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.

 

Three Ways Police Misconduct Victims are Denied Access to Justice

Photo of Kevin Donoghue, solicitor, who explains how access to justice is denied to police misconduct victims.
Kevin Donoghue, Solicitor, explains how police misconduct victims are denied access to justice.

By Kevin Donoghue, solicitor

On Tuesday, Baron Thomas, the Lord Chief Justice, felt compelled to state the obvious when talking about Gina Miller, the lead claimant in the “Brexit” hearings before the High Court. (Ms Miller wants the Court to determine if Parliament should have a role in triggering Article 50 of the treaty on the European Union.) Referring to people who disagree with her access to justice in this case, the Lord Chief Justice said:

“Before we start, there is just one observation I would like to make. The court was informed that the principal claimant in this case has been, again, subject to various emails and other communications. 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.” (my emphasis)

(Read the original comments in the full day transcript for 17 October here.)

I couldn’t agree more. In my experience as a solicitor who represents people in legal actions against the police I find that they are often subject to abuse and can be denied access to justice too. But unlike Ms Miller, my clients suffer abuse from people in authority, including the police and government. This is how.

1.      Abuse by police

In one of my recent cases my client Paul Smith (details used with permission) was wrongfully arrested and physically assaulted by police officers. (Read his story here.) The arresting officer attempted to cover up his misconduct by falsely claiming that Paul was “hostile and aggressive”. The police officer also said that my client ignored warnings that he would be arrested for a Breach of the Peace and that he struggled when arrested, so the police had to use handcuffs, PAVA captor spray, and a spit hood.

Fortunately, two police officers at the scene recorded the incident using body worn cameras. The footage was reviewed by supervisors at the police station and immediately exposed the arresting officer’s lies. Despite the clear-cut nature of the police abuse and misconduct:

  1. the arresting officer maintained his false version of events, even after Mr Smith was released, providing a statement which directly contradicted both my client and the police’s own body worn camera footage
  2. both the arresting officer and his employers, Sussex Police, failed to apologise for what the arresting officer’s supervisor described as “extremely unprofessional” behaviour which “brings the police into disrepute”
  3. after internal misconduct proceedings, the arresting officer was let off with “management action” (the lowest possible sanction) instead of dismissal.

Sussex Police’s conduct at various levels left Mr Smith with no alternative but to seek access to justice through litigation. Paul knew that this could be a risky and stressful process which could result in facing his assailants at trial. The force’s legal team’s handling of the case heightened this anxiety. They delayed matters by providing piecemeal disclosure of evidence and made inadequate offers of settlement. Despite Paul accepting £25,000 compensation, almost five times the original offer, the police’s treatment of this innocent man left a lot to be desired.

2.      Victim shaming

Joseph Goebbels, Adolf Hitler’s Propoganda Minister in Nazi Germany, is believed to have said:

If you repeat a lie often enough, people will believe it, and you will even come to believe it yourself.

This remains true today, especially when discussing the non-existent “compensation culture”.

In recent years the government has repeatedly shamed innocent victims to discourage them from bringing cases to court by peddling the myth of a “compensation culture”. For example, in the foreword to Lord Young’s 2010 report, “Common Sense, Common Safety”, then Prime Minister David Cameron said:

A damaging compensation culture has arisen, as if people can absolve themselves from any personal responsibility for their own actions, with the spectre of lawyers only too willing to pounce with a claim for damages on the slightest pretext.

This view was directly contradicted in the report by its author Lord Young, a die-hard Tory. He found no evidence of a “compensation culture”, saying that:

The problem of the compensation culture prevalent in society today is, however, one of perception rather than reality. (read more here)

Buying in to the myth, the media picked up on the Prime Minister’s inflammatory comments in the foreword rather than Lord Young’s more measured and accurate words, which were buried on page 19.

The bogus “compensation culture” came up again when I was interviewed on BBC radio discussing Essex Police’s claims payout record. In this follow-up blog post I suggested that the focus should be on the police’s conduct rather than compensation awards.

Sensing an opportunity to avoid scrutiny and save money, the police repeat the party line and pursue victim shaming in the media. For example, in 2013 Norfolk’s Chief Constable Phil Gormley said in a BBC Radio Norfolk interview that it was “disappointing” that the Police Federation supported one of his officers for bringing a compensation claim against her employers after an accident at work. He went on to describe a “corrosive compensation culture” which “generates a something for nothing attitude”.

By making victims of police misconduct feel guilty about fighting for their constitutional rights they suffer again. They feel ashamed for claiming compensation, and when they do seek access to justice their claims are denied and/or delayed, adding to their pain.

This cynical approach seems to be working. Compensation claims, including those against the police, are falling. For example, Essex Police paid out less in compensation claims to the public in 2014 than in previous years. While cost savings are welcome, the wider issue for society is that victim shaming to discourage people from seeking access to justice means that police misconduct will go unchecked, leading to more instances of police abuse.

3.      Government Policy

Perhaps more than anyone, the government has ensured that access to Her Majesty’s courts is not, to quote the Lord Chief Justice, “freely available to everyone”.

