowhere is this more apparent than in how the Metropolitan Police have dealt with protests.

In 2009 protests about the G20 summit in London became notorious for the police’s use of “kettling”, the practice of keeping protesters penned-in without access to food, water, toilets, or medical supplies. One victim of the police’s tactics for dealing with the protests was Ian Tomlinson. He was not involved in the protest and was simply making his way home when he got caught up in the police operation. Mr Tomlinson died after being struck and pushed to the ground by PC Simon Harwood, a baton-wielding police officer in riot gear, as this footage shows. It took his family more than 4 years to get an apology from the Met, who eventually accepted using “excessive and unlawful force”.

In a more recent case, the current commissioner of the Metropolitan Police apologised after admitting that an officer used excessive force when he unlawfully sprayed CS gas at protesters. The police officer sprayed the gas within 1 metre, which is a breach of police rules because it can damage the victim’s eyes. Sir Bernard Hogan-Howe apologised for the use of CS spray which caused “intense pain, momentary loss of sight, and feelings of panic and fear.” He also apologised for the delay in resolving the protesters’ complaints. The officer was only disciplined for his unlawful use of force after the Metropolitan Police had dismissed two internal inquiries and the protesters made police complaints directly to the Independent Police Complaints Commission.

With this background Cressida Dick will soon have to consider aligning Peel’s 9 Principles with:

  • increasing the numbers of armed officers
  • calls for more officers to be issued with Taser stun-guns
  • the use of controversial spit hoods (a.k.a. “spit guards”).

1.      Arming more police officers

After the Paris terrorist attacks Sir Bernard Hogan-Howe ordered an increase in the number of armed officers by 600, bringing the total number in the Met to 2,800. This is an increase of 25%, and means that 7% of all Metropolitan Police officers will now be Authorised Firearms Officers (“AFOs”). That number is almost half of all AFOs in England and Wales, and contrasts with Metropolitan Police Federation Chief Ken Marsh’s view that “we are not an armed force at all”.

The Metropolitan Police Federation, which describes itself as “the staff association to which every constable, sergeant, inspector and chief inspector in the Metropolitan Police Service belongs – a total of more than 30,000 officers”, conducted a survey of its members about these issues. 11,000 members responded. In contrast with the Commissioner’s efforts to increase the number of AFOs, they were not overly supportive of the increase in armed officers, or arming the police in general. The survey found that

  • 57% did not think there should be more specialist firearm officers
  • 74% did not want all officers to be routinely armed
  • 12% said they would not carry a firearm under any circumstances.

2.      Deploying more Tasers

Despite the scepticism of Police Federation members about arming the Force, its chairman, Ken Marsh, intends to ask for more Tasers, citing another question in the survey above. In contrast to the respondents’ views on arming the police with more powerful weapons, 75% of respondents felt that all officers should have a Taser. This demand comes on the back of a recent increase in the number of Tasers available to the Force. According to the Evening Standard there are currently 4,197 Taser-trained police in the Metropolitan Police.

Increasing Taser use is problematic. Ken Marsh acknowledges Tasers are deadly weapons, as the tragic case of ex-footballer Dalian Atkinson showed. And I have previously explained Tasers can lead to miscarriages of justice because they cause a decline in cognitive functioning which is “comparable to dementia”.

3.      Introducing Spit Hoods

Spit hoods, (or, as the Metropolitan Police and Police Federation like to call them “spit guards”) are mesh fabric hoods put over a suspect’s head to prevent the transmission of disease by bodily fluids, such as spit and blood.

The Metropolitan Police planned to trial them in custody suites in October 2016, but cancelled the trial after listening “to concerns”.  The Force recently ended a consultation on the use of spit hoods and “hopes to pilot the use of spit guards for three months in five custody suites”.

Unsurprisingly, the Metropolitan Police Federation strongly supports the use of spit hoods.

