In Praise of Appraisals

Photo of Kevin Donoghue, solicitor, who discusses staff appraisals in this blog post.
Kevin Donoghue, Director of Donoghue Solicitors, explains the benefits of staff appraisals.

By Kevin Donoghue, Solicitor Director of Donoghue Solicitors

Most of the time I write on my firm’s blog about actions against the police, news and politics, and legal issues.

This is not one of those times. Today I want to talk about:

  • the team we have here at Donoghue Solicitors,
  • how staff appraisals bring out the best in us, and
  • why this matters to our clients.

How We Do Staff Appraisals

I recently concluded staff appraisals. Some managers dread them. They think of appraisals as box-ticking exercises and race through them.

Not me. As the director of my firm I find them essential, from both a management perspective and a personal one. We’re a small and close-knit team, and discuss personal and professional matters daily. But at the formal appraisals we take our discussions to a higher level, and deal with:

  • goals and objectives,
  • achievements, accomplishments, and responsibilities,
  • performance evaluation and areas for development,
  • career development, and
  • anything else we want to discuss.

Before the appraisals I ask all staff to complete a questionnaire and bring it to the meeting. I take this part seriously, dedicating time my team could otherwise spend working. They think about their:

  • past performance,
  • efficiency improvements,
  • responsibilities,
  • aspirations, and
  • anything else that comes to mind.

Armed with this information we have honest and open discussions in the appraisals. They take time, but are well worth it.

Outcome of Staff Appraisals

As expected, the appraisals brought out the best in my team. They told me that they want:

  • more responsibility,
  • challenging work, and
  • involvement in the future planning of the practice.

I was also impressed how they thought about, and wanted to take responsibility for, their own futures. Everyone’s training needs are different but they all want to improve. Some of my team are fortunate to be “millennials”. But they couldn’t be further away from the stereotype of people waiting for others to help them. They don’t want participation awards; they want to participate.

What came across was the genuine satisfaction Donoghue Solicitors’ staff have in their work and workplace. As I explained here in this post about why we do not pay staff bonuses, having a “client first” philosophy benefits everyone involved. My parents taught me to treat others as I want to be treated. We all win, especially our many satisfied clients, when our people have the best  tools and working conditions to do their jobs.

The appraisals energised my team. They are even more determined to showcase their talents and deliver for our clients. I’m lucky and proud to work with such an excellent, dedicated, and talented group of people. I knew this already, but it’s nice to be reminded.

Read more from Donoghue Solicitors’ expert team of lawyers on the blog.

Why Facial Recognition Technology is Another Home Office Failure

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

By Kevin Donoghue, solicitor

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

Facial Recognition Technology used at Notting Hill Carnival

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

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

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

Why does biometric data matter?

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

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

Inconsistency

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

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

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

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

He continued:

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

The government disagreed.

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

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

Further Legal Issues

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

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

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

Parliament

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

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

It can’t be right that:

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

Police Ethics

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

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

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

“Big Brother” Expansion

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

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

(my emphasis)

Another Home Office Failure

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

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

 

Read more from Kevin Donoghue on the Donoghue Solicitors blog.

 

Are police sexual exploitation cases being brushed under the carpet?

Photo of Kevin Donoghue, solicitor, who discusses police sexual exploitation.
Kevin Donoghue discusses police sexual exploitation.

By Kevin Donoghue, solicitor

In January Her Majesty’s Inspectorate of Constabulary (HMIC) reported on police sexual exploitation, also known as “police abuse of authority for sexual gain”. The police’s overseer found that, in the 2 years to March 2016:

  • Police abuse of authority for sexual gain is a nationwide problem. All but one police force had at least one case during the period.
  • There were 436 reported police sex abuse allegations made against the police in England and Wales (excluding British Transport Police)
  • 306 police officers were accused of this kind of police corruption
  • 28 PCSOs and staff were also accused
  • 40% of allegations involved victims of crime (who were vulnerable already)
  • 39% of accusations involved victims of domestic abuse.

It seems that everyone agrees this is a grave issue. HMIC Inspector Mike Cunningham described police sexual exploitation as the “most serious” form of corruption. Home Secretary Amber Rudd described the findings as “shocking”, saying it “undermines justice and public confidence”. The National Police Chiefs Council say this kind of misconduct in public office is a “disease” which “can never be justified or condoned”.

