Why Facial Recognition Technology is Another Home Office Failure

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

By Kevin Donoghue, solicitor

Last week I asked why the Home Office was ignoring spit hoods, allowing individual police forces to roll them out on a piecemeal basis. (TL;DR it’s inexcusable, and people are being injured, or worse, as a result.) Another issue the government seems unwilling, or unable, to deal with is Facial Recognition Technology. Unlike spit hoods, it is not potentially deadly. But it matters. Here’s why.

Facial Recognition Technology used at Notting Hill Carnival

This year’s Notting Hill Carnival generated controversy as the Metropolitan Police Service trialled “mobile facial recognition software”. It was the second such trial at the Bank Holiday weekend event.

The police use Facial Recognition Technology to scan the faces of passers-by in public. The software can also use images taken in police station custody suites after arrest.

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

Why does biometric data matter?

Normally, police get biometric data from suspects during the “booking in” process at a police station custody suite. This includes a DNA sample, fingerprints, and head & shoulder digital photographs. This biometric data is stored on the Police National Database (PND) and other databases for future investigations. Also, and significantly for people who have been unlawfully arrested, it can be part of a police record check.

A record of arrest and biometric data can be devastating to employment prospects, as my client Nigel Lang found out. He lost his job working with vulnerable teenagers after his wrongful arrest, compounding a deeply distressing event. With my help Nigel recovered compensation and, importantly for him, cleared the police’s records of his arrest and biometric data.

Inconsistency

The police treat DNA and fingerprint data differently to custody photographs. Under the Protection of Freedoms Act (2012), DNA and fingerprints are automatically deleted if you are arrested and found to be innocent or released without charge.

Custody photographs are not.  Local police forces keep these images. They can add them to the Police National Database for use by all police forces in the UK. The police can manipulate the images by adding biometric data to them. This data, which is akin to a digital fingerprint, is also uploaded to police databases. Police can cross-reference it with social media images, CCTV, live video etc.. Unless the police agree to delete them, they keep database images for at least 6 years. But in practice the police keep images indefinitely because rules provide for retention until the subject is 100 years old.

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

I am not satisfied that the existing policy strikes a fair balance between the competing public and private interests and meets the requirements of proportionality. In my judgment, therefore, the retention of the claimants’ photographs in application of the existing policy amounts to an unjustified interference with their right to respect for their private life and is in breach of art.8.

He continued:

It should be clear in the circumstances that a ‘reasonable further period’ for revising the policy is to be measured in months, not years.

The government disagreed.

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

The review suggests that the retention and use of facial images is ‘generally less intrusive (than DNA or fingerprints) as many people’s faces are on public display all the time’. I disagree with that assertion. In fact for that reason the use of facial images is more intrusive because image capture can be done using cameras in public places and searched against government databases without the subject being aware. Facial images are no longer only used solely for custody purposes and image capture and facial searching capabilities have and are being used by the police in public places.

Further Legal Issues

As well as the court finding against the police and the Biometrics Commissioner’s criticism, forces must deal with other overlapping laws, including the:

  • right to respect for private life under Article 8 of the Human Rights Act. (As mentioned by LJ Richards in his judgment),
  • requirement to avoid discrimination under the Equality Act 2010, and
  • Data Protection Act principles. These include rules that personal data shall be processed “fairly and lawfully” and “shall not be kept for longer than is necessary”.

This ought to have been enough for the police to pause their facial recognition programs and reflect. And yet they continue to harvest facial images and add biometric data to them.

Parliament

It is hard to see why the police are pressing on with facial recognition technology.  It is likely to lead to more legal criticism and costly punishment.

Add to this the fact that the Biometrics Commissioner has criticised both the police and the Home Office for failing to carry out testing, procedures, and policies. He is especially concerned that Parliament has not been involved in the process to “reassure the public that their privacy is being properly protected”.

It can’t be right that:

  • retention of fingerprints and DNA is subject to the law, but
  • facial images and related biometric data are not.

Police Ethics

Cressida Dick, Commissioner for the Metropolitan Police, refused to respond to a letter from civil liberties and race relations groups asking her to pause this “shady enterprise” at the Notting Hill Carnival. She ignored them, which makes me wonder if she is truly committed to Peel’s 9 Principles of Policing, as I asked here.

In particular, I don’t know how police can use facial recognition technology without publicising it, or seeking Parliamentary approval, and still meet Principle 2:

To recognise always that the power of the police to fulfil their functions and duties is dependent on public approval of their existence, actions and behaviour and on their ability to secure and maintain public respect.

“Big Brother” Expansion

Liberty, the human rights organisation, found that the real-time facial recognition at the Carnival was a dismal failure, producing only 1 positive match over 4 days. It frequently provided false positives such as confusing men with women, and did not compensate for racial bias.

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

(my emphasis)

Another Home Office Failure

There are clear parallels here with the spit hood situation. The Home Office, through its Centre for Applied Science and Technology (CAST), should have considered spit hoods years ago. It still has not. Letting individual forces decide if, and how, to use these potentially deadly tools is a shameful failure.

The Home Office seems intent on repeating the spit hood mistake. To date, 3 police forces have introduced facial recognition technology without CAST oversight. And to invite tenders from technology companies, spending millions of pounds of taxpayers’ money while avoiding parliamentary scrutiny despite the demands of MPs, suggests a wilful disregard of government duties and the democratic process.