As I explain here, Cressida Dick will need to balance the needs of her officers with the public. And she will need to be wary of the PR spin. Ken Marsh claims that a spit hood  “doesn’t affect your breathing at all”. Victims of spit hood abuse, such as my client Paul Smith (details used with permission), would disagree. The hoods can cause or contribute to deaths in custody, irreversible brain damage, and other physical and psychological effects.

Political Pressures on Cressida Dick

Ms Dick’s new role is political as well as professional. The Commissioner has a powerful voice and can help shape public policy and government opinion. Sir Bernard Hogan-Howe recently said in a speech about firearms officers:

“When people look at what we do, there should be less suspicion and more trust”

And

“…we can’t afford to have officers think twice because they fear the consequences of shooting someone. That’s how they get shot, or the public gets hurt or a criminal gets away with a gun.”

In effect: trust us, and give us a break if we get it wrong.

I disagree strongly with Sir Bernard. Police officers, especially ones with the power to take life or cause serious personal injury, must be subject to the law and not above it. If police officers think that firearms, Tasers, spit hoods etc. can be used with impunity they may be more inclined to skip less intrusive techniques, ignoring Principle 6 of Peel’s 9 Principles of Policing, which demands that the police:

“use physical force only when the exercise of persuasion, advice and warning is found to be insufficient…”

(My emphasis.)

And Ms Dick may personally find it hard to support her predecessor’s policies, particularly with respect to increasing the number of Armed Firearms Officers.

Her appointment is not without controversy. Despite high praise from Prime Minister Theresa May, Home Secretary Amber Rudd, and London Mayor Sadiq Khan, the public may remember her as the lead officer in charge of the botched operation which led to the killing of Jean Charles de Menezes in 2005. Mr de Menezes was mistaken by the Metropolitan Police for a terrorist. Armed police officers shot him 8 times at point-blank range while Mr de Menezes was sitting on an underground train.

Ms Dick was cleared of personal wrongdoing in a criminal trial, despite a finding against the Met of a breach of health and safety rules. But, before her appointment as Commissioner, Mr de Menezes’ family wrote to Sadiq Khan expressing concern about her suitability for the role. They implored the Mayor “to not be party to sending to our family and to the people of London a message that those in power can set aside such a dark stain on the record of the Metropolitan police force.”

The family’s pleas were ignored.

The issue of public confidence, especially in the highest levels of power in the Metropolitan Police, is an important one. As one commuter told the BBC when asked about increasing the numbers of armed officers, he thought it was a “political move” “for show”.

Given Cressida Dick’s past, if more innocent people die or are injured at the hands of her police officers this issue of confidence and trust may come back to haunt her.

Only by following Peel’s 9 Principles of Policing, being mindful of increasing militarisation of the police, and demanding the highest ethical standards from her officers, can Ms Dick seek to maintain public confidence in her role and the reputation of the Metropolitan Police Service.

 

Kevin Donoghue is a solicitor and specialist in civil actions against the police. He represents victims of police misconduct throughout England and Wales.

(Image credit: Cayetano on flickr)

5 ways restricting access to justice will hurt insurers

Photo of Kevin Donoghue, a solicitor who explains how restricting access to justice hurts insurers.
Solicitor Kevin Donoghue explains how restricting access to justice will hurt insurers.

By Kevin Donoghue, solicitor

A year ago I wrote to my local MPs. I explained why they should fight government proposals to raise the small claims limit to £5,000, which will potentially restrict access to justice to (up to) 95% of accident victims. Despite our best efforts, it seems that the government ignored these arguments, preferring evidence put forward by insurers that stand to profit from the change. In November 2016 the Ministry of Justice firmed up plans to raise the small claims limit. A short consultation period ended in early January, and formal plans are expected in spring. Insurers may be optimistic that the small claims limit will go up but, as the saying goes,

Be careful what you wish for; you may receive it.

Here are 5 reasons why insurers may regret their efforts to restrict access to justice for innocent accident victims.

