What Happened at a Private Dinner Hosted by Liverpool Law Society

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

By Kevin Donoghue, solicitor

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

Why I went to the dinner

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

Purpose of Meeting

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

Training Challenge

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

What Next for Liverpool Law Society?

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

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 Lawyers Need to be Creative

Photo of Kevin Donoghue, Solicitor, who discusses why lawyers need to be creative.
Kevin Donoghue, Solicitor, discusses why lawyers need to be creative.

By Kevin Donoghue, Solicitor Director of Donoghue Solicitors

 

A recent Telegraph Article got me thinking about creativity in the legal profession, and in particular, why lawyers need to be creative for themselves, their clients, and the economy.

As I explain below, lawyers must do their part by exploiting technology. And lawmakers need to adopt a two-pronged approach, by fostering creativity in one of the country’s major professions, and by resisting the temptation to interfere.

Why the UK Needs More Creative Jobs

Nesta, the innovation charity, says creative work takes place when:

tasks are highly interpretive, geared at ‘products whose final form is not fully specified in advance’, and when work task environments are complex.

Fostering this creative work is vital to the UK economy as the charity says that 35% of jobs could soon be fully automated with advances in technology.

Imagine a third of the working population losing their jobs in the coming years.

The worrying thing is, it’s been happening for years. We’re familiar with self-checkout at supermarkets and comfortable with riding on unmanned mono-rails and airport shuttles. And driverless cars are already a reality, if not ready (yet) for Britain’s streets. Don’t believe me? A car recently made a cross country trip of nearly 3,400 miles across the USA with a person taking over for only 50 miles of the journey. It won’t be long until computers, not people, are driving cars, buses, lorries, and trains.

In the legal profession, computers have brought massive changes to the way solicitors work. Lawyers’ use of computers has led to costs reductions and fewer roles for some people. 15 years ago high-street solicitors had their own secretaries. Now I don’t know of any such firm.

Secretaries have mostly been replaced by IT literate lawyers who produce their own work, some of which involves adapting precedents prepared by a more senior lawyer (like me!).

Despite these efficiencies, Nesta says in its report (at page 34) that “legal activities” have a 24.3% probability of computerisation. Less than the 35% average, but still worrying for a quarter of the profession, which in 2011 employed 340,000 people.

And we’re not the only ones. Much of a GP doctors’ work is routine practice management and compliance, police officers and teachers often complain about form-filling, and accountants use computer packages to pre-populate fields to do tax returns.

If we ignore this situation the burden on the state, which is already anticipating an increased demand on resources due to our ageing population, could be devastating. Estimates vary, but in this article the Institute of Directors say that the country’s debt could double, and that big businesses could collapse under the burden. And that’s without accounting for the increased cost to the NHS, social care etc.

Making More Creative Jobs

Nesta’s solution is for government to create 1 million creative new jobs by 2030 to make sure that Britain’s workforce remains employable and productive. Getting more, highly paid taxpayers into the working population is essential.

It recommends that the current focus on STEM subjects (science, technology, engineering, and maths) be widened to include art (making it STEAM).

So while the current focus is on the sciences, it should not be at the expense of the arts, especially those that involve critical thinking, persuading, socialisation, and reasoning. These skills are essential for the modern lawyer. It is no coincidence that the earlier definition of creative work perfectly describes a legal case, especially an accident compensation claim, where the issues are numerous and complicated, and the outcome is always uncertain.

Many people join the legal profession after honing these skills elsewhere, both academically and in other areas of life. For those who take a traditional route to qualification, it is quite common for solicitors to take an undergraduate degree in an arts subject (such as History, English, or Philosophy) and then take post-graduate courses in Law to gain the necessary qualifications.

At Donoghue Solicitors we have a number of people who did not go down the traditional university route of qualification. Instead, for some of our staff, learning on the job is being supplemented by evenings and weekends studying to become qualified. By avoiding university altogether and working in legal practice instead of a classroom, the breadth of experience, particularly in so-called “soft skills” such as negotiating and other people skills, can be far better. It is likely that these skills will remain highly prized, immune from computerisation, and should be encouraged.