 

Read more from Kevin Donoghue on the Donoghue Solicitors blog.

 

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

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

CAUTION: THIS BLOG POST CONTAINS COARSE LANGUAGE

By Kevin Donoghue, solicitor

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

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

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

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

And

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

Spit Hoods Agreement

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

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

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

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

And later:

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

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

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

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

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

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

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

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

and many more.

Spit Hood Roll-Out

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

Without CAST’s official guidance individual police forces looking to use spit hoods must:

  • make their own risk and use assessments,
  • find suitable models, and
  • formulate training standards.

This leads to inconsistencies in spit hood use across police forces. For example:

  1. Only about half of all UK police forces use spit hoods. Those forces introduced them at various times and authorised use in different situations. As one Police Federation representative pointed out in an earlier interview, spit hoods have been used by Sussex Police since around 2010 and are issued to front-line officers. West Yorkshire Police has used them in custody suites since 2013, and announced this week that front-line officers will get them soon. The Metropolitan Police Service, the country’s biggest force, is presently trialling what it calls “spit guards” in custody suites only. This means that suspects can be spit-hooded by front-line British Transport Police officers at London’s train stations, but not by front-line Metropolitan Police officers on the streets outside.
  2. Police forces use different types of spit hoods. West Yorkshire and Surrey Police spit hoods cover the head. Leicestershire Police’s covers only the mouth, leaving the nose free.
  3. Use and training guidance varies. Surrey Police policy specifically stresses that officers must be aware of their obligations under Article 3 of the Human Rights Act, which says that “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” British Transport Police guidance does not.

 “Spit Guard” Abuse

This situation worries me as a solicitor who specialises in civil actions against the police because I help people who have suffered due to police misconduct, which can include the use of spit hoods. My client Paul Smith (details used with permission) suffered horribly when Sussex Police officers unlawfully arrested and sprayed him with PAVA (“pepper”) spray. During the arrest the police restrained him face down. He reflexively tried to clear his airways and was not spitting the foul-tasting and painful spray at them, but they spit hooded him anyway. This was a painful and traumatic episode, as the transcripts from police officer body worn video footage proved:

Paul Smith           I am on fucking fire

PC S                   Stay still, I sprayed you for a reason, because you were resisting arrest

Paul Smith          I need water

PC S                   We don’t have water

Paul Smith          I need water. I need water man

PC S                   We don’t have any water to give you

PC C                   You will get water when you go in your cell

Paul Smith          I am choking

PC C                   You’re not choking

Paul Smith          Seriously take it [the spit hood] off

PC C                   You can’t have it off your face

Paul Smith         Take it off, serious. Seriously, oh god xxxxxx

Spit Hood Consequences

Paul was one of the lucky ones, despite his horrendous ordeal. He survived, unlike Jonathan Pluck of Peterborough who died in police custody after being spit hooded. I helped Paul recover £25,000 compensation, but this was a life-changing experience. He “will never trust them [the police] again”.

As I explained to the BBC Radio Leeds listeners,

“…someone is going to suffer irreversible brain damage, asphyxiation, and potentially a fatality. I don’t want to have that conversation with a family because these [spit hoods] have not been properly thought through.”

This is not just an issue for members of the public. It also affects the police officers who use spit hoods. If I was a police officer I would be very reticent about using a spit hood without a full assessment and guidance from CAST first. Without this the police don’t know if the equipment is suitable and if their training is adequate. The risk of death and serious injury to suspects is real. No officer wants that or potential criminal, civil, and misconduct proceedings in which their use of a spit hood would be scrutinised in great detail.

Police Federation Campaigns

Despite this risk to their members, Police Federation representatives continue to campaign for spit hoods. Hailing this week’s announcement, West Yorkshire Police Federation Chairman Nick Smart said:

“This is about protecting the protectors as they go about their duties and keep the public safe.”

As I mentioned earlier, I have no issue with that. But he went further, saying:

“Anyone who decries this move or speaks out against it is simply putting the human rights of criminals who deliberately spit at police officers above the rights of police officers.”

I strongly disagree with this characterisation on two counts:

  1. Police officers and members of the public have equal rights to protection under the law. Legitimately raising concerns about spit hoods is not putting one side ahead of the other. This is not “Team Police vs Team Suspect”, and
  2. As Paul Smith’s case shows, putting a spit hood on someone does not make them a “criminal”. Suspects are innocent until proven guilty. Nick Smart’s inflammatory language, calling people “criminals”, is inaccurate and unhelpful.

Call for Action

Police Federations are akin to unions for police officers, from the rank-and-file up to Chief Inspectors. They are politically influential both within their own forces and on a national level, as Nick Smart pointed out when he said:

“The introduction of Spit Guards is something we as a local Federation have been lobbying both politicians and senior officers to review and agree to the use of for some time.”

I don’t know why CAST has ignored spit hoods so far. But given the concerns I, and many others, have with them, I urge Police Federations to use their political power to make CAST evaluate these tools immediately. Until then, Federations should pause their campaigns to roll-out spit hoods more widely. Police Federation members, who are also members of the public and could be wrongly spit-hooded themselves, should demand it.

 

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

 

Why 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.)

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).

 

 

 

 

3 Ways the Police Could Improve Their Body Worn Cameras Policy

Photo of Kevin Donoghue, solicitor, who explains 3 ways the police can use body worn cameras to restore public confidence.
Kevin Donoghue, solicitor, explains 3 ways the police can use body worn cameras to restore public confidence.