They will lose:

1. Claimant solicitors as gatekeepers

Insurers hate to admit this, but claimant solicitors help them save time and money. How? By acting as gatekeepers. As qualified professionals, we are duty bound by a code of ethics to act in our clients’ best interests. Sometimes this means telling people something they don’t want to hear: that their claims are not worth pursuing. By doing so we protect our clients from the time, trouble, and cost of litigation. And we ensure potential defendants and their insurers are not troubled with unmeritorious claims.

The plan to increase the small claims limit to £5,000 means that this claims screening service will disappear for almost all personal injury claimants.

Without expert advice, most claimants will not know the strengths and weaknesses of their cases. They might be unduly confident about prospects of success and/or the value of their claim. And, because costs in the small claims track are very limited, the fear of losing financially will not deter people who simply want their day in court.

Insurers are process-driven, and will handle unmeritorious claims in the same way as they would any other case. This could mean paying lawyers to defend them in the small claims court knowing that, even if the insurers win, they will not recover anything close to their own legal costs from the losing claimant.

Alternatively, insurers may take an economic view and settle claims which otherwise would not be paid. Either way, it will drive up the number of claims made and cost insurers money to deal with and/or pay them.

2. Expertise on the claimant side which helps insurers handle claims cost-effectively

Claimant solicitors bring knowledge and experience to the claims process which enables defendant insurers to streamline their operations. Because solicitors like me have many years of training and practical experience we pursue claims efficiently and in accordance with the complex Civil Procedure Rules. We present only viable cases with winnable heads of claim. As we take cases to trial we plead them properly, file compliant court documents, attend hearings, meet deadlines, and represent our clients fearlessly, but properly, at trial.  By doing so we seek to present our clients’ cases in the professional manner they deserve.

As a result, insurers know that the claimant’s case will be properly presented and that they can deal with it in accordance with the Rules. This allows them to structure their departments efficiently, so that the right people are dealing with matters at the right time.

By contrast, cases brought by Litigants in Person or unqualified claims management companies are unlikely to be progressed with the same level of expertise or efficiency. Although it is true that anyone can pursue a claim at court, and if the small claims limit is increased many more will, the system can be challenging for the uninitiated. Without expert representation from a solicitor it is inevitable that some claimants will struggle. Judges will be expected to provide guidance and hand-holding, but can only go so far while remaining impartial. Defendant insurance representatives and their appointed solicitors will soon tire of direct contact with Litigants in Person, especially angry claimants who feel mistreated.

All this will increase time, money, and the stress on insurers’ claims handlers and lawyers.

3. Internal legal department profits

People usually contact their insurers immediately after a road traffic accident. This gives insurers early access to potential personal injury claimants’ details. In the past insurers took this information and passed it to preferred “panel” solicitors, for a referral fee. This was a highly lucrative business. For example, Direct Line made £21.1 million in referral fees in 2012. It’s easy to see why panel solicitors would pay so much. Liability in road traffic accidents is more straightforward compared to other areas of personal injury law. And, even if the insured driver was at fault, his or her passengers may be entitled to claim compensation.

But, for insurers, getting millions of pounds in easy referral fees wasn’t enough. When the Legal Aid, Sentencing and Punishment of Offenders Act (2012) (“LASPO”) came into force on 1 April 2013 it banned solicitors from paying referral fees.

Insurers quickly took advantage by taking claims in-house and setting up their own legal services divisions. For example, as this article explains, Direct Line insurance restructured the way they handled claims from both the claimant and defendant side to increase profits significantly.

Raising the small claims limit to £5,000 will hit insurers’ in-house legal services departments hard. Claimants will still want representation, and insurers will no doubt continue to offer it. But without the recovery of legal costs for most personal injury claimants, convincing accident victims to pay their own insurers to bring a claim will be a hard sell, and make it harder for those divisions to turn a profit.

4. Reputation and brand value

Despite a lack of evidence, insurers have effectively sold the government the “compensation culture” myth (read this to find out why). Justice Secretary Liz Truss described “a rampant compensation culture” when announcing the proposal to raise the small claims limit, singling out whiplash claims as “an easy payday”.