Changes to court fees mean that the civil courts (including the civil litigation courts which hear actions against the police) are now subsidising the criminal courts to fill a funding gap. This means that it costs far more to issue court proceedings and take claims to trial. The dramatically increased court fees include “enhanced” fees where the costs are greater than the hearing involved. The overall impact is a “poll tax on wheels” denying access to justice to those least able to afford it, resulting in a Conservative-led select committee describing court fees as an unjustified tax which prevents people from obtaining justice.

Despite this clear warning, court fees remain prohibitively high for many genuine claimants. Again, as with the “compensation culture” myth, even when fellow Conservatives contradict them, the government carries on regardless.

The increase in court fees comes on the back of the damaging effects of the Legal Aid, Sentencing, and Punishment of Offenders Act (2012). I explained here how this one law drastically changed the way civil compensation claims were brought before the courts, adding a layer of cost and risk which can put off legitimate claimants. One reason is that Qualified One Way Costs Shifting, which can give costs protection in personal injury claims, does not apply to all civil claims, and, in particular, actions against the police.

In March 2016 the Civil Justice Council, an Advisory Public Body responsible for overseeing and coordinating the modernisation of the civil justice system, recommended extending Qualified One Way Costs Shifting to all actions against the police (including those which do not directly involve personal injury such as malicious prosecution or discrimination claims). It said:

There are strong, if not compelling, arguments of principle – based on access to justice and on the asymmetry of the relationship between the parties – weighing in favour of extending the scope of QOCS protection (or something very similar) to claims against the police.

And

Principled arguments for not doing do not appear to have been made out.

Predictably, the government has failed to act, leaving many victims of police misconduct unwilling or unable to seek access to justice at court.

Access to Justice Denied

The Lord Chief Justice was right to challenge the people who abused Gina Miller, the claimant in the Brexit case, and attempted to prevent her seeking legal redress. I urge the police and government to recognise that his rebuke could equally apply to them.

 

Kevin Donoghue is the Solicitor Director of Donoghue Solicitors, a law firm which specialises in civil actions against the police.

Five Tips to Find the Best Solicitors to Sue the Police

Photo of Kevin Donoghue, solicitor, who has five tips to help you find the best solicitors to sue the police.
Kevin Donoghue, solicitor, has five tips to help you find the best solicitors to sue the police.

By Kevin Donoghue, solicitor

It can be hard to find the best solicitors to sue the police for you. Let me help with unbiased insider advice only a lawyer who specialises in actions against the police can give.

Unbiased? Really?

As you can tell from our website, we want everyone who might bring an actions against the police claim to be as informed as possible. But we know that giving you this guidance isn’t everything. You still have to deal with a solicitor one-on-one, and after reading these five tips you might decide to use another firm of lawyers. If you do, that’s fine by me because finding the best fit for you and your claim is the most important thing, even if that’s with another solicitor.

Why People Sue the Police

Suing the police is a decision you don’t want to rush because there’s a lot at stake. Depending on the case you might be seeking

  • compensation,
  • an admission of liability,
  • removal of your DNA and personal data,
  • correction of Police National Computer records,
  • satisfaction if your police complaint was ignored, or
  • some other kind of justice.

(Read our page on remedies in claims against the police to find out more.)

This makes “actions against the police” claims (as they are known in legal circles) unique. For that reason, your solicitor should have special skills and qualities.

Five Questions to Find the Best Solicitors to Sue the Police

Kevin Donoghue's five tips to find the best solicitors in actions against the police claimsIn my opinion, there are five things worth thinking about to get the best solicitors to sue the police:

  1. What do you need?

I’ve put this first on purpose. It’s important to find the best solicitors to sue the police for you. Some questions you might want to ask yourself are:

    • How am I going to pay for a solicitor to represent me? Am I eligible for legal aid (sadly, most people aren’t)? If so, do I want to use a legal aid lawyer? If not, does the solicitor offer conditional fee “no win no fee” agreements, or accept clients on a “private client” or before-the-event insurance funded basis?
    • Is it important to me that I use a local solicitor because I need face-to-face meetings during office hours? Or doesn’t the solicitor’s location matter because I am more comfortable with letters, email, phone, occasional skype meetings etc., most of which can be dealt with at other times.
    • Should I use a firm which only represents claimants? Or do I mind a firm which also represents defendant insurers?
    • Would I prefer a “big firm” experience (where I may have numerous lawyers handling my claim under the guidance of a supervising solicitor), or a “small firm” one (where I am more likely to work with an individual solicitor)?
    • Anything else that matters to me.

Tweet This: To find the best solicitor to sue the #police start by asking yourself what you need, says Kevin Donoghue, #solicitor.

2. Are the solicitors you’re researching genuine experts in bringing compensation claims against the police?

Start narrowing your options when you know what you need from your solicitor. Check out the Law Society’s Find a Solicitor service for suggestions. It lists over 150,000 solicitors, and the information held there can help you with your initial search. (For an example, here’s my listing.) You could also ask family, friends, and other lawyers (if you know any), look at your potential solicitors’ websites, social media profiles, read case reports, etc. Find out as much as you can online about their skills before making contact.