By Kevin Donoghue, solicitor

A University of Cambridge study confirmed that, where police body worn cameras are used appropriately, the number of complaints against police officers by members of the public reduced by 93%.

Despite this remarkable statistic, current police policy towards body cameras means that, UK-wide, police complaints are unlikely to be reduced so drastically. Here I explain how police policy towards body worn cameras undermines public confidence and some possible solutions to improve it.

What the University of Cambridge Study Found

The year-long Cambridge study, which included almost 2,000 police officers across six forces in the UK and United States, found that complaints against the police went from 1,539 in the previous year to 113 in the year of the trial.

Discussing the matter on the Victoria Derbyshire show, Home Affairs Correspondent Danny Shaw explained the reduction in complaints by saying that “It looks as though the police are modifying their behaviour. They know they’re being recorded every single step of the way, so there is some kind of subconscious decision to act more professionally.”

He also pointed out that the cameras may also have a calming effect on the public. People know the cameras are switched on so anything they do or say could be used in evidence against them.

The lead researcher, Barak Ariel, 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, one of the forces included in the study, described the body worn cameras as “excellent” and said there were many benefits, including less time spent at court, avoiding the need to call vulnerable victims to give evidence at court, and the increased detection rate.

Body Worn Cameras Policy Failings

It appears all sides agree that body worn cameras are a good thing for both the police and public. They help promote transparency, trust, and public confidence, which are essential in a society where the police work under Robert Peel’s “9 Principles of Policing”, the second of which is:

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.

And in my role as a solicitor who specialises in civil actions against the police I find body worn camera evidence invaluable. (For example, when proving police lies in one client’s case to justify misconduct.)

But there’s a problem: police and government policy on body worn cameras is falling short in three key ways, all of which undermine public confidence:

Issue 1: The police control when cameras are operating and their technical capabilities

In the Cambridge University study, the cameras were turned on all the time officers were on shift, (typically between 8-12 hours) except during agreed circumstances, such as breaks, travelling between calls for service, and when dealing with certain incidents such as matters involving serious sexual assaults.

By contrast, current policy detailed in the 2014 College of Policing guidance on Body Worn Video, gives officers the power to turn the cameras on and off at will. As the study’s authors point out, “Leaving the decision to switch on the camera during an encounter and not before officers begin engaging with a citizen may backfire (Ariel et al., 2016a). It also defeats one of the major purposes of the camera: to record the interaction from the officer’s perspective, from beginning to end, therefore providing crucial evidence of the decision-making processes that have led him or her to exercise use of force.”

I previously wrote about my concerns with giving officers this power. In that blog post I noted how Metropolitan Police Commissioner, Sir Bernard Hogan-Howe, defended the police’s approach. He claimed that leaving cameras on would be “too intrusive”.

I disagree. Sir Bernard Hogan-Howe’s concerns about leaving the cameras running at all times (except in specific circumstances) have been proven unfounded by the Cambridge University study.  And allowing police officers to control when they activate body worn cameras gives the impression that the cameras will be used selectively and undermines public confidence.

Also, while some body worn cameras have a 30-second pre-record function, to capture footage from before the officer starts recording, government policy from the Home Office Centre for Applied Science and Technology does not require this because “The National Policing Lead has decided that these features are not currently required.” (In 2014 the National Policing Lead for Body-Worn Video was Chief Constable Andy Marsh of Hampshire Constabulary.)

Pre-recording can be useful in showing police officer behaviour before an incident escalates. In my experience, things said and done in the minutes, not just seconds, before an arrest can be extremely valuable in proving liability in police misconduct cases.

It can’t be right that the police themselves set policy on important camera features such as this. The pre-record technology is widely available. All forces should use it and manufacturers should be pressed to produce equipment with at least 5 minutes of pre-recording built-in. Axon, a division of Taser, the manufacturers of “stun guns”, already sell a body camera with a 2 minute pre-record feature. Given reductions in the cost of memory a 5 minute pre-recording feature is not unrealistic.

Not using cameras at all appropriate times and with sufficient pre-recording features gives the impression that police forces have something to hide.

Issue 2: Police keep body camera footage for a very short period

In my earlier blog post I noted how Rachel Tuffin of the College of Policing said that there were issues with data storage. As a result, guidance from the College of Policing means that forces keep body worn camera footage for up to 31 days, the same length of time as police station CCTV video. The College of Policing suggests this is a maximum length of time following the case of Wood v Commissioner of Police for the Metropolis (2009). Some forces may delete footage sooner.

On the whole, the public is unaware of the short window of time to request that this (potentially vital) evidence be preserved. As a result, complaints and claims against the police can be harder to investigate.

Despite the data protection issues, given the significant benefits, it’s time the police invest in technology to store footage for at least 12 months.

Issue 3: Police have power to edit footage

Another issue highlighted in the Victoria Derbyshire programme was that the police officers wearing the body worn cameras have the power to edit footage themselves. As my client’s case shows, some officers will not care what the footage shows, but others might. While any edit creates a new file, rather than deleting the original footage, it’s easy to imagine a situation where the original footage is mysteriously lost or erased, leaving only the edited (and favourable to the police) footage available.

To avoid suspicion, officers should not have the power to edit their own camera footage unsupervised.