Despite this, HMIC found that less than half (48%) of all the police sexual exploitation cases it identified were reported to the Independent Police Complaints Commission (IPCC) for an independent investigation. HMIC said the police’s failure to refer matters to the IPCC was “disappointing” because police forces are aware of their obligations, shown by:

  1. the IPCC/ Association of Chief Police Officers report which raised the issue in 2012. The IPCC reported on it again in 2015, as did HMIC (as it was then known), and
  2. clear rules which state that police forces are required to report ALL of these “serious corruption” cases to the IPCC.

Perhaps even more troubling was the “apparent disconnect” between the numbers of alleged cases and staff dismissals. Between 1 December 2013 and 30 November 2014 only 33 officers were dismissed after having had a relationship with a vulnerable person.

This means that some officers who prey on vulnerable people for their own sexual gain stay in the police, giving them the opportunity to repeat this serious misconduct in public office.

Why are these things happening?

The story of one of my clients might help with an answer.

Police Sexual Exploitation by Phone

“Jean” (name changed for confidentiality) is a 61-year-old divorcee. She was married to a police officer for 15 years.

She met “John” on an online dating site. They became friendly but did not “click”, occasionally walking their dogs together. John was moving house and asked if he could store some boxes at her home. Jean agreed. He mentioned that one of the boxes had a home-made pornographic video of him and his ex-wife. Jean thought it was unusual that John would mention that, but was not interested in watching it.

John disappeared for a while. Jean later found out that he had been arrested. Jean contacted John’s daughter to find out why. She told Jean that John had been arrested for sex with a minor. Jean contacted the police and told them she had John’s stuff, including the sex tape. They collected it and viewed the video. It did not show John and his ex-wife. John had filmed himself having sex with a minor.

Jean was shocked and disgusted. How could she have become friends with this man? Her confidence was shaken, she felt vulnerable and emotionally raw.

Because of the serious nature of the case, a Detective Chief Inspector led the investigation. John was convicted and jailed with Jean’s help.

Months after the case ended Jean got a friendly text message from the DCI. She responded and they began texting back and forth. (This is known as “grooming” in sexual abuse cases.)

At one point the senior police officer sent her a picture of his erect penis. Jean was shocked, upset, and realised that the officer had been grooming her, abusing his position of authority for sexual gain. She immediately reported matters to another senior officer in the DCI’s force.

Police Corruption Investigation

As mentioned earlier, the IPCC’s rules are clear on what should have happened next. Matters involving “serious corruption” must always go to the IPCC for independent investigation. But what is “serious corruption”? Helpfully, HMIC defined it as the:

exercise of power or privilege of a police constable for the purposes of achieving a benefit for himself or herself, or a benefit or a detriment for another person, when a reasonable person would not expect the power or privilege to be exercised for the purpose of achieving that benefit or detriment; as defined in section 26 of the Criminal Justice and Courts Act 2015.

It went on to define “police abuse of authority for sexual gain” as:

a type of serious corruption, whereby police officers or police staff abuse their powers to sexually exploit or abuse people.

The officer’s conduct fits within both definitions. It was also a breach of the Police’s Code of Ethics  which states that police officers and staff must

not establish or pursue an improper sexual or emotional relationship with a person with whom you come into contact in the course of your work who may be vulnerable to an abuse of trust or power.

And yet, despite

  • the IPCC’s strict rules
  • HMIC guidance, and
  • strong evidence of misconduct (including my client’s account, text messages, and photographic evidence),

the officer tasked with investigating Jean’s complaint tried to get her to agree to the Force dealing with matters internally.

Jean‘s 15 years of marriage to a police officer made her suspicious of this offer. She thought that if the police investigated her complaint themselves it would be “brushed under the carpet”. In her view this was even more likely because it involved a Detective Chief Inspector, a very senior officer, who was near the end of a long and decorated career.

She refused the investigating officer’s proposal and demanded that her case be referred to the IPCC for an independent investigation. They are now involved and I am helping Jean with a civil compensation claim against the police.

Failure to Refer Police Sex Abuse to the IPCC

In my opinion, the DCI’s misconduct in Jean’s case was obvious. Despite this, the Force tried to persuade Jean to let them deal with her complaint internally. At this point we can only speculate why. I will press the police for an explanation during my client’s case.

Public Confidence in Police Sexual Exploitation Investigations

It is unclear why the majority of police forces wrongly deal with police sexual exploitation matters internally, especially when everyone agrees that this form of corruption is serious and wrong.

Police overseers have a duty to hold police forces and officers to account. One way they can do this is by strictly enforcing the IPCC’s mandatory referral rules when investigating police sexual exploitation. Only then can the public have confidence that this form of police corruption is being treated with the gravity it deserves.

Kevin Donoghue is a solicitor who represents victims of police abuse of authority for sexual gain at Donoghue Solicitors.

