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 The new X2 Taser will soon replace the outdated X26.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).

 

 

 

 

The Spit Hoods Balancing Act

Solicitor Kevin Donoghue was interviewed on BBC Radio Essex about spit hoods.
Kevin Donoghue solicitor, discusses spit hoods on BBC radio.

By Kevin Donoghue, solicitor

Last week I discussed spit hoods on BBC Radio Essex with presenter Sadie Nine and Steve Taylor, incoming head of Essex Police Federation. You can listen to the interview on BBC iPlayer or here:

The Police Federation, a staff association, is keen to ensure its police officers have access to the controversial mesh masks. But should they? Here I discuss the issues which must be addressed before allowing police forces to use these potentially deadly tools.

How Spit Hoods Are Currently Used

Recently I noted that the Metropolitan Police suspended the use of spit hoods after a public outcry. As the UK’s largest police force, it is unsurprising that the Met’s plans caught the public’s attention. But before this announcement what went almost unnoticed is the fact that, according to Sir Bernard Hogan-Howe, Commissioner of the Metropolitan Police, 15 police forces around the country (about a third of them) are already using spit hoods on people as young as 11, and as old as 70.

Unlike with other police equipment such as CS and PAVA spray and Body Worn Cameras, there is no nationwide standard for spit hoods or their use. The government Centre for Applied Science and Technology (CAST), which describes itself as being “made up of scientists and engineers who develop technological solutions to fight crime”, has yet to provide guidance on spit hoods. This was confirmed in a Freedom of Information Act response provided to me by the Omega Foundation which says:

Q1) Have CAST formally evaluated spit hoods and masks for use by UK police forces?

Answer – No, CAST has not formally evaluated spit hoods or masks

Q2) Have CAST identified models or types suitable for use?

Answer – No, CAST has not identified models or types suitable for use.

Q3) Have CAST produced risk, safety, ethical, medical or any other relevant use based assessments of spit hoods and guards for use by UK police forces?

Answer – No, CAST has not produced any assessments of spit hoods or masks

Because of this lack of official guidance, the decision to use spit hoods falls on individual Chief Constables. Consequently, spit hoods are being rolled out across the country on a piecemeal basis, leading to glaring inconsistencies in policing. For example, British Transport Police used a spit hood to help them detain and subdue 20-year-old IK Aihie in London Bridge Train Station. But if Mr Aihie had been arrested on the street outside the station the Metropolitan Police would not have used this kind of force.

Photo of a police officer. In some forces in the UK police officers use spit hoods.

Spit Hoods Considerations

The vacuum in official guidance means that Chief Constables must apply a delicate five-point balancing act:

  1. As the Metropolitan Police’s Chief pointed out, “I’ve got a duty to keep our police officers safe”. The police do a difficult job and come in to contact with people who may have such devastating diseases as Hepatitis C and TB. The risk of infection from spitting saliva or blood is a prime concern.
  2. The police must also take the arrested person’s health into account. Spit hoods may seem benign, and as LBC’s Nick Ferrari described when wearing one, “I can breathe perfectly”. But, with respect to Mr Ferrari, there’s a world of difference between wearing a spit hood in a radio studio compared to a “real life” situation, such as my client Paul Smith’s. In this extract from body worn camera footage the police sprayed Mr Smith (details used with permission) with PAVA incapacitant (which is designed to cause extreme pain and narrowing of airways so that the victim reflexively spits it out) then put a spit hood over his head:

Paul Smith                I am on fucking fire

Police Officer           Stay still, I sprayed you for a reason, because you were resisting arrest

Paul Smith                I need water

Police Officer            We don’t have water

Paul Smith                I need water. I need water man

Police Officer            We don’t have any water to give you

Police Officer            You will get water when you go in your cell

Paul Smith                I am choking

Police Officer            You’re not choking

Paul Smith                Seriously take it off

Police Officer            You can’t have it off your face

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

Police Officer             Stop swearing there is children over there

I can’t show the disturbing body worn camera footage here but Paul tells me that the transcript doesn’t do justice to the pain and fear he felt.

The risk when police spray someone with PAVA spray then apply a spit hood is that the clean, dry spit hood soon becomes impermeable with mucous, spit, and possibly vomit. In that situation, the near-sealed hood has the effect of keeping the PAVA spray close to the victim’s mucous membranes, increasing the flow of mucous/ spit/ vomit onto the inside of the hood. Death through suffocation is a real threat, as this story from the USA tragically describes, but in response to a question about breathing difficulties after hooding Metropolitan Police Federation Chief Ken Marsh said:

“Nonsense – it doesn’t affect your breathing at all,” said Marsh. “Bear in mind people who behave in this way are drunk or on drugs whilst they’re behaving like this. They should think about doing those things before they worry about a bit of spit.”

This view, from one of the country’s top Police Federation chiefs, is unhelpful to say the least. Surrey Police, which uses spit hoods, came to the conclusion that subject safety is more important and say “Spithoods are not to be used if the subject is having difficulty breathing, vomiting, or bleeding profusely from the mouth or nose.” (This is despite the greater potential for police officers to become infected as the subject may already be bleeding.) And, as part of any risk assessment, Chief Constables must consider if other alternatives would be effective, such as Essex Police’s use of safety glasses.

  1. The public and police must be satisfied that spit hoods are necessary. The police operate by consent. They are not the army, nor do we have martial law. Some Chief Constables feel that the hoods are reminiscent of those used at Guantanamo Bay. The impact on community relations of using spit hoods in public and/or police stations, particularly among Black and Minority Ethnic (BME) communities, must be considered.
  2. As spit hoods are “classed as a use of force by a police officer” that force (both in initial use and ongoing when the arrested person is subdued) must be reasonable (subjectively and objectively) and proportionate. Chief Constables must consider if, and how, spit hoods can be used lawfully. The individual police officers involved will need to justify their use, which puts the onus on the police to ensure proper training. I am sure the Police Federation chiefs would agree that it is important to get this right to protect their front-line police officers from misconduct hearings, IPCC investigations, litigation, and potentially dismissal.

As I explained in the BBC Radio Essex interview:

“There can’t be any argument to justify the actions of those who are spitting…what the issue here is a matter of a balancing act…when we see that there is an argument to say ‘yes these spit hoods should be used in the required circumstances’ the difficulty is for the police officers to assess when that is appropriate or not.”