Recommended Action

It appears that the University of Cambridge study was an unqualified success, both in terms of its application and results. If the police nationwide are truly committed to reducing complaints and restoring public confidence, I urge forces to implement these common-sense recommendations:

  1. Ensure body cameras have a 5 minute pre-record feature and that they are switched on at all times when officers are on shift, except in certain circumstances described above
  2. Extend the video retention period to at least 12 months
  3. Do not allow officers to edit their own body worn camera footage unsupervised.

Chief constables have all the proof they need, and, if they put their minds to it, the means to make things happen. Now it’s time to act.

Read more about civil actions against the police on my firm’s website.

Will Police Take Complaints Seriously With Theresa May in No.10?

Photo of Kevin Donoghue, solicitor, asks if police complaints will be taken seriously with Theresa May as Prime Minister.
Kevin Donoghue, solicitor, asks if police complaints will be taken seriously with Theresa May as Prime Minister.

By Kevin Donoghue, Solicitor

Today, after an unprecedented few weeks in politics, Home Secretary Theresa May becomes Prime Minister. Her public criticism of the police, especially in a scathing speech to the Police Federation in 2014 in which she said some officers displayed “contempt for the public”, raised hopes that this would lead to a cultural change in policing. Sadly, it didn’t work, so now Mrs May’s Policing and Crime Bill is proceeding through Parliament to try to force change. In particular, our politicians will debate the police complaints system as follows:

Police complaints and inspection

Part 2 of the Bill 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.

But will this legislation be enough to change the police’s attitude to complaints? Here’s my view.

One Client’s Experience of the Police Complaints Process

From The Sunday Post: A Northumbria Police spokesman said a full investigation had been carried out into claims of excessive force and unlawful arrest. That probe cleared the officers of any wrongdoing.

Gary Wilson, interviewed on BBC Radio 4: They basically said I was a liar, you know.

My client, Gary Wilson (details used with permission), was featured in a Radio 4 report “Police Complaints: A Fair Cop?” (listen to it by clicking on the link). In the interview he explained how Northumbria Police mistreated him.

Gary was trying to help the police coax his cousin off a roof when officers decided to arrest him for a bogus breach of the police. They assaulted, unlawfully arrested, and falsely imprisoned him for two days, before he was released at the Magistrates’ Court. He missed his son’s second birthday and was upset at his treatment, so made a formal complaint.

As usual for this kind of matter, the complaint was dealt with by Northumbria Police themselves (read our page on complaints against the police to find out why).

Unsurprisingly, Northumbria Police’s investigators sided with their own officers. Gary contacted me for advice because the police refused to apologise. I specialise in actions against the police and helped him win £7500 plus full legal costs. (Read how here.) Despite this settlement, he still feels aggrieved. As he pointed out in the interview, “I’m still waiting for that apology today.”

Fundamental Problems

It seems that, for the police, sorry is the hardest word. This is explained in the rest of the Radio 4 report which addresses many issues, including:

  • Just 1 in 10 of the 35,000 police complaints are upheld (on the latest figures when the report was filed)
  • Professor Steve Savage of Portsmouth University thinks that the police complaints system is different to consumer complaints handling because it is rooted in the police disciplinary process so “that there’s still an ethos that what the complaints investigation is about is determining blame” and “the concern is, is there evidence that this officer can be potentially responsible for misconduct?”. This different (and high) standard means that even legitimate complaints against the police are dismissed.
  • The Policing and Crime Bill proposes an overhaul of the police complaints system by putting investigations in the hands of Police and Crime Commissioners. One Commissioner said this will not work without giving them sufficient powers and resources to investigate, secure evidence, interview officers etc. (powers which the police’s Professional Standards Department (“PSD”) investigators presently have).
  • The Independent Police Complaints Commission (“IPCC”) uphold nearly half of all complaints when people challenge the PSD’s findings. These aren’t just to make complainants feel better. Dame Anne Owers, Chair of the IPCC explained that “we rarely uphold complaints just on technicalities”.
  • Dame Owers bemoaned the current system which requires the IPCC to refer complaints back to the same police force for re-assessment when it upholds an appeal. She said: “sometimes they get it wrong in the second place as well. And at the moment the system can produce a kind of roundabout where it’s just going backwards and forwards.”
  • She also complained that when the IPCC compels a police force to hold a misconduct hearing against one of their own officers, the force itself presents the case. The conflict of interest is obvious, and she says “That problem will only be resolved if we ourselves can present our own case.”
  • The police, represented in the Radio 4 report by Deputy Chief Constable Alan Goodwin (National Police Lead for complaints and misconduct), agreed that “in an ideal world” the police would not investigate complaints against their own staff.
  • But on other matters he was less forthcoming. For example, the DCC didn’t “want to get into a technical discussion about what an appeal actually constitutes”, when he could have simply referred the reporter to the Appeals section of Schedule 14 of the Police Reform and Social Responsibility Act 2011).
Photo of Theresa May, Prime Minister.
Theresa May, Prime Minister.

Police Culture

In February 2015 I wrote about the broken police complaints system in my blog post Five Ways to Cut Police Complaints. I was struck by the statistic that “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.” DCC Goodwin said in the Radio 4 report that this “can simply be a difference of opinion”. Maybe in some cases; but surely not all?

His comments in the radio programme fit with my earlier observation that senior police officers seem to focus on the cause of police complaints (the system) and not the symptom (poor policing standards and outdated attitudes). In effect, they try to deflect attention from their own failings, for example, blaming “an overly cautious approach to recording police complaints” and the non-existent “compensation culture”.