The Current Impact of Computers

Increased automation at Donoghue Solicitors has led to better efficiency and, we like to think, better service. But while computers have changed many things for the better they won’t do away with the need for working people such as lawyers to use their brains creatively. As the Nesta report says at page 15:

While many creative occupations have undoubtedly been affected by computers, our findings show that computer–controlled equipment is unlikely to substitute for labour in creative domains. Rather, computers serve as a complement to most creative professions, making creative skills more productive. (my emphasis)

For example, in the case report of my client RL you can read how I had to think my way around a situation where the police wrongly raided my client’s flat and the story was publicised in a local paper and on the internet. Some of the creative issues were:

  • objectively assessing my client’s case and him as a witness
  • considering prospects and assessing risk
  • interpreting the law
  • developing the case, including identifying breaches and loss
  • persuading my opponent about the merits of the case
  • evaluating offers of settlement, and
  • advising, supporting, and working well with my client to ensure a satisfactory resolution.

While computerisation certainly helped with these tasks, without creative and critical thinking, essential soft-skills, and the ability to constantly re-evaluate a case considering numerous variables, compensation claims such as RL’s would not succeed and innocent people like him would be denied justice.

Damaging Government Interference

While I support Nesta’s demand to see government policy encourage creative professions, this is only one side of the coin. As well as asking lawmakers to actively promote creativity, we should tell them to stop finding ways to discourage it.

Over the past 15 years or so there have been many attacks on the legal profession which have drastically changed how solicitors work and how they manage their practices.

Nowhere is this more clear than in the field of personal injury accident claims, where successive governments have chased easy headlines to cut costs, reward donors, and curb the so-called and non-existent (read why here) compensation culture:

  1. In 1999 the government completely changed the way civil claims, including personal injury claims, are handled when it replaced the Supreme Court and County Court rules (“the White Book” and ‘the Green Book”) with a new set of rules, the Civil Procedure Rules. Overnight solicitors were expected to know and interpret these rules and, where cases straddled both the old and new rules, flexibly apply the law.
  2. Legal aid was withdrawn from most personal injury cases and replaced by conditional fee (“no win no fee”) agreements in the late 90’s. These have been through numerous changes over the years. Initially, success fees (an uplift to reward the solicitor for taking the risk and delaying payment) were recoverable from the client. Then they were recoverable from the losing party. Now they are not, and the client has to pay them again.
  3. Legal costs in personal injury claims have gone from being dealt with applying flexible guidelines known as “scale costs”, to fixed costs, with no flexibility. These fixed costs have been greatly reduced since 2013 leading many personal injury firms to adapt, merge, or close.
  4. Referral fees were allowed in 2004 which led to claims management companies, some of which, like Claims Direct and The Accident Group, had a spectacular growth and even more dramatic decline, causing inconvenience and loss to many innocent accident victims. The government belatedly tried to remove these companies by banning referral fees in 2013. Some firms, which relied on referrals for their work, went bust as a result.
  5. Court fees have recently been increased by as much as 600% (up to £10,000), leading to fierce criticism from judges. Paying this much money to the government up front is likely to price many people out of access to justice. It could lead to a double injustice, where innocent accident victims suffer due to someone else’s negligence, and are then denied access to the courts to seek a remedy.

Creativity in this context means managing a business through unnecessary changes created by lawmakers. Lawyers are constantly frustrated and confused by government meddling so it is unlikely that a computer program could be written to make sense of it.

Lawyers a Part of the Creative Solution

Despite the note of caution in Nesta’s report and government’s best efforts to change it, people working in the law are creative by profession and the legal sector has thrived. According to a report in “The City UK”, legal services doubled in size to £20.9 billion in 2011. The English legal system is the envy of the world and continues to attract people due to its fairness and high-quality, creative representation.

If for no other reason, the money it generates for our economy means that the legal profession should be considered alongside Nesta’s campaign to focus government funding. Properly prepared in creativity, the next generation of future-proofed school leavers could contribute to it. In turn, they would support the country through tax revenue, employment, and avoid the risk of being replaced by a computer and becoming a burden on the state.

 

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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.