Essex Police Federation’s Steve Taylor suggested that “almost exclusively, it would be a reactive piece of equipment which would be placed over the head of a suspect who started spitting to prevent anyone else coming in to contact with further spit.”

While this “reactive” approach makes sense, something that concerns me is (again, from the interview):

“What can be confused is the act of spitting… if you have an individual who has been subject to PAVA captor spray, which is an incapacitant which causes constriction of the nasal passages, causes the production of mucus, and there is a natural reaction to remove that from the mouth and nose. That is not necessarily being directed at Police Officers as an act of spitting.”

This is what happened to Paul Smith, who was wrongfully arrested, assaulted, and subdued using a spit hood. With my help, Sussex Police paid him £25,000 compensation plus legal costs.

  1. The spit hood equipment must be suitable and fit for purpose. This includes considerations such as operational effectiveness, cost, safety, ease of use etc. There are numerous spit hoods on the market, including this one described as “In current use throughout UK Police Forces”, but none have been formally approved by the government.

Tweet: #Spit hoods are being rolled out by police forces on a piecemeal basis. It's time for government to act. https://wp.me/p1xJGh-1gq Source: @donoghuelaw

Government Role

I have some sympathy with the Chief Constables grappling with these complex issues and, in some cases, directly opposing their own Police Federation chiefs.

Given the difficulties is it any wonder that the Metropolitan Police suspended their trial of spit hoods and Essex Police bought spit hoods three years ago but chose not to use them? In a statement provided to BBC Radio Essex the force said:

“Spitting at a police officer is a deplorable act and anyone who does it can be prosecuted and imprisoned. Essex Police has no plans to introduce spit hoods for general issue and authority to use them can only be given by the Chief Constable or Deputy Chief Constable in exceptional circumstances. The safety of our police officers is paramount and other protective equipment such as safety glasses is available to be used as necessary.”

This is too big an issue for individual police forces to decide. I urge the government to get involved immediately. There should be a discussion, involving key stakeholders on both sides of the debate, about whether spit hoods have a place in a civilised society. Until then there should be an immediate halt on any more forces introducing these “barbaric” tools.

 

Contact solicitor Kevin Donoghue for legal advice on pursuing civil actions against the police here.

 

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

Why Lawyers Object to the Investigatory Powers Bill

Photo of Kevin Donoghue, a solicitor, who discusses why lawyers object to the Investigatory Powers bill here.
Kevin Donoghue explains why lawyers object to the Investigatory Powers Bill.

By Kevin Donoghue, Solicitor

Today in Parliament MPs are to debate the second reading of the Investigatory Powers Bill. I believe the Bill, as currently drafted, is not fit for purpose and joined with more than 200 other leading lawyers in writing a letter to The Guardian newspaper outlining my objections. This is why.

What is the Investigatory Powers Bill?

The Investigatory Powers Bill is described on the UK Parliament website as:

A Bill to make provision about the interception of communications, equipment interference and the acquisition and retention of communications data, bulk personal datasets and other information; to make provision about the treatment of material held as a result of such interception, equipment interference or acquisition or retention; to establish the Investigatory Powers Commissioner and other Judicial Commissioners and make provision about them and other oversight arrangements; to make further provision about investigatory powers and national security; to amend sections 3 and 5 of the Intelligence Services Act 1994; and for connected purposes.

The Conservative government introduced the Bill in the House of Commons on 1 March 2016. At this first reading stage there is no parliamentary debate about the substance of the Bill. That comes at the second reading stage, today.

After the debate the Speaker calls for objections. If there are none, the Bill proceeds through second reading without a vote. If Members disagree, a vote is taken.

If the Investigatory Powers Bill passes the second reading it progresses to the Committee stage, before proceeding to a third reading.

Why Legal Experts Object to the Investigatory Powers Bill

The Bill, as drafted, fails to meet international standards for surveillance powers.

This is because it:

  1. gives public authorities, such as the police and security agencies like GCHQ (the government’s monitoring agency), generalised (as opposed to targeted) access to the contents of electronic communications such as emails and digital records. Consequently, the Bill’s use of “bulk interception warrants” and “bulk equipment interference warrants” may be illegal.
  2. allows for “targeted interception warrants” to apply to groups of people, organisations, or premises instead of applying to specific individual targets.
  3. does not include a “reasonable suspicion” requirement. This means that surveillance could be used on people, organisations, or premises where no criminal involvement or threat to national security is present.

If the Bill is passed, the effect of these proposals is to allow the police and security agencies unfettered access to our most private communications, including emails, phone calls, medical records, bank statements, etc.

It may also lead to expensive and time-consuming legal challenges and further Parliamentary reform.

Global Perspective

Because our right to privacy in the UK is under threat the UN’s special rapporteur on privacy criticised the UK government in a report to the UN Human Rights Council. He said that the UK has a leading role on the world stage and ought to “desist from setting a bad example to other states by continuing to propose measures, especially bulk interception and bulk hacking” which run counter to recent European court judgments and “undermine the spirit of the very right to privacy”.

I couldn’t agree more. I urge Parliament to carefully consider the implications of this wrong-headed Bill. It must be fundamentally changed at this stage to ensure that any future Act at least meets international standards, and that the UK’s position as a leading democracy is not undermined.

 

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

 

 

 

Why are Solicitors Against Raising the Small Claims Limit?

Kevin Donoghue, Solicitor Director of Donoghue Solicitors explains why solicitors are opposed to an increase in the small claims limit.

I recently wrote to my local MP, Peter Dowd, and Louise Ellman, MP (the MP for Liverpool Riverside, where Donoghue Solicitors is based) to ask them to consider the Government’s proposed reforms of the accident claims process, and in particular, raising the small claims limit.

Photo of Kevin Donoghue, solicitor. Raising the small claims limit could have devastating effects in Kevin Donoghue's opinion.
Kevin Donoghue of Donoghue Solicitors considers the implications of the proposed raise of the small claims limit.

As an Association of Personal Injury Lawyers (‘APIL’) Senior Litigator, who runs an APIL corporate accredited practice, I represent many innocent accident claims victims. I am deeply concerned by the potential impact of the changes.

The government proposals will:

  • Raise the small claims limit from £1,000 to £5,000
  • Change the law by preventing people from claiming compensation for soft tissues injuries (such as “whiplash”) in road traffic accidents.