This matters because some so-called “experts” in actions against the police are anything but. Funding changes to personal injury law which came into effect on 1 April 2013 have resulted in some lawyers, who previously only dealt with accident claims, branching out into police claims. While there is often an overlap between the two (because claims against the police often include personal injury assault claims), the law in civil actions against the police is extremely complex and different.

You’ll want someone who really knows their stuff or you might risk losing your claim. (Read what happened to a man who initially instructed a personal injury firm to handle his actions against the police claim here.)

  1. Do you think you can you work with the solicitor?

Taking action against the police is not easy. The police are very well funded (by the taxpayer!) and their experienced defence lawyers are determined to protect the reputation of their police force employers and the officers involved. The law and sympathy from the courts is often on the side of the police. Cases can take years and the financial stakes are high.

Bearing this in mind it is important to find a solicitor you can trust and work well with. Your solicitor will assemble a team of lawyers, experts, and other professionals dedicated to helping you win your claim. You will be expected to play your part with helpful co-operation and support.

Ask yourself if you think you will get on with the solicitor, potentially for years. Again, a personal recommendation will help, as will your online research. Read their online reviews, blog (if they have one), and social media posts. If the solicitor has done media work (tv/ radio) see if you can get hold of that. (Read this blog post for more on personality issues. They go both ways.)

  1. What’s their track record?

Even though cases rarely get to court, ideally, you will want a solicitor who has won at least one claim against the police at trial. This shows that they can spot a good case, and have the courage of their convictions to back it all the way. If they haven’t won any cases at trial, consider their overall experience and record of success.

Again, you could research any cases they report on their firm’s websites. I also suggest that you do a “Google” search to see if they come up in media reports, as some actions against the police solicitors’ websites are not kept up-to-date.

  1. Are they members of the Police Action Lawyers Group?

The Police Action Lawyers Group (“PALG”) was set up in 1991 and is a national organisation made up of solicitors, barristers, and other lawyers. This voluntary group shares information and best practices to help lawyers working in this niche area of law. Regular communication ensures that members have access to the latest legal decisions, influence government policy proposals, share knowledge with other organisations (such as Liberty and Justice) etc. This helps PALG members represent your interests as a claimant more effectively.

PALG membership is not essential but, in my opinion, it’s a useful indicator of your potential solicitor’s level of interest and involvement in compensation claims against the police.

(Note: Don’t use the PALG website for research on members. It links only to the government’s legal aid adviser page. PALG members also include lawyers who do not offer legal aid. Read why here.)

More Help to Sue the Police

Armed with these tips and the information on our site, you will be able to

Good luck!

 

Contact me for help with your actions against the police claim on 08000 124 246 or complete the online form on the Donoghue Solicitors website.

 

Five Ways to Cut Police Complaints

Photo of Kevin Donoghue, Solicitor, who suggests how to reduce police complaints.
Kevin Donoghue, Solicitor, suggests how to cut police complaints.

By Kevin Donoghue, Solicitor Director of Donoghue Solicitors

Yesterday, the Independent Police Complaints Commission (“IPCC”) published its Police Complaints Statistics for England and Wales Report for 2012-2013 and 2013-2014. (The IPCC is responsible for overseeing the system for handling complaints against the police.)

The report is grim reading. It shows that police complaints are at record levels, the system for dealing with them is broken, and that meddling politicians made things worse. Here I propose some practical solutions to improve things for the police, the IPCC, and the public.

IPCC Police Complaints Report

The main points from the IPCC’s report, which you can read in full here, are:

  1. There were 34,863 complaint cases recorded in 2013-2014, a record high since the IPCC was established in 2004.
  2. This number is 15% more than 2012-2013, and 52% more than 2004. 38 forces recorded an increase in 2013-2014 compared to the previous year. 37,032 people serving with the police were subject to a recorded complaint, an increase of 6%. 88% of them were police officers.
  3. As complaint cases can include multiple allegations (e.g. police assault, false imprisonment and neglect of duty) the number of allegations recorded was 61,694 in 2013-14, a 10% increase on the previous year.
  4. People mostly complained about police neglect or failure of duty (30% of allegations). After the vague “other categories” (29%), complaints about incivility, impoliteness, and intolerance were next (15%), followed by assault (10%), oppressive conduct or harassment (6%), lack of fairness and impartiality (5%), and lastly, unlawful/ unnecessary arrest or detention (also 5%).
  5. The figures are slightly skewed by the broadening definition of a complaint to include “direction and control” in 2013-2014. This accounted for 4% of all allegations, and includes complaints about general policing standards, operational policing policies, organisation decisions, and operational management decisions.
  6. The IPCC use an allegation rate per 1,000 police force employees to compare allegations across all forces. The average rate increased in 2013-2014 to 251 allegations (compared to 228 in the previous year). The range was 98 to 436 allegations per 1,000 employees.
  7. In 2012-13 the IPCC dealt with 6,203 appeals. In November 2012 the appeals process changed so in 2013-2014 the IPCC dealt with 4,079 appeals, and chief officers in the police handled 3,134. Overall, appeals increased 16%.
  8. The IPCC compared statistics on how chief officers and IPCC staff dealt with appeals. In 2013-2014 20% of all appeals dealt with by chief officers were upheld. The IPCC upheld 46%, more than twice the amount.
  9. In 2013-2014 men made up 64% of complainants. 51% were White.
  10. In the “Discussion” section of the report, the IPCC refer to their own research from a survey in early 2014. They found that more people came into contact with the police in the previous 12 months than in 2011 (23% compared to 20%), and that they were less happy with their interactions (66% compared to 76% in 2011).
  11. They reported that people were more willing to complain (73% in 2014 compared to 68% in 2011), which may partly explain the rise in figures. But they noted that ethnic minorities are 9% less likely to complain that the White population and that young people are less likely to complain than people over 25.