 

 

 

3 Urgent Changes Needed After Police Counter-Terrorism Raid

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

By Kevin Donoghue, solicitor

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

After the recent counter-terrorism raid in Willesden, North London, Ms Dick has an opportunity to show how she meets this Standard. She could immediately

  • issue body worn cameras to all firearms officers,
  • insist on their use, and
  • back proposed changes to post-incident investigations.

In doing so, the Commissioner would

  • meet her own duties and ethical requirements,
  • assist officers in theirs, and
  • lead other forces by example.

This is why.

London Counter-Terrorism Raid Shooting

On Thursday 27 April, Metropolitan Police officers shot a 21-year old woman in a planned counter-terrorism raid in Willesden, North London. The woman was arrested on suspicion of terrorism-related offences on her release from hospital a few days later.

The Independent Police Complaints Commission (“IPCC”) investigated right away. It reported that:

Initial accounts have been provided by all of the key police witnesses and the majority have now provided their detailed accounts of the incident, in line with current authorised police practice. None of those key police witnesses, those who were inside the property at the time the woman was shot, were wearing body worn video.

(my emphasis)

It is unlikely that there will be any other video footage taken from inside the woman’s home during the raid. If so, the IPCC’s investigators will have to rely upon the evidence of the officers involved. This situation is unsatisfactory because the officers involved can confer about what happened before providing their accounts. If the shooting victim has a different version of events, it will be hard for her to counter the police’s consistent and similar evidence.

The potential for abuse is obvious. But how can body worn cameras help?

Benefits of Body Worn Cameras

Police officers have used body worn cameras in the UK since 2005. In October last year the Met announced that it was issuing cameras to 22,000 frontline officers. Sir Bernard Hogan-Howe, the former Commissioner of the Metropolitan Police, promoted their use as he said they help the police get “the best evidence possible” and make sure the public can “hold us to account”.

He’s right on both counts.

As a solicitor who specialises in civil actions against the police I often disagree with police policies, procedures, and (mis)conduct. But on the use of body worn cameras I agree with the former Commissioner, especially when it comes to holding the police to account. As I explained here, body worn camera video evidence helped my client Paul Smith (details used with permission):

  • argue his case at the police station immediately after arrest,
  • secure his release from custody without charge, and
  • recover fair compensation as an innocent victim of police misconduct.

In doing so, the video also

  • helped the police deal with the consequences of officer misconduct, and
  • saved the taxpayer the cost of a court trial.

Even though the police need to improve their body worn cameras policy, I am firmly of the view that cameras are helpful and should be issued to all front-line officers as soon as possible.

But firearms officers must get this equipment first given their dangerous, and sometimes deadly, role. Influential voices in the police agree. According to Simon Chesterman, the National Police Chiefs Council lead on armed policing, firearms officers are “falling over themselves to get hold of these cameras”.

Inconsistency and Delay

So what’s the problem?

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

These are Authorised Firearms Officers who have undergone extra training. They deal with terrorist incidents and hostage situations among other duties.

In October 2015 the IPCC noted that, in contrast to Authorised Firearms Officers, Specialist Firearms Officers do not routinely wear body worn cameras. (Then) IPCC Commissioner Jennifer Izekor raised this glaring inconsistency in a letter to Sir Bernard Hogan-Howe.

In that letter the IPCC recommended that armed officers involved in “overt” operations should be equipped with body worn cameras “at the earliest opportunity”. Despite this recommendation, over a year and a half later it seems from the Willesden raid that Specialist Firearms Officers are still waiting. Simon Chesterman says that the Metropolitan Police intends to have every uniformed firearms officer wear one by the end of 2017. Why the delay?

(It’s worth noting the different treatment of “overt” and “covert” operations. The police are grappling with how to incorporate body worn cameras into undercover (“covert”) operations. A source says they use cameras fitted in buttons to avoid exposure.

No such issues arise with “overt” policing matters though. Anyone watching the footage from the planned Willesden counter-terrorism raid could be in no doubt. See the mobile phone footage from across the street here. This was a very public “overt” incident. The uniformed, armed officers, did not attempt to hide the operation. It will be interesting to know if the officers involved in planning considered using body worn cameras.)

Investigation Dispute

Despite broad agreement about the use of body worn cameras, police representatives and the IPCC disagree about how to investigate incidents involving death or serious injury. Firearms officers are particularly affected because of their role.

Simon Chesterman complained that the fears of post-incident investigations put off potential firearms recruits. He said that “There are things in the background that, if we don’t get them right, will put people off.”