The police’s attitude to complaints is an ongoing cultural and systemic problem which successive governments have failed to manage, despite legislation. A year and a half after writing the “Five Ways” post I have seen no evidence of change. I hope to be proven wrong, but doubt the influence of the Policing and Crime Bill or the new Prime Minister will change police culture to improve the way they deal with complaints.

 

 

Read our page about making complaints against the police for more information, or contact us via the online form on this page.

 

Image credit: Home Office

Do Taser Assault Victims Suffer Miscarriages of Justice?

Photo of Kevin Donoghue, solicitor. Taser weapons have serious effects and their use may lead to miscarriages of justice.
Kevin Donoghue, solicitor, considers if Taser stun-guns result in miscarriages of justice in this blog post.

By Kevin Donoghue, solicitor

A recent study in America suggests that Taser “stun-guns” cause short-term dementia-like effects in victims.

This raises questions about their use and, in particular, whether miscarriages of justice occur when the police question suspects shortly after using the weapons.

Independent Taser Study

The study, reported by Drexel University, and funded by the U.S. Department of Justice, is reported to be the first time the Taser weapon has been tested in a clinical trial outside of those set up by Taser International, the company that develops, makes, and sells them.

142 young people were tested. They were separated into four groups:

  1. 37 people in the control group did nothing
  2. 32 hit a punching bag (to simulate the excited physical state they might feel during a police incident)
  3. 35 people received 5 second Taser shocks
  4. 38 hit the punching bag AND received the 5 second shocks.

One of the report’s authors, Robert J. Kane, PhD, said that the participants were subjected to a “battery of cognitive instruments” (tests) at various times:

  1. At the preliminary screening stage
  2. Right before treatment exposure (varied depending on group)
  3. Immediately after treatment
  4. One hour later
  5. One week later.

Their test scores were compared within their own groups, and across all four groups, to compare any changes in cognitive functioning.

The most significant result came on the Hopkins Verbal Learning Test (“HVLT”). This test assesses verbal learning and memory and can show anything from mild learning difficulties to dementia. The study participants were asked to learn, then recall, a series of 12 words over different times.

Before using the Taser, the average HVLT score for each group was 26, just above the national average. Afterwards, a quarter of both Taser groups (3 and 4) scored below 20, giving them the average cognitive functioning of 79-year-old adults. The decline in cognitive functioning was said to be “comparable to dementia”.

The Taser caused statistically significant reductions in verbal learning and memory for, on average, less than an hour. And Michael D. White, PhD, who co-authored the report, said that “our test administrators could clearly observe the difficulty many participants had with the HVLT after Taser exposure.”

As well as these scientifically provable changes, the researchers found that the use of a Taser also caused “significant negative change in several subjective state self-measures, including concentration difficulty, anxiety level and feeling overwhelmed”.

Dr. Kane said, “Being shocked had a traumatic effect on some participants. Some were emotionally debilitated by the experience.”

He also pointed out that the test subjects were not typical of Taser assault victims. They were young, healthy, used to taking tests, drug and alcohol-free. They were also in a controlled environment (a hospital) with medical staff on hand, and understood that they were taking part in a scientific study.

He said, “We would expect ‘typical’ suspects – who may be high, drunk or mentally ill and in crisis at the time of exposure – to experience even greater impairment to cognitive functioning as the result of Taser exposure.”

Consequences of Taser Use

The results of the study have significant implications for the public, police policy, and judicial procedures.

Tasers are used by law enforcement world-wide, including the UK. The Metropolitan Police use the X26 Taser and describe on the Force’s website how “When fired Taser delivers a sequence of very short high voltage pulses that result in the loss of voluntary muscle control causing the subject to fall to the ground or freeze. In the X26 the voltage peaks at 50,000 volts…”.

I previously wrote about the worrying increase in Taser use here: How Police Taser Use is Failing Us All. I was concerned when Chief Superintendent Paul Morrison, Head of Operations Command at Sussex and Surrey Police, discussed a case involving the use of a Taser on 14-year-old girl and described the Taser as “a low level of force” which was preferable to a baton.

Nothing could be further from the truth. Tasers are potentially deadly weapons and should only be used as a last resort. They have serious physical, emotional, and (we now know) mental effects.

Miscarriage of Justice

In addition, the Drexel University report opens up another potentially life-changing risk: miscarriages of justice.

The police must read the following caution before questioning someone about a crime:

“You do not have to say anything. But, it may harm your defence if you do not mention when questioned something which you later rely on in court. Anything you do say may be given in evidence.”

That’s 37 words, more than three times the number in the Hopkins Verbal Learning Test which the Taser study used to test cognitive impairment. If fit, healthy, sober, above-average adults had dementia-like effects trying to learn and recall 12 words after being Tased, what chance would they have with 37? More importantly, how would the “typical” suspects mentioned by Dr. Kane cope?

Having a caution read to you is not the same as understanding it.

The Taser victim may:

  • not understand the caution or be able to think it through;
  • waive their rights to speak to a solicitor or have one present in an interview;
  • be more open to persuasive interview techniques; and
  • give inaccurate information.

Ultimately, the evidence gained might wrongly prove their guilt at court, resulting in a wrongful conviction and miscarriage of justice.

Custody Record Comments

After using a Taser, the police do not have to wait a minimum period of time before questioning someone. Provided an officer has read the caution to a Taser victim suspect, the police can start the interview immediately.