In summary, the IPCC report shows that police complaints are increasing, that senior officers are quicker to dismiss them, and that the public is more dissatisfied with the police.

Police Complaints Plan

Nothing will change without action, so here’s a simple, five-point plan to cut police complaints:

i. Scrap the Police Reform and Social Responsibility Act (2011)

This Act, which came into effect on 22 November 2012, radically changed the police complaints procedure.

Now, except in very limited circumstances, if the complainant is dissatisfied with the outcome of the initial investigation, a “Chief Officer” in the same force will deal with the appeal unless the complaint itself is about a senior officer, it would justify criminal and/ or misconduct proceedings or a breach of rights under Article 2 or 3, or the complaint is referred to the IPCC.

The IPCC’s report shows how the police abuse this set up. As I note at point 8 above, the IPCC uphold more than twice as many appeals compared to chief officers (20% compared to 46%). Or, to put it another way, you have a reasonable 1 in 2 chance of a successful appeal to the IPCC, but a pathetic 1 in 5 chance with a Chief Officer.

With odds like that, it’s no wonder that people’s initial complaints are routinely dismissed before appeal. Chances are, the Chief Officer will agree.

Changing this system by taking Chief Officers out of the equation will help to put genuine independence back into the complaints process.

ii. Replace the internal Police Standards Departments (“PSD”) with independent IPCC units

It is often said that “Not only must Justice be done; it must also be seen to be done.”

Allowing a police force’s PSD, or internal investigations unit, to investigate their own officers is a clear conflict of interest. By taking the complaints investigation process away from them and putting it in the hands of independent investigators from the IPCC:

  • the public will gain confidence in the system;
  • complaints and appeals will be properly investigated;
  • senior officers will take the complaints process more seriously; and
  • serial offenders in the police will know that they can’t get away with repeated police misconduct.

The police and politicians may say this would increase costs and bureaucracy. Not so. If the PSDs are replaced with equivalent IPCC staff there would be no net increase. And finding these IPCC officers would be easy. Retiring police officers with good complaints records and a positive attitude to complaints could do the job, provided they didn’t investigate their own forces or officers they know.

iii. Incentivise police forces through financial rewards/ penalties

The present system has no rewards or sanctions to deal with police complaints properly. Linking funding to (independently vetted) complaints targets means that Chief Constables will prioritise police complaints, and by extension improve the conduct of their officers, which ought to lead to fewer complaints and instances of police misconduct.

Chief Constables could extend this system to their staff, so that they consider a police officer’s complaints record when reviewing salaries or promotions. That way the officers with the best records would be rewarded, which in turn would lead to a wholesale improvement in standards as those officers get promoted and instill a positive attitude in their staff.

iv. Compulsory annual training for all police staff and officers on the law, conduct, and complaints

The IPCC report highlighted the main reasons for police complaints (see point 4 above). “Police neglect or failure of duty” is the most common cause for complaint. This can take many forms, including mistakes made due to ignorance of the law. In my practice I regularly help people who have been unlawfully arrested or otherwise suffered police misconduct because police officers don’t know the law, such as in breach of the peace cases. (I wrote a blog post to explain breach of the peace law to police officers a while ago. Despite this I still receive many enquiries from clients who have been unlawfully arrested for this offence.)

Training to maintain expertise is common among the professions. For example, solicitors undertake a minimum of 16 hours “continuing professional development” a year. By ensuring that all officers attend regularly updated training courses on the law, conduct, and complaints they would be better able to serve the public. Training should include “soft skills” like civility and politeness. This would help cut complaints about the police’s high-handed and arbitrary behaviour.

v. Senior Police Officers to lead a culture change

On Monday BBC Radio interviewed me about the IPCC’s report. You can hear it here:

The interview focused on the rights of people to complain and, where necessary, claim compensation, as often the two go together. I stressed that we must protect our fundamental rights, such as the right to liberty. But if the police abuse our rights we should have the right to complain and, if appropriate, seek justice in the courts.