To “counter some of the myths the Police Federation are putting out” the IPCC published its “Draft statutory guidance to the police service on achieving best evidence in death or serious injury matters” on its website. It sent the draft Guidance to the Home Office in February.

One of the proposed changes relates to how police officers presently confer with colleagues after death or serious injury incidents, which can include those involving firearms. The draft Guidance says:

Separation and prohibition on conferring

  1. Any conferring between witnesses has the potential to undermine the integrity of their evidence, and to damage public confidence in the investigation. As a result, non-police witnesses are routinely warned not to discuss the incident in question either before or after they have given their accounts. The same should apply to policing witnesses.
  2. Once the key policing witnesses have been identified: 20.1 They should be instructed not to speak (or otherwise communicate) about the incident with each other, or any other potential witnesses, both before and after they have given their accounts. 20.2 If it is necessary for key policing witnesses to discuss the incident with each other to avert a real and immediate risk to life, the extent to which such discussion has taken place, the justification for doing so and the content of that conversation, must be recorded as soon as possible.

20.3 From the moment it is operationally safe to do so, they should be kept separate until after their detailed individual factual account (“DIFA”) is obtained.

This change in the approach to taking police witness evidence was described by Sarah Green, the IPCC Deputy Chair, as merely “mirroring the approach police take with all key witnesses”. I agree with the IPCC on this. Allowing police officers to confer before providing their statements undermines investigations and public confidence.

The use of body worn video would help both sides of this debate. While it might not tell the whole story, it would ease the burden on officers. Their individual video footage could be reviewed along with their written accounts. And it would help speed up investigations, as it did in my client Paul Smith’s case. If firearms officers have acted appropriately, and are not “trigger happy” as was once suggested by their SAS trainers, then body worn video will help prove that and allow them to get on with their important work.

Proposal

Metropolitan Police Commissioner Cressida Dick, whose reputation will forever be linked to the fatal shooting of an innocent man, Jean Charles de Menezes, could take the lead here in three ways:

  1. Issue body worn cameras to firearms officers immediately.
  2. Insist that body worn cameras are required in all matters involving firearms officers, even covert operations.
  3. Support the IPCC’s draft statutory guidance on achieving best evidence in death or serious injury matters to promote transparency.

Doing these things would make sure

  • Metropolitan Police officers and their representatives,
  • the IPCC, and
  • the public

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

 

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

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

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

By Kevin Donoghue, Solicitor

Why did the police become militarised?

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

1. Terrorism

The perceived and (after last week’s horrific attack in London) real threat of terrorism has played a major role in the police becoming militarised. Irish republican extremists have given way to jihadists but the effect is the same. Their senseless attacks create fear, and fear of terrorism provokes a response in both the public and those charged with protecting us.

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

Chief Constables have addressed these fears in various ways. Some steps are less visible than others. After 56 people died in the 7 July 2005 attacks (known as “7/7”) the police and intelligence agencies changed procedures behind the scenes to work more closely together. But after the Paris terrorist attacks of 13 November 2015 the Metropolitan Police Service “reassessed its ability to respond to armed attacks”. This resulted in an extra 600 armed officers in the capital, bringing the total number to 2,800. Some police officers use SIG 516 semi-automatic carbine rifles and Glock 9mm handguns. They look more like SAS soldiers.

2. Budget cuts

In 2015 the BBC reported how the Conservative-led coalition government’s austerity measures imposed drastic cuts to police budgets. These resulted in an overall reduction of 18%. Police officer numbers declined by almost 17,000, with a loss of 15,877 support staff and 4,587 police community support officers. This put overall workforce numbers back to their 2003 levels. Despite the cuts crime continued to decline from its high-point in 1995.

And yet HM Inspectorate of Constabulary, the police watchdog, recently warned that some forces are dealing with the funding gap by putting the public at risk. HMI Zoe Billingham, who led the inspection, described how:

“During this inspection, we’ve seen how some forces are attempting to reduce pressure on their teams by artificially suppressing or downgrading calls upon their service, reducing their ability to take the most effective and prompt action. We think this is often an unintended consequence of recent changes forces have made, frequently in response to the challenge of austerity, and as they struggle to respond to increasing and ever changing levels of demand.

“Consequently, some basic things are not being done: we found evidence of fewer arrests being made, some crimes are being shelved without proper investigations taking place and suspects are not always being relentlessly tracked down. It is vital that police leaders take action now before these problems become more widespread and acute – so that the public are properly protected.”