Because the majority of Taser victims in the study recovered from the cognitive effects within an hour, the report’s authors suggest delaying the interview to avoid potential miscarriages of justice. “What would it cost police to wait 60 minutes after a Taser deployment before engaging suspects in custodial interrogations?” they say.

That alone might be good enough in the USA. In the UK we have other issues.

This is because, in my experience as a solicitor who specialises in civil actions against the police, it is unlikely that a Taser victim would be interviewed within an hour. After being Tased, arrested, cautioned, taken to a police station, booked in, processed, and seen by a medic, more than an hour would normally have passed. The majority of people would have shaken off the dementia-like effects.

But the Custody Record is often filled out within that time, as it is started when the suspect is presented before the Custody Officer at the police station. It is a very powerful tool in the prosecution’s hands as it is a contemporaneous record which can be relied upon at court.

And it is more than just a record of detention. There are two sections where the suspect’s comments are recorded:

  1. The first section, “Arrest”, records “Comments made when facts of arrest explained”. These comments, made by the suspect immediately after the caution, are noted by the arresting officer (usually in the pocket notebook) and read to the Custody Officer with the suspect present.
  2. The second relevant section of the Custody Record (“Detention”) notes “Comments made when reasons (for detention) explained”. Anything said by the suspect before the Custody Officer is recorded.

Crucially, in both sections where the suspect’s comments are recorded they must be counter-signed and verified to be true by the suspect themselves. This makes it very difficult for the suspect and his or her legal team to them challenge later.

Knowing, as we now do, that a quarter of Taser victims suffer dementia-like effects, why should:

  • these comments, usually made within the crucial first hour, become written evidence in the Custody Record?
  • the comments be verified to be true by the suspect when they may not know what they said or what they are signing?
  • these early comments gain further legitimacy by being referred to in later (formal) recorded interviews?
  • interviewing officers be allowed to refer to them to put pressure on Tased suspects?
  • prosecutors be allowed to refer to them at Court?

Flawed System

Allowing the police to use post-caution and detention comments from Taser assault victims may lead to miscarriages of justice, which are bad for everyone, not just the wrongfully convicted victim who is denied their liberty. Confidence in the legal system and the Rule of Law is diminished, the financial costs to the State and society are significant, and there is the risk that the person who committed the crime will re-offend, causing further unnecessary harm.

Politicians, the police, and public now know enough about the serious physical, emotional, and mental effects of Tasers. Miscarriages of justice are likely to occur if the present system remains. It’s time for a change.

 

Kevin Donoghue is the Solicitor Director of Donoghue Solicitors, a firm which specialises in civil actions against the police and people who have suffered due to the unlawful use of Taser weapons.

 

 

Can I Claim Compensation for a Mistaken Identity Arrest?

Photo of Daniel Fitzsimmons who discusses mistaken identity arrest compensation.
Daniel Fitzsimmons discusses mistaken identity arrest compensation.

 

By Daniel Fitzsimmons, GCILEx

In the past couple of weeks, I have taken on three new clients who want to pursue actions against the police after a mistaken identity arrest. All three men have suffered mentally and physically due to the incompetence of the police. This is why I believe they should be compensated.

Client 1: mistaken identity arrest at an airport

Mr. L called me following his arrest at an airport. He was with a group of friends waiting to fly out to Spain on holiday when, while at the gate, he was arrested by police officers on suspicion of domestic violence against a Miss G. Mr L told the police he did not know Miss G and denied the allegation. He was arrested and taken to a local police station for interview anyway.

After being processed and having his fingerprints and DNA taken, Mr L was detained for six hours until the police were ready to interview him.

While in the interview the interviewing officers asked him if his name was Mr W (same first name, different last name).

Mr L confirmed his name and, realising their mistake, the police eventually released Mr L without charge more than an hour later.

Unsurprisingly, he missed his flight and part of his holiday. He had to buy another ticket and join his friends the next day. The rest of his holiday was ruined because he was worried that he would be arrested again on his return. He was angry and upset that the police’s incompetence caused him to suffer stress, upset, and financial loss.

Client 2: Police arrest wrong man accused of actual bodily harm

A woman reported domestic abuse (actual bodily harm) to the police. She gave them the names of two ex-boyfriends, one of whom was my client. Both men were apparently of Nigerian descent but the woman told the police that her abuser was the other man.

Despite this clear instruction, the police mistakenly arrested my client at home, took him to a police station, and kept him in custody for five hours before eventually releasing him without charge.

Client 3: Mistaken Identity Arrest for serious sexual offences

My client, a respectable middle-aged civil servant, was leaving home to go to work in his car when three police cars arrived at speed and blocked him in.

Police officers jumped out and screamed at my client to get out of his own car. He did as he was told. The police grabbed and searched him and told him he was being arrested for the serious and upsetting offences of rape of a child under 13, slavery, and assault of a minor.

Naturally, my client was shocked and confused. He thought it was a practical joke and told the police they were mistaken and had the wrong person but they ignored him. He was bundled into the back of a police car and taken to a nearby station.

After being processed, fingerprints and DNA taken, and held for over 12 hours my client was eventually interviewed.

During the interview my client confirmed that he did not know the complainant and had never lived in the area where she said she was held. He insisted that they had the wrong person and that he could easily prove it. Despite this the police continued with their upsetting and intrusive questioning.

Again, following interview, the police confirmed that this was another case of mistaken identity arrest.