What is the Small Claims Limit in England and Wales?

The small claims limit is a money value placed on contested civil claims when proceedings are issued at County Court. With accident claims in England and Wales, if the personal injury element is worth less than the current small claims limit of £1,000 the case will usually be assigned to the small claims track. (There are exceptions, e.g., for complex cases, and sometimes claims worth more than £1,000 will get allocated to the small claims track.).

When a case is allocated to the small claims track it means that the Court considers the matter to be of low value and/or straightforward. Either way, in the Court’s opinion, solicitors are not required unless the parties want to pay privately. Consequently very limited costs or expenses are payable. As a result, most people bringing small claims represent themselves as Litigants in Person.

I disagree that personal injury accident claims are suitable for the small claims track. They are complex matters that require expert legal help to identify the issues, prepare evidence, and recover appropriate compensation to put the Claimant in the pre-accident position. Already Litigants in Person are at a huge disadvantage in small claims because Defendants in accident claims are usually insured. Insurers routinely fight small claims using expert solicitors and barristers. As a result, the scales of justice weigh heavily in their favour. More innocent accident victims will lose out if the Government raises the small claims limit.

If implemented these proposals are likely to have devastating consequences for innocent accident claims victims, people involved in the legal profession, and the UK economy. Only insurers and their shareholders will benefit.

It is for these reasons that I have urged both MPs to act. My letters stress the economic impact because, unfortunately, some politicians still believe the insurer-peddled myth of a “compensation culture” and may be reluctant to intervene. (I have written about this bogus idea in the past. Even Conservatives like former Minister Lord Young dismissed it.)

For now though, I’m not interested in a PR battle over mere words. These proposed changes to the small claims limit are so significant for concrete reasons that I hope our politicians stand up and fight. We are all relying on them.

Small Claims Limit Letter

My letter to Louise Ellman MP is reproduced below:

Louise Ellman MP

House of Commons

London

SW1A 0AA

29 January 2016

Dear Mrs Ellman,

Economic Cost of Changes to Personal Injury Compensation Claims

I am writing to you as a solicitor who specialises in compensation claims, a small-business owner, and employer, to urge you to make representations to the Justice Secretary.

I believe that the Government ‘s plan to increase the small claims court limit to £5,000 for people injured through no fault of their own – and to abolish recompense altogether for almost all those who have suffered soft tissue injuries in road accidents, is wrong.

I am sure you have read and heard the insurance lobby and government talk about the (non-existent) “compensation culture” and “fat cat lawyers”. I am not going to waste your time refuting that unsubstantiated nonsense. Instead, I invite you to consider the impact of these proposals from an economic perspective both nationally and locally.

£1Billion+ Cost to HM Treasury

It is estimated by the Access to Justice Action Group (www.accesstojusticeactiongroup.co.uk) that

the Treasury is likely to lose in excess of £1billion from lower recovery of welfare benefits paid to the DWP from successful claims, and loss of VAT, Income Tax and Corporation Tax from the demise of law firms, their suppliers and contractors, as thousands of lawyers and their hard working staff lose their employment and end up on state benefits.

Liverpool will be disproportionately impacted by these proposals. The city is a legal powerhouse with firms of all sizes employing people involved in compensation claims work. Liverpool’s law firms contribute to the local and national economy through taxation, jobs, and spending. It has a thriving support sector of IT, telecommunications, marketing professionals etc. Law firms like mine occupy prime real estate in the city, which encourages development and generates business rates for Liverpool City Council.

The compensation claims legal sector is already struggling. Many firms have gone “to the wall” since the Legal Aid, Sentencing and Punishment of Offenders Act (2012) (“LASPO”) came into force in 2013. The impact of that, and the current proposals, continues to take its toll on firms of all sizes. Last week the AA pulled out of the personal injury claims business. One of the country’s biggest law firms, Slater and Gordon, recently announced redundancies. Closer to home, Water Street-based PCJ Solicitors, which posted a turnover of £5.5million in its 2014 accounts, entered administration on 19 November 2015. The firm will leave unsecured creditors hundreds of thousands of pounds out of pocket.

The Government’s proposals will accelerate the sector’s collapse and threaten the continued existence of many more law firms and support businesses.

The proposals will also affect the budget of the already-stretched court service. Court fee increases have risen dramatically over recent years, particularly in civil litigation, which including personal injury compensation claims. Claimants are often unwilling or unable to pay the fees, leaving their solicitors to cover the costs while litigation progresses. If solicitors are no longer involved to fund court fees the Government will be forced to take money from elsewhere, and/ or close courts leading to more redundancies.

Wider Economic Impact

Whilst a limited increase in the small claims threshold is appropriate (inflation would suggest the correct higher figure would be £2,000), the current proposals will result in injustice to ordinary honest people whilst creating excessive profits for insurance companies; and even more so, if the injured are banned altogether from receiving anything at all for their suffering and losses.

It is estimated that 85% of injured people will be denied legal representation. They will be left alone to face an unfair battle against powerful insurance companies. Most will not even bother; or will be exploited by claims management companies.  Others will accept woefully inadequate offers to avoid the stress of the Small Claims Court.

My own firm is typical in that we help people locally and throughout England and Wales. Compensation recovered by innocent victims directly impacts on the local and national economy through spending on essential items (like medical care and aids) and discretionary spending (e.g. buying a newer car after a road traffic accident). Failing to recover any compensation, or under-settling, will have serious ripple effects in the wider economy.

Insurers’ Profits Soar Amid Broken Promises

The Government say its proposals will reduce “fraud”. However, the evidence does not support this argument; and the Government has already introduced a long series of measures to deal with this anyway.

Savings can only come from denying people the compensation to which they are rightfully entitled. The Government’s proposals will codify this.

The insurers claim savings would be passed on to policy holders. However, they’ve said this many times before (for example, during the discussions about LASPO) – and each time failed to meet their promise. The Government have made clear they will not “police” this, either. Despite the insurers’ promises car insurance premiums have increased 9.2% in the 12 months to the end of September 2015, taking the average cost of a comprehensive policy to £569.

The insurance industry’s own Association of British Insurers (ABI) figures show that their costs of recompensing those hurt by their policy holders have fallen 29% since 2010. The amount paid out annually by motor insurers fell from £8.3 billion to £5.89 billion last year – a decrease of £2.41 billion. Yet savings from this multi-billion pound windfall have not been passed on.