Some people may approve if raising the small claims limit cuts down on the number of whiplash claims. But these reforms go further. If the limit is increased to £5,000 genuine claimants in all areas of personal injury (not just whiplash claims) will be affected. This includes accidents at work, tripping and slipping accidents, and other accident claims. For example, someone suffering a broken collarbone after a fall at work might only be entitled to £4,290 compensation for the injury (from the Judicial College Guidelines, 13th edition). If they want compensation, the innocent accident victim may have to seek access to justice in the small claims court, and is unlikely to have expert legal representation.

Accidents at work can be complex. Claimants must navigate legislation, common law, and the claims process to seek compensation. Insurers routinely deny liability, often referring to technical points and case-law. They will be emboldened by the fact that they are dealing with claimant novices. They will fight claims that might otherwise have settled if the claimant had a solicitor.

But there’s a risk to this approach. In today’s connected world, insurers may find themselves on the receiving end of a social media backlash. In the example above it’s easy to imagine the innocent accident victim going on Facebook, Twitter, and Instagram, posting pictures of themselves in a sling, and holding a letter from an insurance company denying liability. Such posts could get plenty of likes, shares, and even mainstream media interest. It is unlikely that the insurer would get any sympathy.

Insurance is built on trust. Avoiding genuine claims undermines it. It is easy to see how negative publicity could lead to reputational damage and loss of brand value.

5. Government support

Some insurers have convinced the government to propose an increase in the small claims limit with the promise of a £40 saving on motor insurance policies. (Note that this will not be written into law so can be easily ignored.)

This possible, but unlikely, saving to the public is not nearly enough to cover the increased costs to the country caused by the decimation of this legal sector if the small claims limit goes up. As well as

  1. making countless genuine claimants fend for themselves in already-stretched courts, and
  2. losing the Treasury an estimated £1 billion in revenue,

a recent report estimates that 35,000 people are at moderate to high risk of losing their jobs in the law. Contrast this with a “key assumption” in the government’s impact assessment that:

Those providing services (lawyers, medical experts, Claims Management Companies) are assumed to find alternative activities of equal economic value.

This is wishful thinking to say the least, and by coincidence, is the same number estimated to go from the financial services industry if the UK leaves the EU in a “hard Brexit”. The government seems determined to push Brexit through, but can the country afford to leave the EU if it also guts the personal injury sector?

The government will quickly realise that it has been sold a pup and target those responsible: the insurance companies that stand to profit.

Mutual Benefit in Protecting Access to Justice

There’s still time to put an end to this madness. Insurers could realise that they stand to lose out and approach the government to discuss alternatives. Viable counter-proposals exist.

And the government could look at the mess Brexit is causing and decide that, at a time of such uncertainty, raising the small claims limit and restricting access to justice is too much for the country to bear.

I sincerely hope so.

 

Kevin Donoghue is the Solicitor Director at Donoghue Solicitors, an award-winning law firm dedicated to providing access to justice.

 

A Solicitor’s Review of 2016 and Predictions for 2017

Photo of Kevin Donoghue, solicitor who specialises in actions against the police, who reviews 2016 and gives predictions for 2017.
Kevin Donoghue, solicitor.

By Kevin Donoghue, solicitor

2016 has been a tumultuous year for the country as a whole, and civil litigation lawyers in particular. But what does 2017 hold? Here I look at three issues which affected us this year and make predictions for how they will play out in 2017.

1.      The proposed increase in the small claims limit

What happened in 2016?

You might think that the immense task of implementing June’s Brexit vote would be enough to keep the government occupied. Sadly not. In November, the Ministry of Justice announced plans to raise the small claims limit for all personal injury claims, and either scrap “whiplash” damages completely, or introduce a cap of £425 for them. As I wrote in February about the small claims limit, at a time of great political upheaval the government’s plan will make it harder for genuine claimants to recover their rightful compensation. It is expected to:

  • cost the country at least £1billion of much-needed revenue
  • deny 85% of injured people legal representation
  • hasten the collapse of the professional legal sector leading to mass unemployment.