He too was released without charge.

Reasonable Suspicion and False Imprisonment

My clients were deprived of their liberty so have potential compensation claims for unlawful (or wrongful) arrest, false imprisonment, and personal injury assault/ psychological damage. There may also be claims for trespass and breach of the Human Rights Act.

But are they entitled to compensation? To answer that we have to consider the law going back to the Magna Carta (1215) which says:

No free man shall be seized or imprisoned, or stripped of his rights or possessions, or outlawed or exiled, or deprived of his standing in any other way, nor will we proceed with force against him, or send others to do so, except by the lawful judgement of his equals or by the law of the land.

False imprisonment is the cornerstone of their claims and is defined as the “Complete deprivation of liberty for any time, however short, without lawful cause.”

(from Clerk & Lindsell on Torts, 19th Edition, 2006)

It is established on proof of:

  1. the fact of imprisonment, and
  2. the absence of lawful authority to justify that imprisonment.

Once the claimant (victim) has proven that he or she was imprisoned the defendant (police officer) has to justify it. (see Hicks v Faulkner 1881).

Because every imprisonment is prima facie (on its face) unlawful, this is one of the rare situations in civil law where the burden of proof shifts from the claimant to the defendant.

Police prove the lawfulness of an arrest by relying on a warrant (here’s more information on police warrant claims) or, if they don’t have one, applying s.24(2) and (3) of the Police and Criminal Evidence Act (1984) (as amended).

This law says:

(2) If a constable has reasonable grounds for suspecting that an offence has been committed, he may arrest without a warrant anyone whom he has reasonable grounds to suspect of being guilty of it.

(3) If an offence has been committed, a constable may arrest without a warrant—

(a)anyone who is guilty of the offence;

(b)anyone whom he has reasonable grounds for suspecting to be guilty of it.

(my emphasis in bold)

There are other conditions which must be met before arrest, such as also having reasonable grounds for believing that it is necessary to arrest.

Two-Stage Test

But what are “reasonable grounds for suspecting”? The former Master of the Rolls and Lord Chief Justice, Lord Woolf, set down a two-stage test in Castorina v Chief Constable of Surrey (1988):

  1. Did the arresting officer suspect that the person who was arrested was guilty of the offence? The answer to this question depends entirely on the findings of fact as to the officer’s state of mind.
  2. Assuming that the officer had the necessary suspicion, was there reasonable cause for that suspicion? This is a purely objective requirement to be determined by the judge if necessary on facts found by the jury.

If my clients’ cases get that far, the trial judge(s) will be asked to consider each question in turn. Both limbs must be satisfied to justify arrest.

Public policy leans heavily in favour of the police to encourage them to get on with the job of policing effectively. As a result, the threshold for an arresting officer to justify reasonable suspicion for arrest is low. But in the cases I describe above I am confident that these mistaken identity arrests cannot be justified.

This is because even though the arresting officer might say that he personally suspected my client of guilt (Question 1: known as “the subjective test)”, the court must also be satisfied as to the reasonableness of the officer’s assumption from an outsider’s point of view (Question 2: known as “the objective test”).

So, in the case of Client 1, when my client explained to the arresting officer that he was not the person they were looking for, and that he did not know his accuser, this ought to have put doubt into the arresting officer’s mind. The officer failed to resolve this before arrest, which he could have easily done by checking my client’s passport (which he was holding as he was about to board a plane).

In my opinion, this means that the officer did not have an objectively reasonable suspicion which makes the arrest unlawful, and means that my client is entitled to compensation and, if necessary, an apology.

In short, arresting officers have to use their brains. Despite police-friendly public policy, our 800-year old right to liberty trumps their right to investigate and suppress crime without consequences.

 

If you have a mistaken identity arrest case call me, Daniel Fitzsimmons, on 0151 933 1474 or complete the online form on this page.

 

 

 

 

 

 

 

 

How Police Taser Use is Failing Us All

Is the current police taser policy working? A few recent reports about the police’s use of tasers in the UK suggest not.

Picture of police Taser claims solicitor, Kevin DonoghueBy Kevin Donoghue, Solicitor

In 2013, police tasers were deployed 10,380 times across England and Wales. The weapons, which discharge an electrical charge said to be 50,000 volts, cause temporary paralysis. As a result, a police taser can be an extremely effective tool to ensure compliance.

But because the weapon can cause serious injury, the Association of Chief Police Officers’ (“ACPO”) own guidelines state that a police taser should only be used where:

  1. the police officers face violence; or
  2.  when they are in a situation where the threat of violence is so severe they need to use force to protect the public, themselves, and/ or the person they are dealing with.

 

Police Taser Use in the News

 

Despite that clear guidance from their own leaders, these recent reports suggest that the officers armed with police tasers are not sticking to their bosses’ rules:

  1. A BBC report states that in the South of England taser use has doubled, leading Amnesty International to express concern about whether they are being used in minor situations instead of the life-threatening or serious violence ones they were introduced to deal with.
  2. Staffordshire Police taser use is three times more than the neighbouring West Midlands Police. The force has the highest level of police taser use per person in the country, and is being investigated by the Independent Police Complaints Commission (“IPCC”) about it.
  3. Lincolnshire Police are using police tasers more than twice as much as neighbouring forces such as Nottinghamshire.
  4. The IPCC questions the point blank use of police tasers.  It notes that the police are officially no longer trained to use the technique of ‘drive stun’, where the police taser is discharged while being held directly against the victim’s body rather than fired from a distance. Despite this, officers are shown that the technique exists and use the police tasers in this way in 16% of cases. The IPCC said that showing officers the option existed but being told not to use it was ‘counter intuitive’. The IPCC commissioner also said that using the taser in this way ‘is purely a means of pain compliance’ which often made the victims of the police taser assaults more resistant.