In fact, this huge sum has gone to inflate the insurance industry’s profits instead. For example, Direct Line and Admiral have between them paid out £1.65 billion in dividends in the last three years – equivalent to £221 for each of their policy holders.

Innocent accident victims, the city of Liverpool, and the wider UK economy, should not be made to pay for the Government’s wrong-headed plan.

I would welcome the opportunity of discussing these issues with you.

Yours sincerely

Kevin Donoghue

Solicitor Director

 

 

 

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″]

 

 

 

 

The Compensation Culture Trick

Photo of Kevin Donoghue, solicitor, who discussed the "compensation culture" on BBC Radio.
Kevin Donoghue, solicitor, discussed the “compensation culture” on BBC Radio.

By Kevin Donoghue, Solicitor Director of Donoghue Solicitors

Yesterday, James Whale of BBC Radio Essex interviewed me about the “compensation culture” and a Freedom of Information Act request showing compensation paid by Essex Police between 2011-2014. The BBC contacted me as I am a solicitor who specialises in actions against the police who has successfully sued Essex Police for compensation.

The interview focussed on why people receive compensation, how they go about claiming it, and whether there is a “compensation culture”. You can hear it here:

Mr. Whale followed a well-trodden path when he asked me about the so-called “compensation culture”, but to be fair to him, it was just one question in a wide-ranging and thought-provoking interview.

I pointed out that, by discussing the “compensation culture”, he seemed to be focussing on personal injury damages, which, despite the government’s efforts, are still promoted in cheesy adverts on daytime t.v.

The media, police, and government continue to trot out the idea that we are all a bunch of despicable compo-grabbers, claiming compensation for everything and anything, and taking money away from front-line services like the police in the process.

Only last year Norfolk’s Chief Constable Phil Gormley was interviewed on BBC radio about one of his own officers who was making a claim after getting injured at work. He repeatedly blamed the “corrosive compensation culture” for her decision to seek compensation, saying that “it generates a something for nothing attitude”.

As my analysis of the Essex Police figures shows, this is not only wrong, but misses the point and masks the true reasons for seeking redress in the first place.

Freedom of Information Act Data

Essex’s population is about 1.6 million people, served by 3,600 police officers (so the police make up only 0.225% of the total population). The BBC’s Freedom of Information Act request confirmed the following:

2011    Damages paid to members of the public £177,230.04

2012    Damages paid to members of the public £105,350.09

2013    Damages paid to members of the public £149,911.14

2014    Damages paid to members of the public £139,113.69 (to the 15 December 2014)

The following categories of claim are used to record information and payments could be made in any one of these categories: Unlawful arrest / False imprisonment, property damage / loss, dog bites, assault, negligence, breach of Human Rights, breach of data protection.

 2011    Damages paid to Police Officers or Police Staff £20,039.85

2012    Damages paid to Police Officers or Police Staff £135,682.13

2013    Damages paid to Police Officers or Police Staff £47,762.15

2014    Damages paid to Police Officers or Police Staff £241,464.50

The claims are recorded under the single category of Employer Liability Claim but will include : Injury at work claims, stress at work claim, damage caused to personal property whilst on duty, acts of negligence by police officers / police staff.

  • The figures do not include redundancy payments.
  • The figures do not include payments awarded in Employment Tribunal claims
  • The figures do not include ex-gratia and property damage claims
  • The figures do not include motor claims

 

Analysis of Data

These figures show the following:

  1. Between 2011-2014 the total for claims made by the public was £571,604.96. Police officers and staff received £444,948.63. The grand total for all claims paid was £1,016,553.59.
  2.  Essex Police officers and staff account for 44% of all compensation claims paid by the Force despite them making up less than a quarter of a per cent of the region’s population.
  3. Payments to the public over the four-year period were £0.36 per person. Compensation payments to the police and staff were £123.60.
  4. Compensation claims made by the public (all 1,596,400 of them) are broadly going down, so that in 2014 they recovered only 37% of the total paid out by Essex Police. By contrast the Force’s police and staff received the lion’s share of compensation in 2014: 63%.
  5. In the four-year period, compensation claims made by Essex police and staff against their employers have sky-rocketed, from a low of £20,039.85 in 2011 to £241,464.50, an increase of 1205%.

Over half a million pounds in four years looks like a lot of money paid out to the public.

But is it? Compared to police officers and staff, payouts to ordinary citizens are almost non-existent. Police officers and staff themselves claim almost as much money from their employers despite being a tiny proportion of the overall population.

Bear in mind that, according to the Freedom of Information request, the police’s compensation claims include, among other things, the same kinds of claims as the public. (ie. negligence claims by police officers/ staff, such as false imprisonment, unlawfully executed police warrant claims, malicious prosecution and misfeasance in public office claims, etc.)

Full disclosure: although most of our clients are ordinary members of the public, Donoghue Solicitors also represent police officers in these claims when they are treated as ordinary citizens instead of employees. Despite their jobs, police officers and staff can be victims of police misconduct too. It’s strangely comforting to think that the police don’t discriminate when abusing their powers.

And it is worth remembering that, regardless of who claims compensation, whatever money paid is well deserved. Police forces only pay out in actions against the police when they have to. Winning claims against the police is hard because they have statutory protections so they can do their jobs effectively without fear of prosecution. As a result, compensation is only paid in appropriate circumstances where police misconduct is clear.

Compensation Culture Myth

This official data shows that the public are making relatively few claims and being paid only in deserving cases.

I’ve written about this in the past but it bears repeating as the message doesn’t seem to be getting through: there is no such thing as a compensation culture.

The government, police, and media are wrong in focussing purely on compensation, especially in actions against the police. Why?

Because there’s more to making a claim than getting paid compensation.

Many of my clients want things that cost nothing like:

  • an apology
  • a promise of protection from future police harassment
  • an acknowledgment that the police made mistakes and a promise that they will put things right
  • an assurance that the police will receive training so others don’t suffer.

In short: they want justice.

A recent case of mine proves this point.

Essex Police made an error when they wrongly effected a police warrant at my client’s flat looking for drugs. He was held for 1 hour 20 minutes while they searched his flat and established that he had no drugs on the premises and was not a criminal.