Announcing the proposals, the Lord Chancellor, Liz Truss, seems to have bought into the myth of a “compensation culture”. (I wrote about how wrong this is here.)

Prediction for 2017

As this article in the Law Society Gazette points out, instead of solving the (non-existent) problem of a “rampant compensation culture”, these plans will make it worse. By taking ethical, professional, solicitors out of the personal injury sector claimants will suffer at the hands of unscrupulous claims management companies (CMCs).It seems that the government has simply forgotten about the suffering caused to innocent accident victims by the collapse of Claims Direct and The Accident Group, two high-profile CMCs.

And it is naïve for the government to think that raising the small claims limit will cut spam phone calls and text messages. Solicitors are banned from cold calling; claims management companies are not. CMCs, and those who help them with bulk text-messaging and robocalls, must be thrilled with the proposed changes. Expect more of the same.

The Ministry of Justice gave interested parties, including claimant lawyers, a (deliberately?) short period to respond to its consultation. It announced the proposals on 17 November and expects responses by 6 January 2017. It will confirm what will happen in April 2017. Insurance company lobbying means that they are well placed to get the increase in the small claims limit they crave, leading to even bigger profits because insurers will no longer pay genuine lower value claims. If implemented, it is unclear if any of the proposed changes require secondary legislation. If not, the government will proceed with its plans in 2017/ 2018.

2.      Continued attacks on access to justice

What happened?

The proposed increase in the small claims limit joins previous government policies which limit access to justice. During the Article 50 Brexit hearings, the Lord Chief Justice said, “We have in this country a civilised way of dealing with things, and it is simply wholly wrong for people to be abusive of those who seek to come to the Queen’s courts. If this conduct continues, those who do it must appreciate that the full vigour of the law will be used to ensure that access to Her Majesty’s courts are freely available to everyone.”

In this blog post I noted that these stinging words could also apply to the government.

Prediction

Previous and current government policies, particularly:

  • the proposed raise in the small claims limit,
  • failure to extend Qualified One Way Costs Shifting to all actions against the police claims, and
  • keeping prohibitively high court fees

will make access to justice harder to obtain, especially for innocent victims of police misconduct.

3.      Failing Police Culture

Throughout 2016 I wrote about various issues which I come across in my work as a solicitor dealing with civil claims against the police. Among other things I:

There’s a common theme in these posts: concern at the police’s culture and its attitude to public scrutiny.

a)      Police Complaints Reforms

What happened in 2016?

Prime Minister Theresa May’s disgust at, what she described as the police’s “contempt for the public”, led to the Policing and Crime Bill. The Bill, which is one step away from becoming an Act of Parliament,

would implement many of the proposals in the Government’s Improving Police Integrity consultation. It would reform the system of police complaints in the following ways:

  • A major role for Police and Crime Commissioners (PCCs) in the handling of police complaints
  • Changes to the handling of complaints aimed at making the system easier to follow and more transparent
  • Changes to the role and powers of the Independent Police Complaints Commission (IPCC) to reinforce its independence from police forces
  • The introduction of ‘super-complaints’ to allow certain advocacy groups and charities to raise concerns over troubling systemic issues in policing.”

As I pointed out, senior police officers brought these changes upon themselves by deflecting blame and failing to take responsibility.

Prediction

With the Policing and Crime Bill due to become an Act in 2017 the police complaints system will be under increased scrutiny. Its success will depend on the police embracing cultural change from the top down.

b)     Body Worn Cameras

What happened?

A University of Cambridge report found that police body worn cameras had a positive effect on policing. The lead researcher said, “I cannot think of any (other) single intervention in the history of policing that dramatically changed the way that officers behave, the way that suspects behave, and the way they interact with each other.” Chief Inspector Ian Williams of West Yorkshire Police also praised the many benefits of the “excellent” cameras, including increased detection rate, less time at court, and avoiding the need for vulnerable victims to give evidence at court.