I regularly hear from people who have complained to the police after mistreatment. Because solicitors do not get paid for dealing with police complaints, most people try to deal with the police direct. The police’s failure to treat them and their complaint properly often leads people to contact solicitors like me who specialise in actions against the police. In some circumstances, like in this case study, we discuss other options such as claiming compensation from the police and seeking a formal apology. Often, the police’s apology, which is free and could have been given before getting solicitors involved, is more valuable to my clients than the money.

After my interview, listeners heard from Deputy Chief Constable Veale of Wiltshire Police. He made some curious comments. The Deputy Chief Constable said that Wiltshire Police’s 23% increase in complaints was “anticipated” because they take an “overly cautious approach to recording complaints”. Despite the increase he said that they provide an “incredibly good” service. Surely, if they were doing such a good job, fewer people would have cause to complain so their complaints record would be better than the national average of 15%?

The Home Office reported that, as at 31 March 2013, there were 129,584 full-time equivalent police officers in the 43 forces of England and Wales. In organisations this large and complex culture change comes from the top. Senior police officers need to focus on the cause of police complaints not the symptom. If police officers act within the law and treat people with dignity and respect then the public have no cause for complaint.  Concentrating on this core principle will cut police complaints, compensation claims, and improve the public’s increasingly negative view of them.

You would think that this would be obvious. But instead of getting their own house in order the police blame innocent victims of police misconduct. (I recently wrote about why attacking the non-existent “compensation culture” in police claims is nothing more than misdirection designed to deflect attention from the failings of the police themselves.)

DCC Veale’s answers, coupled with Norfolk’s Chief Constable Phil Gormley’s repeated blame of the “compensation culture” in this BBC interview, suggest that police management need to switch their focus. Chief Constables and their Deputies must stop blaming the non-existent “compensation culture” bogeyman, or patting themselves on the back for setting up committees, while ignoring the obvious criticism in the IPCC report and avoiding real change to the way they operate. It helps no one, especially the police themselves.

Effort

Public dissatisfaction with the police is higher than ever. It’s time to cut police complaints by addressing the way the police conduct themselves both before and after a complaint is made.

I appreciate that these five ways to cut police complaints involve a lot of effort, not least from politicians and senior police officers who have a vested interest in things staying as they are. But we, as the taxpaying public who are subject to the police’s conduct, deserve better. Let’s see if we get it.

 

If you want to claim compensation against the police contact me on 08000 124 246 or via my firm’s website. If you liked this article please click below to tweet it.[ctt tweet=”Kevin Donoghue, solicitor, suggests 5 ways to cut #police complaints (source: @donoghuelaw): http://ctt.ec/QHf21+” coverup=”QHf21″]

 

 

 

 

What Does a Police Solicitor Know About Ethics?

Picture of Actions Against the Police Solicitor, Kevin DonoghueBy Kevin Donoghue, Solicitor

I was disappointed to read that another police solicitor is to be investigated by the Solicitors Regulation Authority (“SRA”) about ethical breaches.

(In this article a “police solicitor” is one who represents police forces and/ or the Police Federation (the staff association for all police constables, sergeants, and inspectors) when dealing with inquests, inquiries, and other matters. They also defend civil actions against the police made by victims of police misconduct and brought by solicitors like me.)

The police solicitor in the story linked above represented the Police Federation and has been interviewed under caution after five Thames Valley police officers gave differing accounts of the death of a man during a search.

The victim, Habib Ullah, died six years ago in a car park in High Wycombe, Buckinghamshire, while police searched for drugs which they believed were in his mouth.

The Independent Police Complaints Commission (“IPCC”) initially investigated and received statements from the officers. But it re-opened the case after an inquest into Mr. Ullah’s death was abandoned when new evidence emerged during their accounts.

The IPCC decided to look at the discrepancies between the statements it originally received and the police officers’ accounts given during the inquest. It interviewed the five officers and the police solicitor under caution and then took the unusual step of referring the case to the Crown Prosecution Service, alleging perjury and perverting the course of justice.

The Crown Prosecution Service noted that the police officers’ statements had been altered but declined to prosecute. The IPCC is now pushing for gross misconduct charges to be brought against the police officers. It has promised a full report once the fresh inquest into Mr. Ullah’s death has concluded.

The IPCC has also referred details of the investigation and its findings directly to the solicitors’ governing body, the Solicitors Regulation Authority, for it to consider the police solicitor’s part in the matter.

Hillsborough Police Solicitor Conduct

This is not the first time that a police solicitor has altered police officers’ statements after the event.

Mr. Ullah’s case comes on the back of the ongoing Hillsborough investigations, where it is alleged that South Yorkshire Police’s solicitor helped the Force cover up the truth about the Disaster.