They did not apologise at the time and, to make matters worse, Essex Police officers brought along a journalist from the local newspaper. The press published pictures of the flat door, showing the house number, and an arrested man’s face, which they blurred in the photograph. Anyone reading the paper who knew my client would have been in no doubt that he was a drug dealer, and not a respectable businessman.

My client was understandably upset and complained to Essex Police. He instructed me to make a claim because they ignored his complaint.

I helped him receive £4,000 compensation and costs but, more importantly for my client, he got an apology and offer to publish a retraction in the newspaper.

I suspect that he would not have claimed compensation if the police contacted him on the day of the raid and gave him an immediate apology, published a retraction, and re-assurance that they would not trouble him again. The fact that they did not offer that simple, and free, solution led to his compensation claim and a payment of thousands of pounds in compensation and legal fees.

Misdirection

I’m sure Essex Police were quietly happy that the Freedom of Information request did not also include a demand for details about whether police complaints had been made and/ or resolved before they received the compensation claims. The police have set the agenda so successfully that no one thinks to ask.

By concentrating solely on compensation, the authorities are cleverly pointing the media and unsuspecting public in the wrong direction. They can paint genuine claimants as grasping opportunists to discourage:

  • legitimate claims;
  • criticism of their misconduct; and
  • questions about their methods when confronted with a complaint.

Instead of more nonsense about the “compensation culture”, surely this is issue politicians and media should investigate. The public have a right to know why the police are spending taxpayer money before offering free remedies. But this puts the spotlight back on the police, and they don’t like that one bit.

 

If you want help claiming compensation from the police contact me on 08000 124 246 or complete the form on my firm’s website.

 

 

Without changes to QOCS, could Ferguson happen here?

It’s said that when America sneezes the rest of the world catches a cold.

If the government doesn’t take urgent action to change its policy on Qualified One Way Costs Shifting (“QOCS”), we might need to get an industrial-sized box of Kleenex® ready.

Kevin Donoghue, solicitor, explains why.

Photo of Kevin Donoghue, Solicitor, who explains why QOCS rules must change.
Kevin Donoghue, Solicitor explains why QOCS rules must change.

In August this year Darren Wilson, a white police officer, killed Michael Brown, an unarmed black man.

Despite taking place 4,000 miles away, the story is relevant here because there are similarities between our legal systems.

The killing in Ferguson, a suburb of St. Louis, Missouri, USA, sparked months of riots and protests across America about perceived racism in the police.

On Monday, 24 November, a grand jury convened by the state of Missouri decided not to indict Officer Wilson on charges of murder, manslaughter, or armed criminal action. He will not be prosecuted in the state’s criminal courts with these charges.

Michael Brown’s parents urged calm when the decision was announced, but their wait for justice continues.

So what can they do now?

Compensation Claim

The grand jury slammed the door on state criminal proceedings but a federal (government) investigation continues.

Even if that fails to bring Officer Wilson to justice, the family may still have the right to launch a civil claim against Officer Wilson (and St. Louis police) for wrongful death.

Taking actions against the police in civil court is an important part of the justice system. It steps in where criminal law fails.

It ensures that if Officer Wilson does not face jail time he, and the police force which employs him, could be made to pay compensation to Mr. Brown’s family.

Although compensation can’t bring their son back, a civil court judgment against the police might help the family achieve a sense of justice and closure.

Photo of a Ferguson protest.
People have been protesting about Ferguson since Michael Brown’s shooting.

Civil Claim Against the Police

Using the civil courts to seek justice mirrors my experience.

As a solicitor who specialises in civil actions against the police, I represent people who have been failed by the police, courts, and the criminal justice system.

For them, seeking justice is often more important than receiving compensation. An apology and/or court judgment can help ease the suffering they have endured and put the police’s misconduct in the past.

For example, my clients A.A. and H.A. initially received only a cursory apology from the Metropolitan Police after armed officers wrongly conducted a dawn raid at their home.

During the raid police assaulted both men. Afterwards they were afraid to be in their own home.  (You can read the full case study here.)

Feeling angry, upset, and mistreated; they contacted me as I am a solicitor who specialises in claims against the police.

I sued the Metropolitan Police for:

  • assault,
  • negligence,
  • trespass,
  • false imprisonment, and
  • breach of the Human Rights Act (right to respect for private and family life).

The Metropolitan Police denied liability, saying they had acted lawfully. And they said that there was no evidence my clients had suffered injuries even though they needed medical attention after the police assault.

This only increased my clients’ sense of injustice.

I prepared the case for trial but, late on, the Metropolitan Police entered into sensible negotiations. I eventually settled both my clients’ claims for £18,000 plus full legal costs and, importantly for them, obtained a full apology from the police.

Both clients were happy that justice had been done and that the police accepted their mistake.

Civil Liberties Threat

Without an independent solicitor like me fighting in their corner, A.A. and H.A. would not have received justice or closure.

Why? Because solicitors who represent victims of police abuse are willing to take on the police when their clients have been abandoned by the Crown Prosecution Service or Independent Police Complaints Commission.

It matters to everyone, including the police themselves, that police misconduct is challenged.

We all benefit when brave citizens take on the State because:

  • police procedures and training are reviewed and improved;
  • individual police officers are held to account and “bad apples” disciplined or sacked;
  • government policy can be influenced; and
  • society sees that justice is done and the Rule of Law upheld.

This last point is crucial. The Ferguson, Missouri, demonstrations show what can happen when the public feel aggrieved.

With all these benefits, you would think that the government would be keen to support solicitors and their clients who bring actions against the police.

Not so.

In itself, civil law is complicated and actions against the police cases are hard to win. But recent government policy towards legal funding suggests that it is determined to make it harder to bring a civil claim.

By doing so, the government is eroding access to justice and, with it, our civil liberties.

Unfair QOCS System

I have previously written about the disastrous impact of the Legal Aid, Sentencing, and Punishment of Offenders Act (2012) (“LASPO”) which came into effect on 1 April 2013.

LASPO introduced Qualified One Way Costs Shifting (“QOCS”) costs protection in personal injury claims.

Even though actions against the police are civil liberties cases at heart, they have been lumped in with whiplash, tripping accidents, and other personal injury claims. This is because personal injury is often part of these cases. For example, there could be a police assault claim for injuries sustained when applying handcuffs during arrest.