Despite this, the system for body worn camera use is flawed and undermines public confidence in three ways:

  1. Instead of using body worn cameras which are constantly recording when on duty, police officers themselves control when the cameras are activated. Also, body worn cameras on the market today have a 2 minute pre-record function, but UK police only use (at best) cameras with a 30 second pre-record period. It is easy to imagine a situation where cameras are used selectively.
  2. Footage is kept for a very short period due to data protection issues. But that law could be used to justify deleting incriminating evidence against the police.
  3. Police officers involved in incidents have the power to edit footage. Editing creates a new, shorter file for use in evidence. But if the original footage is erased, leaving only the selectively edited file, innocent people could be wrongfully convicted.

Prediction

More police officers will wear body worn cameras as the technology and data storage becomes cheaper. The public will expect to see full footage when incidents occur and question its absence and selective editing. To maintain public confidence, the police will need to address these issues and consistently deal with disclosure of footage when matters are “sub judice” (not yet judicially decided).

c)      Spit Hoods

What happened?

Despite some police forces, such as Sussex Police, using spit hoods for years, these “barbaric tools” appeared on the country’s radar after the Metropolitan Police cancelled a trial of their use in police custody suites after a public outcry.

During 2016 I wrote about spit hoods here on our blog, and discussed their use in radio interviews.I:

  • noted that many forces already use, and misuse, the hoods, on children as young as 11.
  • quoted a Freedom of Information Act response which found that none of the spit hoods used by the police have been tested or approved by the government, unlike other forms of equipment such as body worn cameras.
  • described the delicate balancing act between police and public safety, and explained what happened when things went wrong. (In a detailed case study we described how our client Paul Smith (details used with permission) received £25,000 compensation after being wrongfully arrested and spit-hooded.)
  • considered the approach taken by the police officers’ union, the Police Federation. The Federation is keen to see spit hoods issued more extensively, and uses the more neutral term “spit guard” instead of “spit hood”. But that clever bit of PR spin does not hide the fact that people have died after being spit-hooded.

Prediction

The Metropolitan Police is consulting again on the use of spit hoods. After the consultation, it hopes to pilot the use of spit hoods in five custody suites in north-east London. As only 1/3 of police forces presently use spit hoods, the rest will be watching closely to see how the public reacts.

The police were caught on the back foot by the public outcry. I expect they will continue to seek public acceptance of spit hoods (referring to them as “spit guards”) and minimise the risks.

Final Thoughts on 2016 and 2017

2016 will long be remembered for its low points: the rise in hate crimes after the Brexit vote and Donald Trump’s election, Syria, the refugee crisis, terrorist attacks, celebrity deaths, and many other issues. We start 2017 with a blank slate. I urge the government and police to take their responsibilities as leaders seriously, and put the public first.

 

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

 

 

Should Police Spit Hood Equipment be Used on Children?

Photo of Kevin Donoghue, solicitor, who examines police spit hood use on children in this blog post.
Kevin Donoghue asks if police spit hood use on children is appropriate.

By Kevin Donoghue, solicitor

On BBC Two tomorrow (6 December) Victoria Derbyshire will discuss an alarming increase in the use of police spit hood equipment on children as young as 8 years old.

Spit hoods, or, as the police would prefer, “spit guards”, are mesh fabric hoods police officers use to protect themselves from infection when detaining suspects. They are classed as a use of force by a police officer so that when police spit hoods are misused they can lead to misconduct investigations and significant actions against the police compensation awards.

So far, the controversial masks have only been adopted by a third of police forces nationwide. It has been reported that some Chief Constables are worried that the spit hoods available for use by UK police forces are reminiscent of the hoods used on detainees at Guantanamo Bay. And it is interesting that the Metropolitan Police is consulting on their use in police station custody suites only, out of public view.