In the Hillsborough Report the police solicitor, an experienced partner at a high-profile firm, was criticised for the “review and alteration” of 116 police officers’ statements. It said that his review recommended to a South Yorkshire Police Chief Superintendent that the statements remove or alter criticisms of senior officers, but that derogatory remarks about the Liverpool fans should be kept (p.56, para 1.253). As a result:

“the removal of conjecture or opinion was highly selective and officers’ comments on the hostility of the crowd remained as a statement of fact.” (p.325, para 2.11.74)

This was to have far-reaching consequences which negatively affected the outcome of the inquests, Inquiries, compensation claims against the police, and the bereaved families’ long fight for justice. Twenty five years later facts are finally coming out in the Report and the Hillsborough Inquests which should have been known at the beginning. As a lifelong Liverpool FC fan and Kop season ticket holder, this injustice, partial responsibility for which can be laid at the door of the police solicitor retained by South Yorkshire Police, still rankles.

Police Solicitor Conflict of Interest

In the Hillsborough case, it could be argued that the police solicitor had to deal with a difficult conflict of interest: he was representing the best interests of his client (South Yorkshire Police as a whole) while also taking instructions from people who may have harmed it (the senior police officers responsible for the Disaster).

But while this may seem to be a difficult situation, the experienced police solicitor ought to have known how to act.

This is because solicitors, unlike barristers, are officers of the court. The full title of a solicitor is a “solicitor of the Senior Courts of England and Wales”. All solicitors are taught about the weighty obligations of this role during ethics classes at law school.

Solicitors have a duty to the court first, and their clients second.  In the House of Lords case Arthur J.S. Hall and Co. v Simons(AP)[2000] UKHL 38, [2002] 1 AC 615 Lord Hope described the obligations when referring to trial advocates, but this applies equally to solicitors who run cases before trial. He said:

“The advocate’s duty to the court is not just that he must not mislead the court, that he must ensure that the facts are presented fairly and that he must draw the attention of the court to the relevant authorities even if they are against him. It extends to the whole way in which the client’s case is presented, so that time is not wasted and the court is able to focus on the issues as efficiently and economically as possible.” (my emphasis)

In stating these points, the court was emphasising that the solicitor is independent from his client when deciding how best to perform his duties. This right is established in the SRA’s Ten Principles of Conduct which all solicitors are bound to follow. The first three are:

  1. uphold the rule of law and the proper administration of justice;
  2. act with integrity;
  3. not allow your independence to be compromised.

The fourth rule: “act in the best interests of each client” is the one that the police solicitor would, no doubt, say was guiding his conduct. But you can’t get there without ignoring the first three.

 Ethics in Legal Practice

In day-to-day practice, the Procedure Rules of Court dictate how the solicitor must fulfil his or her duties. They are clear and unambiguous. For example, when deciding what documents need to be disclosed in a civil case, a solicitor should refer to Rule 31.6 of the Civil Procedure Rules (“CPR”) which says:

31.6  Standard disclosure requires a party to disclose only–

(a) the documents on which he relies; and

(b) the documents which –

(i) adversely affect his own case;

(ii) adversely affect another party’s case; or

(iii) support another party’s case; and

(c) the documents which he is required to disclose by a relevant practice direction.

(my emphasis)

By reminding the solicitor that he is under a duty to disclose documents which might harm his own client’s case or support another party’s case, he is reminded that his primary duty is to the court, to uphold the rule of law, and assist in the proper administration of justice.

Equally, witness statements must be verified by a statement of truth, which states that the person providing the statement believes the facts stated in the document are true (CPR r.22.1).

If a witness knowingly provides a false statement without an honest belief in its truth, he or she can be committed for contempt of court (CPR r.32.14).

And if a solicitor is found to have played a part in a witness providing a false statement, he or she risks disciplinary sanctions from the SRA for breaching the Principles outlined above. For that reason the solicitor involved in the Hillsborough cover-up was referred to the SRA and the IPCC has also referred the police solicitor involved in the Ullah case to the solicitors’ governing body.

Police Solicitors’ Role in Institutional Disregard for Ethics

In both the Hillsborough and Ullah cases described here it is important to note that the solicitors involved in alleged ethics violations were external advisers. It would not be fair to tar all police solicitors with the same brush, but it is worth asking whether an institutional disregard for ethical conduct exists within the police. After all, officers’ statements were altered with their consent, potentially leading to miscarriages of justice.

The police solicitor has an important role to play when dealing with investigations and claims against the police, particularly with respect to their ethical responsibilities when reviewing adverse evidence.

By reminding themselves, and their clients, of their duties as officers of the court, they can avoid embarrassing and potentially career-threatening investigations by the SRA, and we can all benefit from the proper administration of justice.

 

Kevin Donoghue is a solicitor and director of Donoghue Solicitors Ltd., a law firm which specialises in civil actions against the police. Contact him on 0151 933 1474 or via the website https://www.donoghue-solicitors.co.uk.

 

 

 

Why the Police Should Change Their Body Camera Policy

Picture of Kevin Donoghue, Police Misconduct Claims Solicitor
Kevin Donoghue, Police Misconduct Claims Solicitor

By Kevin Donoghue, Solicitor
Yesterday the Metropolitan Police confirmed that they will trial the use of body camera technology with 500 front line officers based in 10 London boroughs, starting with Camden.