The QOCS system has made actions against the police with personal injury claims harder to bring because:

1. QOCS could leave successful claimants short-changed

Pre-LASPO, if the successful claimant won, they recovered their full legal costs and insurance from the responsible party. If they lost, after the event insurance covered all costs except their own legal fees, which were usually covered by no win no fee agreements.

This gave the innocent victim of police misconduct peace of mind that they would not suffer financially as well as physically and emotionally.

Post- LASPO, successful claimants now have to pay their own lawyer’s “success fees” and after the event insurance (if obtained) from their damages. This could discourage claimants as it might leave them with less compensation than they would have received before April 2013.

2. Uncertainty about the extent of QOCS protection

The main advantage of QOCS is that, unless exceptional circumstances apply, a personal injury claimant who loses their case will not have to pay their opponent’s legal costs. And if they have a no win no fee agreement with their solicitor, they don’t have to pay their own legal fees either. As a result, they are left only with their expenses (“disbursements”) to pay. This is useful, but not as good as the old system which provided them with full costs protection either way.

The problem with QOCS in police claims is that it is unclear if it applies to the whole claim or just the personal injury part, and it does not apply at all to cases where no personal injury is claimed, such as trespass cases.

I ran H.A. and A.A.’s cases under the old system so they received 100% of their damages and legal costs.

Under the new QOCS system, because they suffered a police assault, my clients H.A. and A.A. might have received full protection for their entire claim, but I could not guarantee it. They may only have received costs protection for the police assault. In that situation, if they lost, the court might have ordered my clients to pay the Metropolitan Police’s legal costs relating to the rest of their claims for trespass, breach of Human Rights, and everything else.

Unfortunately, the rules are badly drafted and no court has made a decision which solicitors can rely on to advise their clients. This uncertainty about QOCS puts some people off making a claim.

3. Police take advantage of QOCS confusion

Finally, a consequence of the QOCS changes is that, in my experience, the police are more willing to fight cases to trial. They exploit the confusion and now see claimants as a soft touch.

QOCS Consequences for Civil Liberties

The government introduced LASPO to curb the so-called “compensation culture”. It has been proven that doesn’t exist and, even if it did, should our civil liberties be eroded by discouraging people from claiming compensation?

Parliament needs to recognise the consequences of LASPO and act now to extend QOCS costs protection to all actions against the police, even where personal injury is not claimed, so that people can feel confident when standing up for our rights.

Protecting the Rule of Law from abuse by the police must come first. Otherwise, what’s happening in the USA might happen here.

 

Kevin Donoghue is a solicitor who specialises in civil actions against the police. Contact him on 0151 933 1474 or through the Donoghue Solicitors website.

Image credit: Tony Alter on flickr.

 

 

 

 

 

Will Paul Gambaccini sue the police?

Photo of Kevin Donoghue, a solicitor who helps people sue the police.
Kevin Donoghue, a solicitor who helps people sue the police.

By Kevin Donoghue, solicitor

On Friday 10 October the Metropolitan Police told Paul Gambaccini they will not be proceeding in their investigations over historical sex allegations.

The police arrested Mr. Gambaccini on Tuesday 29th October 2013 and released him under police bail. They did not charge him with any offences.

The broadcaster described his “12 months of horror and trauma” and has supported Home Office plans to limit the time suspects can be bailed without charge.

Speaking to the BBC, Human Rights barrister Geoffrey Robertson QC criticised the Police for the “unnecessary and unlawful” arrests that have been made during the Metropolitan Police’s “Operation Yewtree”.

If Mr. Robertson is right, Paul Gambaccini might consider taking a civil action against the police for:

  • false imprisonment;
  • psychological trauma;
  • damage to reputation and; if provable
  • lost income.

But will he sue the police?

Paying to Sue the Police

On 1 April 2013 the Legal Aid, Sentencing, and Punishment of Offenders Act (2012) (“LASPO”) came into force.

The coalition government pushed the Act through apparently to save money and please their insurance company donors.

In the 18 months since it has been in force it has had a profound effect on funding all compensation claims, including cases where people sue the police.

This is why.

Every working day I receive many enquiries from people asking me to help them sue the police.

As a solicitor and Officer of the Court I take my duties seriously. My priority is to act in the best interests of my clients. So I think about how they are going to pay for their cases before going any further.

Contrary to popular perception, claiming compensation isn’t free. The claimant is responsible for their own legal costs. Only if they win can they claim some, or all, of these back from their opponent.

Because of this costs risk, dealing with funding is as important as considering the merits of the claim.

If Mr. Gambaccini came to me I would tell him that there are four potential methods of funding:

  1. Legal Aid
  2. “Before the event” insurance or union backing
  3. Conditional Fee Agreement (also known as a “no win no fee” agreement) with/without “after the event” Insurance
  4. Private Client.

I’m guessing that Mr. Gambaccini won’t be eligible for legal aid. (He probably does not receive qualifying state benefits, or is on a low-income with little or no assets.)

He may have before the event insurance (so-called because it is insurance in place before the claimable incident occurs) or union-backing. In my experience these rarely cover actions against the police. This is because police claims are complicated, high-risk, and often of relatively low value (many are worth less than £5000).

He might ask if I would take the case under a conditional fee agreement. If so, I would only get paid if he won his claim. For taking the risk of not being paid, and delaying payment even if successful, my firm would receive a “success fee” uplift on top of our base costs.

Before LASPO no win no fee agreements allowed me to represent clients with a guarantee that they would recover 100% of their compensation if they won; and walk away scot-free if they lost.

This was because, if my clients won, their losing opponent paid the success fee and, if obtained, the cost of an after the event insurance policy. With no fees to pay, my clients received every penny of their hard-fought damages.

(After the event (claimable incident) insurance provided valuable protection as it would pay for all of my clients’ expenses (called “disbursements”) and the other side’s legal costs if they lost their claims.)

By using pre- LASPO no win no fee agreements my clients did not have to pay legal fees out of their own pockets as private clients. This was a better deal than option 4, which would be the last resort for most.

 “Compensation Culture”

The conditional fee agreement system worked well before LASPO, but the government was determined to stamp out the perceived “compensation culture”, even though study after study showed that it does not exist. In 2010 the government commissioned Lord Young, the Conservative Party former cabinet member, to prepare a report which you can read here. He said:

“The problem of the compensation culture prevalent in society today is, however, one of perception rather than reality.”