Police Spit Hood Ban Demand

The Children’s Rights Alliance for England, together with their counterparts in Scotland and Wales, have called for a ban on the use of police spit hood equipment on children, and the Independent Police Complaints Commission (“IPCC”) has expressed concern about their use. In one particularly disturbing case Child H, an 11-year old girl, was twice placed in a spit hood by Sussex Police officers while being detained for a total of more than 60 hours. Eleven police officers and one police staff member were found to have cases to answer for misconduct following Child H’s police complaint and the IPCC investigation.

I expect that the Victoria Derbyshire programme will discuss the police’s response to a Freedom of Information Act (“FOIA”) request made by the Children’s Rights Alliance. Although I have yet to see it, I understand that the response confirms a 250% increase in the use of police spit hoods on children aged between 8-15 years old. (From 8 recorded instances the previous year, to 20 this year). This figure may be an underestimate because Freedom of Information Act responses by the police can be incomplete. Sometimes forces simply fail to respond to FOIA queries. As the BBC reported, one estimate of police spit hood use was likely to be low because “some forces haven’t disclosed the numbers”. In other cases, such as in Sussex Police’s Child H case, the police officers themselves failed to correctly record their use of force. The IPCC said this was a “very worrying failure in that it indicates a lack of appreciation of [officers’] own accountability”.

The police have an understandable desire to ensure their own safety and promote public acceptance of “spit guards”. (I expect anyone interviewed from the police’s side to use that phrase rather than the more widely used and understood “spit hoods”. Read why this piece of PR spin matters here.) But despite the police’s concerns, in a civilised society should we allow them to subject children to these “primitive, cruel and degrading” tools?

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

Update: 6 December 2016

As expected, the Victoria Derbyshire programme discussed the use of spit hoods today. You can watch the discussion here (fast forward to the 1 hour 22 minutes 26 seconds mark).

Ms Derbyshire quoted figures provided by “a children’s charity” (I assume it was the Children’s Rights Alliance for England which produced this report on the State of Children’s Rights in England), which said that:

  • spit hood use on under-17s tripled in the last year (from 8 cases to 24)
  • “the true the number could be even higher”
  • in 2015 spit hoods were used on 12 children in England with the youngest being 13 years old.

In a harrowing story, a mother described how her 11-year-old daughter was restrained using a spit hood:

Mother: She just came shuffling. They had her under each arm and she had a spit hood over her head, and leg and ankle restraints on, and her head was hanging, and she had no, like, fight left in her any more, and they were literally dragging her with no shoes on. And then they put her on the floor.

Interviewer: That must have been very upsetting to see?

Mother: Yeah. I have nightmares about it.

Shamik Dutta, Lawyer at the charity Inquest, and Che Donald, Sergeant in Sussex Police and spit hood (a.k.a. “spit guard”) lead at the Police Federation, also appeared on the programme.

Arguing against the use of spit hoods, Mr Dutta said that their use is both “barbaric and unnecessary”, and that the majority of police forces do not use them. He explained that people can die when restrained face-down with handcuffs due to “positional asphyxia” (suffocation). Wearing a spit hood increases this risk because it is harder to see the suspect’s face. This makes it difficult for the police to know if the person is suffocating. And, because the victim can’t breathe they are unable to tell the police what’s happening.

Che Donald argued against this version of events, saying that the use of the “spit guard” reduces the risk. But when asked if he agreed that it was more difficult to see someone’s face with a spit hood on he said, “I appreciate that.” He also said that, because of the risk of assault by spitting on police officers, “I wouldn’t have a problem using it (a spit hood) on anyone under 17.”

Mr Dutta pointed out that spit hoods are used in conjunction with other forms of restraint. He argued that the use of the spit hood in addition to these other forms of restraint places suspects, especially children, at unacceptable risk of death or serious injury.

I have previously written about the risks Mr Dutta described. Click here to read more about them.