This follows successful trials of the equipment, which records what the officer sees and hears, in Devon & Cornwall and Bedfordshire.

If successful, the year-long trial will be extended further. It is anticipated that 10,000-20,000 Metropolitan Police officers could eventually use it.

Other forces are watching with interest and are expected to adopt body cameras if the test is successful.

Speaking to the BBC, the Metropolitan Police Commissioner, Sir Bernard Hogan-Howe, praised the introduction of the cameras, stating that they would help both in the fight against crime and to ‘hold us to account’.

It is expected that the body cameras will only be used when the police respond to incidents and during stop & search operations, rather than during day-to-day interactions. The Commissioner says this is because leaving the cameras on all the time would be ‘too intrusive’. To deal with the risk that vital evidence may be missed, every body camera will have a 30 second ‘buffer’ built in (where they are constantly pre-recording) so that when an officer turns the camera on, footage for half a minute beforehand is also included.

The limited use of body cameras was supported in a radio interview by Rachel Tuffin, the Head of Research, Analysis and Information at the College of Policing, who said that there are issues about data storage. The Met also plan to keep the footage for only 31 days (unless requested to keep it in evidence).

To counter suspicions that officers would deliberately not turn their body cameras on, the Metropolitan Police Commissioner said that ‘if that happens we will challenge them about it… and take action appropriately’.

He anticipated that in ’90 odd percent of the time’ body cameras would be used by the police officers when responding to incidents.

But is this good enough?

Why Wearing a Body Camera Puts Police on ‘Best Behaviour’

A year-long study of body cameras worn by the police in Rialto, Southern California, found that complaints against police officers dropped by about 88% and crucially, the use of force fell by 60%.

Why?

Because in the words of Corporal Gary Cunningham, “it has changed my behaviour and makes me more aware that someone’s watching”.

Significantly, in the Rialto study the officers were told to systematically record every interaction they had with the public. They were not, as with the Metropolitan Police, given a judgement call to make about whether an interaction with someone was routine or something more serious. As a result, they were used to doing everything ‘by the book’, leading to the dramatic reductions in complaints and use of force.

Picture of a police officer wearing a body camera.
Police Officer Wearing a Body Camera

Weak Arguments Against Body Camera Use

The Rialto study showed that filming every interaction worked. I disagree with Sir Bernard Hogan-Howe’s suggestion that the use of a body camera may be too intrusive given the obvious benefits in the fight against crime and dealing with police misconduct.

While I acknowledge that there may be privacy concerns, the Metropolitan Police have missed an opportunity by giving their officers the option of turning off body cameras during certain interactions with the public.

What happens when a seemingly innocent situation turns into something more? Without the requirement that body cameras must be used every time when dealing with the public, police officers may not turn on the equipment until it is too late, if at all, so crucial evidence of criminal wrongdoing could be missed. The 30-second ‘buffer’ will probably not be enough in many situations.

Also, if the cameras can be deliberately turned off when police officers abuse their powers, evidence of police misconduct will not be recorded. This would not be good for the Metropolitan Police, who may mistakenly defend a ‘rotten apple’ police officer in an expensive compensation claim.

And it is likely that if a member of the public complains about a police officer’s conduct and finds out that the body camera was not used, the lack of video evidence may be considered deliberate and sinister.

I also disagree with the suggestion by Rachel Tuffin that there are issues about data storage. I find this especially hard to believe. If the world’s video can be stored on youtube, why can’t the police access similar servers?

And, the Metropolitan Police’s plan to keep the footage for only 31 days (unless requested to keep it in evidence) is also questionable.

This time period is identical to that for police-held CCTV footage. Very often I am approached by people who have suffered as a result of police misconduct after 31 days have passed since the incident. They ask me to get the police’s CCTV footage to help claim compensation or make a police complaint. By the time they get in touch vital footage is often deleted.

I suggest that body camera footage be kept for 12 months. It would help clarify incidents, result in quicker resolutions, and save considerable costs dealing with complaints and police misconduct claims. As the footage is stored ‘in the cloud’ this should not cause a problem for the data server holders who can simply delete it after 12 months instead.

The Metropolitan Police are adamant that the body camera tests are intended to find out “how to do it, not whether to do it”. As a solicitor who specialises in actions against the police, I recommend that, for the sake of his own officers as well as the public, the Commissioner immediately change his policy to make sure that body cameras are used during every interaction with the public, and that the footage is kept for twelve months and not one.

If you want a solicitor who will help you to sue the police contact me, Kevin Donoghue, on 0151 933 1474 or via my firm’s website www.donoghue-solicitors.co.uk

Image credit: West Midlands Police on flickr.

How Police Misconduct Investigations Weaken Public Trust

Picture of Kevin Donoghue, Police Misconduct Claims Solicitor
Kevin Donoghue, Police Misconduct Claims Solicitor and Director of Donoghue Solicitors.

By Kevin Donoghue, Solicitor

A report in the Sheffield Telegraph  got me thinking about police misconduct in road traffic accidents involving the police.