He wasn’t the only one who thought that the compensation culture was bogus. Lord Dyson MR, the Master of the Rolls and second most senior judge in England and Wales, said in a 2013 lecture:

‘I doubt very much whether we are likely to see – in the medium term at least – any reduction in news stories expressing concern about our compensation culture. It is something of a mystery to me why the media find the compensation culture such a fascinating subject.’

LASPO Impact

Despite knowing that the compensation culture was a myth, the government’s determination to force through changes led to LASPO.

LASPO removed the innocent victim’s right to recover success fees and after the event insurance when using a no win no fee agreement.  Now winning claimants must pay for those things themselves.

The new rule affects people who bring no win no fee claims of any kind, including civil actions against the police.

If they lose they can avoid paying their own solicitor’s fees with a no win no fee agreement, but must still pay their disbursements and the other side’s costs, as LASPO has forced after the event insurers away from actions against the police.

And it doesn’t just affect people who have no win no fee agreements with their solicitors. Private clients also have to worry about paying for their own disbursements, and more importantly the police’s legal fees, if they lose.

Often cases that go to trial can rack up legal fees of over £50,000.

That’s enough to make even apparently well-off people like Paul Gambaccini think again before deciding to sue the police.

Qualified One Way Costs Shifting Uncertainty

A possible solution to this problem is for the government to extend Qualified One Way Costs Shifting (“QOCS”) to include cases where people sue the police.

QOCS came in at the same time as LASPO and applies to personal injury cases only.

It allows the accident victim to claim compensation knowing that, unless certain exceptions apply, they will not have to pay their opponent’s costs if they lose. They will only have to pay their own legal fees (unless they have a no win no fee agreement) and their disbursements (unless covered by after the event insurance).

(In accident claims after the event insurance is still available because claims are generally easier to predict and the market is much bigger than actions against the police.)

Actions against the police are different to accident claims as, in many cases where people sue the police, they do not suffer injuries, so QOCS would not apply.

But, in theory, it does apply to people who sue the police where they are also claiming personal injury, such as handcuffing injuries to the wrists, police assault injuries, and diagnosed psychological trauma.

Conveniently for the police, over a year and a half on from when LASPO came into force, we still don’t know if QOCS covers the personal injury element alone, or the entire claim.

This uncertainty means that there is a costs risk for the claimant if they suffered an injury, but more so if there is no injury claim.

Rights Under Attack

If Paul Gambaccini is a victim of police abuse and wants to sue the police his decision to go ahead may come down to funding. If he finds a solicitor willing to take his case on a no win no fee basis he may have protection for his own costs, but will still be exposed to significant costs risk if he loses.

He will then have to decide if suing the police is worth the risk.

Don’t misunderstand me. I take on new claims against the police every month.  In the right cases, I am comfortable acting under a no win no fee agreement, knowing that there is a risk I will not get paid. My practice is thriving because police abuse is routine and, provided my clients are comfortable with sharing the risks, worth fighting against.

I am dedicated to helping people sue the police because these cases impact us all. When brave victims of police abuse stand up to the State and seek justice, we are protected. By holding the police to account they improve their conduct, training, and policies. We all benefit, including the police themselves.

But without cases being brought by these determined people and their lawyers, the police are free to abuse the law.

 

If you want help to sue the police contact me on 0151 933 1474 or through my firm’s website.

 

Why won’t a solicitor take my no win no fee claim?

Photo of Kevin Donoghue, Solicitor, explains why a solicitor won't take a no win no fee claim.
Kevin Donoghue, Solicitor, explains why a solicitor won’t take a no win no fee claim.

By Kevin Donoghue, solicitor

You’ve decided to claim compensation, researched which solicitors’ firm to use, and got in touch with a lawyer.

But the solicitor you contact says they won’t represent you, even using a conditional fee agreement (also known as ‘no win no fee’) agreement.

If you’re in this position and find yourself asking “why won’t a solicitor take my no win no fee claim?” let me give some insight.

Funding Options, including No Win No Fee Funding

Funding for legal cases is something which all solicitors are under a legal duty to consider with their clients at the outset.

As you may know if you’ve read our page about how much it costs to make a police compensation claim, the page on our site about no win no fee accident claims, or the professional negligence no win no fee section of our website, we try to be clear and straightforward in our explanations of the various funding options available. These include:

  • legal aid;
  • paying for your case privately;
  • using before the event or union funding; and lastly
  • no win no fee agreements.

That way you know what to expect when you speak to us, or any other solicitor, about your claim.

Talking about how your case will be funded is important because starting a compensation claim (especially on a no win no fee basis) is a big decision, not least because of costs.

Prospects of Success and Costs

Unfortunately, there is never one simple explanation to answer the question “why won’t a solicitor take my no win no fee claim?”, but some common reasons are:

1.      The solicitor who reviewed your case is not confident it will succeed.

This is the most important reason, as solicitors only take cases on if they are confident that there is a reasonable prospect of winning.

It applies regardless of the method of funding used, even with private clients who pay their own legal fees, legal aid, and union- backed cases.

For a solicitor to:

they must have absolute confidence in the client, their case, witnesses, evidence, and many other things.

Solicitors want happy clients who win. Getting the maximum compensation for clients to help them get their lives back on track is what gets lawyers like me out of bed in the morning.

Losing benefits no one, especially the client, who will have wasted their time and effort in claiming compensation.

So the reasons for declining to act, especially on a no win no fee basis, are not purely selfish.

Of course, solicitors want to be paid for the work they do. (Law firms are not charities; they are businesses. In business, who doesn’t want to earn money?)

And losing a no win no fee case means that the solicitor would not get paid their own costs, which can run into the tens of thousands of pounds and put strain on the firm’s finances.

But there’s more to it than that.

Solicitors are under a duty to act in the best interests of their clients, who are called “claimants” in civil compensation claims.

And changes in the rules which came into force on 1 April 2013 mean that taking a legal case is now a more risky proposition for claimants.

Why?

Because the Legal Aid, Sentencing and Punishment of Offenders Act (2012) abolished the right of innocent claimants to recover “success fees” and after the event insurance from the losing defendant, or more usually, the defendant’s insurance company.

Success fees uplift the claimant’s solicitors’ fees to compensate for:

  • the risk of taking the case and losing; and
  • delaying payment.