 

Police Taser Defence

 

With all this recent negative publicity (the oldest story in that group is from 8 April 2014) you might expect the police to go on a charm offensive. But instead of re-assuring the public that the ACPO guidelines are followed, that training will be reviewed, and that the controversial ‘drive stun’ technique will be discontinued, all these reports were defended by the police for various reasons:

  1. Chief Superintendent Paul Morrison head of operations command at Sussex and Surrey police, justified the rise in police taser use by saying it coincided with more officers getting the weapons, and when discussing a case involving the police taser assault on a 14-year-old girl, said “Taser was a low level of force, if you use restraints or baton strikes… they could have led to injuries.”
  2. The Staffordshire Police and Crime Commissioner said police tasers were often used as a deterrent.
  3. Lincolnshire Police Force’s assistant chief constable, Lee Freeman, said that Lincolnshire’s large rural area is a factor in their comparatively high police taser use; that more of their officers were trained in taser use; and, according to the BBC report, “he said tasers were usually used in circumstances when someone [is] threatening to use violent behaviour.” (my emphasis).
  4. ACPO said that the controversial ‘drive stun’ technique is still shown during training because it could be needed in an emergency. They also questioned the statistics, suggesting that ‘angled drive stun’ (which they said is a ‘viable tactic’) was confused with ‘drive stun’ (the pure ‘pain compliance’ method.)

 

Photo of a police Taser Weak Arguments to Justify Increasing Police Taser Use

 

My thoughts on these responses are:

  1. Ch Supt Paul Morrison’s argument that more tasers equals more use has merit, but to then suggest that police tasers are ‘low level’ weapons undermines his argument. If they are so innocent, why are police tasers being issued to so many officers? Why is Amnesty International involved? Why are the IPCC criticising the police for using them for “pain compliance”?
  1. Staffordshire Police’s point that the tasers are often used as a deterrent is also justified according to the IPCC statistics, but that doesn’t explain why they are using the weapons so much, especially when compared to near neighbours like West Midlands Police, who have a comparable blend of cities, towns, and rural areas to police.
  1. Lincolnshire police say that being a rural force means that they must use their tasers more. This is disingenuous. England and Wales has lots of rural areas where other forces are able to deal with dangerous situations without resorting to the use of police tasers. Derbyshire, for example, only used the weapons 83 times in all of 2013, less than a third of Lincolnshire Police’s total. What did Lincolnshire do before they got their hands on police tasers? Simply let criminals and others they wanted to apprehend get away?

No doubt like Ch Supt Morrison of Sussex and Surrey Police, they would say that if they had to use a truncheon or fist instead that could also cause injury. Perhaps, but often not to the extent of incapacitating someone, who may then fall to the ground and suffer serious secondary injuries, which can be worse than the initial taser shock.

 I am also troubled that, according to the Assistant Chief Constable of Lincolnshire Police, police tasers are “usually” but not always used “in circumstances when someone [is] threatening to use violent behaviour”. The ACPO guidelines above say that the weapons should only be used when the officers or others face violence or the threat of violence. When and why did Lincolnshire Police disregard official ACPO policy? What other circumstances now justify using a police taser?

  1. ACPO’s response to the critical IPCC report on ‘drive stun’ is to defend the tactic, saying that it could be needed in an emergency, e.g when the initial firing missed its target. Are we expected to believe that happens in 1 in 6 incidents? Can’t the police shoot straight?

They also questioned the statistics, suggesting that ‘angled drive stun’ (a ‘viable tactic’) was confused with ‘drive stun’ (the pure pain compliance method). This, to me, seems to be little more than deflecting blame and trying to change the subject to one of how the report was prepared, rather than dealing with the issues raised.

As a solicitor who deals with civil actions against the police on a daily basis, I am not surprised that the police’s responses were defensive. Their mantra when dealing with compensation claims seems to be: deny, deflect, and disrupt. They appear to be taking the same approach with the media.

Police Taser Abuse Defended

 

Tasers can be deadly weapons and, as ACPO themselves state in their guidelines, should only be used as a last resort when faced with violence or a severe threat of violence. The alarming rise in police taser use, the continued use of the painful “drive stun” technique, and Assistant Chief Constable Lee Freeman’s comments suggests this is not happening.

Reading the reports above I am struck that the various police forces respond to challenges by defending their techniques, denying wrongdoing, and challenging the statistics.

This is a systemic issue. Instead of excuses, we need solutions.

It matters because police forces are meant to serve the public, not the state, and an escalation in the use of police tasers suggests that things may have moved too far in the direction of control and compliance.

If the police are to win back public confidence, they need to learn lessons from the seemingly out-of-control increase in police taser use and their bungled media response to it. They could start by properly training police officers using agreed ethical standards which apply to all forces, avoid blaming others, and stop trotting out excuses.

 

Kevin Donoghue is a solicitor who specialises in civil claims against the police. You can contact him via his firm’s website, www.donoghue-solicitors.co.uk, or on 0151 933 1474.

 

Image credit: Marcelo Freixo CC licensed