It said that in the three years to March 2011, South Yorkshire Police cars were involved in more than 1,152 road traffic accidents. These road accidents injured 214 people, who received almost £750,000 compensation from the Force. South Yorkshire Police used 750 vehicles at that time, which also had to be repaired or replaced at public expense following road traffic accidents, making the true cost to the taxpayer far higher.

Remarkably, despite the high number of car crashes, only four police officers were disciplined for police misconduct for motoring offences in the accidents, with two more investigations under way.

So, according to South Yorkshire Police, only 0.3% of all the reported road traffic accidents involving their officers resulted in disciplinary action.

‘So what?’ you may ask.

The answer:  the effect on public trust in dealing with police misconduct.

Police Misconduct in Complaints Proceedings

Last year I blogged about South Yorkshire Police and wondered at the time if their claims that they have changed since Hillsborough were true.

(You can read my blog post here.)

In that piece I reported on the lengths South Yorkshire Police allegedly went to to cover up wrongdoing in the aftermath of the Hillsborough disaster.  According the Hillsborough Investigation Panel, the Force:

  • changed 164 junior police officers’ statements;
  • deliberately misinforming the media; and
  • fabricated a defence.

This was police misconduct on a massive, institutional scale.

In my blog post I explained that fabricating evidence is still an issue within the police and referred to one of my clients, Mr. D, who had been assaulted with CS gas by a Special Constable with another police force. The Special Constable gave a statement saying that my client head butted him to justify the use of this (potentially deadly) force.

The officer made his statement just half an hour after the alleged assault when events would have been fresh in his mind.

Mr. D was arrested on the basis of the Special Constable’s word alone, and was to be prosecuted for the serious crime of assaulting a police officer.

Thankfully, the Special Constable’s story unravelled when CCTV footage was found which showed that my client did not assault him. As a result, the prosecution against Mr. D did not go ahead and he instructed me to make a compensation claim against the police.

He made a formal complaint against the police which was conducted internally and supervised by a senior officer.

Rather than apologise and admit the police misconduct in providing a misleading statement, the Special Constable changed his story to say that the assault occurred off-camera.

This was also untrue but my client’s police complaint was still rejected.

So far as I am aware, no further action was taken against the Special Constable despite giving false statements which amounted to police misconduct. Instead, he was given ‘management advice’ about writing statements in future.

Police Misconduct covered up

I often represent clients with similar stories in their claims against the police.

Innocent people are prosecuted because of false or misleading testimony from police officers who are held in a position of public trust. All too often the police’s version of events is accepted without question.

This can lead to serious miscarriages of justice where innocent people are wrongly convicted.

But if my clients are lucky enough to avoid criminal convictions and then make complaints against the police about police misconduct, the police complaints procedure kicks in.

In recent years the procedure has changed so that, in all but the most serious of cases, police complaints are dealt with internally.

This means that an investigation into police misconduct by a potentially rogue officer is supervised by a senior police officer within the same police force.

In theory the senior police officer is impartial but the person making the complaint cannot be sure. Even if the senior officer is independent, what assurance can he or she give that they are not biased towards their own colleague?

Also, the evidence of the officer under investigation is taken into account, even if, like in my client’s case above, it can be shown to be inaccurate.

All this means that, in my experience, police complaints are only upheld in the most clear cut cases of police misconduct.

Photo of a police car road accident which may have led to a police misconduct investigation.
Did a police misconduct investigation take place after this road accident?

Police Misconduct in Road Traffic Accidents

Where police misconduct is shown, disciplinary proceedings against the officer(s) involved can result in various penalties, ranging from training or ‘management advice’ to dismissal from the force.

In road traffic accidents, the procedure is similar, but it involves an even closer personal connection with the police officers involved.

Here the system means that the police do not need to pretend that the investigating senior officer is impartial.

As Police Federation chairman Neil Bowles explained to The Telegraph: “All police road traffic collisions are treated very seriously, let alone if some cause casualties, and all are investigated by a supervisory officer.’ (my emphasis)

So, when investigations into police misconduct in road accidents are conducted by close colleagues, and the bar is set so high for police complaints and disciplinary proceedings, is it any wonder that less than half a percent of all the road traffic accidents reported by South Yorkshire Police resulted in disciplinary action against the police officers involved?

David Crompton, the Chief Constable of South Yorkshire Police, insisted in this BBC interview that his Force ‘was a very different place in 2012’ from the Hillsborough-era.

Can we really believe him?

Does he think that the present system of investigating police misconduct in road traffic accidents maintains public confidence in the police?

Until a more transparent way of investigating police misconduct is introduced, I don’t.

 

Kevin Donoghue is the Solicitor Director of Donoghue Solicitors, a niche law firm representing clients in their civil actions against the police and personal injury accident claims. Contact him for help with your police misconduct claim on 0151 933 1474 or go to the website: www.donoghue-solicitors.co.uk.

 

Image (cropped to fit): cc licensed ( BY ) flickr photo by infliv: http://flickr.com/photos/26616529@N03/3871157689/