After the Event insurance provides protection for the claimant’s own expenses, such as court and experts’ fees (called “disbursements”), barrister’s fees if necessary, and the other side’s costs.

Being able to recover success fees and after the event insurance from the losing defendant (or their insurers) meant that, before April 2013, the winning claimant would usually receive 100% of their compensation.

(This is why people commonly think of “no win no fee” as free legal representation, when in fact the term means that if you win, there is a fee. It’s just that, before 1 April 2013, that success fee was paid by the losing defendant and not the successful claimant.)

The system in place before April 2013 ensured that the winning claimant’s solicitor could get paid a fair rate (legal costs plus a success fee).

And the after the event insurance protection meant that, if the claimant lost their case, they would still be able to walk away “scot-free” as their solicitor would honour the no win no fee agreement and waive his or her fees, and the insurance would pay for the rest of the claimant’s expenses and the defendant’s costs.

But, since 1 April 2013, if the claimant loses they are only protected for their own solicitor’s fees (under the no win no fee agreement) unless “qualified one way costs shifting” applies. Now they have to pay for their own disbursements, barrister’s fees (unless also working under a “no win no fee” agreement), and the defendant’s costs out of their own pockets unless they can get after the event insurance and agree to pay for it out of their damages (if they win).

Since 2013 the market for after the event insurance has shrunk considerably, so that it is very difficult to get in some areas of law, such as actions against the police.

Without it, taking a case to court and losing could cost the innocent claimant thousands of pounds. Defendants and their insurers don’t instruct cheap lawyers and experts, court fees for running a case to trial alone can exceed £2000, and if you need an expert or two to prove your claim (most cases do), then you are responsible for their costs too. (Experts can’t work on a “no win no fee” basis because their duty to give an impartial opinion means they can’t be influenced to find in either side’s favour by the risk of not getting paid.)

Imagine taking a case to court, losing, and being left with a judgment debt for thousands against your name? You would have to find the money to pay the debt and deal with the impact on your credit score. All because you wanted to make a compensation claim.

For this reason alone, being told that your solicitor will not take your claim on a no win no fee basis, as a private client, or any other way, can be a good thing.

2.      Your claim is of low-value

The small-claims limit, below which legal fees are not paid, is £1,000 in personal injury cases, and £10,000 otherwise.

In principle, this means that most personal injury cases would be eligible for costs if successful.

But not all.

Minor injuries, limited psychological upset claims, and cases where the claimant makes a quick recovery, can mean that costs will not be paid even if the claimant is successful.

As a result, the claimant’s own solicitor’s fees and disbursements would have to be paid out of their damages. In practice, this means that the claimant would be left with nothing.

In other cases where personal injury is not claimed, such as many data protection breach claims, even recovering £9,999 would mean that costs do not have to be paid. Again, the winning claimant could end up with nothing once his or her own legal fees, disbursements, etc. have been met.

Going back to the discussion on After the Event insurance, even if the claimant is willing to pay for the insurance out of their own pockets, the fees can be extremely high, and often more than the total compensation the innocent claimant might expect to recover. So, in the event that the claimant succeeds in their claim, they might end up paying all of their damages over to their own insurer before also having to pay out of their own pockets for court fees, experts’ fees etc.

And that’s before paying the 25% success fee (or more with some firms, not Donoghue Solicitors) to their own solicitor.

With that in mind, why bother claiming at all?

This assessment is known as “the costs/ benefit analysis” and is part of the solicitor’s job of ensuring that they act in the best interest of the client.

Winning, but being left with nothing but debt, is clearly not in their best interests.

3.      Pressure of work

Solicitors are the most heavily regulated professionals in England and Wales. More than doctors. More than accountants. More than anyone.

The hoops they have to jump through to satisfy:

  • the Solicitors Regulation Authority;
  • their professional indemnity insurers ;
  • the Legal Ombudsman;
  • the Information Commissioner’s Office;
  • the Courts (solicitors are Officers of the Court, unlike barristers, and have specific duties to perform there); and
  • many others

mean that running cases is just one part of the job.

Failure to keep the governing bodies happy can result in serious consequences, including being struck off the roll of solicitors, having to close the firm, and bankruptcy.

It is no surprise then that many solicitors will limit the amount of clients they take, even if those people have potentially good claims, because they do not want to risk failing in their duties to their existing clients, governing bodies, staff, creditors, and others.

4.      Personality Issues

Making a compensation claim can be an uncertain business. When clients ask me “how long will it take?” the answer is always: it depends.

It depends on:

  • how much co-operation I receive from my client;
  • how quickly I receive the information I need to decide what to claim for, if at all;
  • if we have funding issues to deal with;
  • how quickly the defendant responds to the claim, if at all;
  • if the defendant fights the claim, and why;
  • if there are witnesses to track down and interview;
  • if we have to issue proceedings to force the defendant to produce evidence;
  • if we have to issue full court proceedings to take the case to trial;
  • if there are settlement negotiations;
  • what court delays we experience;
  • if we go to trial, and if a jury is involved; and
  • if we get paid, and when.

With all this in mind, compensation claims can take anywhere from a few months to many years. It is not uncommon for cases to take two to three years to reach trial.

Having a good working relationship between the solicitor and the client during the time a case is running is vital.

People work best with people they like.

It is for this reason that clients should make sure they have a good fit with a solicitor they like and trust before agreeing to start the relationship. After all, the solicitor will be making demands on their client’s time, resources, and potentially finances.

Solicitors think about whether the client is a good fit too. We can’t win cases on our own. We need our clients’ full, helpful co-operation.  And smart clients know that the solicitor needs to be left alone to do his or her job, that’s what the client is paying for after all. Constant emails, phone calls, and other interruptions not only increase the bill but result in a strained relationship, which is bad for both the lawyer and the client.

What to do if a solicitor won’t take your case on a no win no fee basis

Solicitors are generally free to decline to represent whoever they like. They don’t have to give reasons or enter discussions about why, but the reasons are likely to involve some or all of the issues above.

If the solicitor you approached won’t take your case there is nothing to stop you enquiring with another lawyer. There are over 140,000 solicitors practising in England and Wales so there are plenty of options.  The Law Society’s find a solicitor service is a good place to start.

 

Kevin Donoghue is the Solicitor Director of Donoghue Solicitors, a specialist law firm dealing with compensation claims against the police, personal injury accident claims, and professional negligence claims.