One way forces have adapted is in the increased use of weapons, such as Tasers, PAVA spray, and spit hoods. These tools are relatively cheap and readily available. They require minimal training and, crucially for officers, have an immediate deterrent effect. If that fails, they can be used effectively for compliance and arrest. But, as I noted in this blog post on Tasers, and this one on spit hoods, forces are abusing this military-style equipment. They undermine public confidence in doing so.

3. Technology

Until the mid-1990s police officers walking the beat were often armed with nothing more than a simple wooden truncheon. (You can see some examples here.)

But, as with all things, improvements in technology and perceived demand for newer, better kit led to changes. Perhaps unsurprisingly, much of the development of this new equipment comes from the USA, with its large and enthusiastic police market driving innovation. For example:

  • the straight wooden truncheon has been replaced by items such as the ASP Friction Loc. This is a telescoping metal baton which its manufacturers describe as having “an incredible psychological deterrence and unparalleled control potential”. Forces also use side-handle batons modelled after martial arts weapons, such as the Monadnock PR-24.
  • Taser “stun-guns” fire two small-dart-like electrodes with conductor wires. The electrodes attach to the suspect before delivering an electric current which causes strong involuntary muscle contractions and “neuromuscular incapacitation”. They are effective in controlling the actions of a suspect by pain compliance. Tasers were initially issued to the police in 2003 and only to specially trained firearms officers. In 2008 Chief Officers were given the option of issuing them to other trained units. Recently Home Secretary Amber Rudd authorised the newer TASER X2. It delivers 2 shots instead of the previous X26, which issues only 1.Tasers are popular with officers. In 2015 the police used their Tasers 10,329 times. The Metropolitan Police Federation surveyed its members and found that 75% want all Metropolitan Police officers to have them.
  • CS (“tear gas”) and the more recent PAVA (“pepper”) Captor spray are riot control agents commonly issued to officers. When discharged to the mucous membranes of the face they cause a burning sensation, tearing to the eyes, mucous and spit, and a reflexive narrowing of the airways. Subjects have difficulty seeing and breathing. (Read how PAVA affected our client Paul Smith here.) CS was first introduced in 1996 and used more than 10,000 times between then and 1998, prompting a government safety review. PAVA Captor spray is now said to be used by over 60% of police forces, and claimed to be non-flammable and Taser-safe.

The use of this technology is not without controversy. As described in Part 1 of this blog people have died at the hands of police officers using it. And some of the equipment, such as spit hoods, has not been tested by government experts. Chief Constables must decide for themselves if they want to use these “barbaric” tools and, if so, what to buy, and what training to provide, and when to use them. This leads to dangerous inconsistencies in policing. Some forces, such as Kent, say they will not use spit hoods after spraying the subject with CS/ PAVA. Sussex Police do. (Read how Sussex Police officers spit-hooded my client Paul Smith (details used with permission) after spraying him with PAVA here.)

4. Internal Pressures

Police forces are no different to any workplace in that they are subject to politics and internal pressures. Police Federations, the staff associations which represent officers, campaign hard for officers to be given access to more and better law enforcement equipment.

While that is understandable, it is their job after all, sometimes their approach is unhelpful. After Avon and Somerset police officers mistook Judah Adunbi for a wanted man and Tasered him the local police federation chairman defended his officers, saying they were “doing what the public expect of them”.

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

Police federation campaigns can also serve to unnecessarily heighten concerns within their own members. The piecemeal roll out of spit hoods across the country has, in part, been based on misguided fears of contracting disease through spittle. West Midlands Police’s Force Health, Safety & Welfare Committee noted that:

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

And in February the Hepatitis C Trust and National Aids Trust expressed concern that spit hoods were wrongly being promoted as a way to help prevent hepatitis C and HIV. The Trust pointed out that:

“hepatitis C and HIV cannot be transmitted via spitting. Suggestions to the contrary are not only incorrect, but are hugely damaging as they reinforce existing stigma and misconceptions that surround both viruses.”

It went on to raise a wider point, about fear:

Such falsehoods also cause unnecessary alarm to police staff. Given the significant challenges faced by police officers in the line of duty, causing them to fear they have been put at risk when they have not places an undue burden upon them, and must not go unchallenged. While the debate around the use of spit hoods is an important one for the police, policy-makers and the public, hepatitis C and HIV are of no relevance to it and should not be used as justification for their use.

This matters because fear-driven officers may become more risk averse, ignoring the Police’s Code of Ethics. They may abandon less invasive techniques when dealing with people in favour of more draconian, militaristic methods.

We’ll look at the consequences of this in next week’s blog.

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

A Solicitor’s Review of 2016 and Predictions for 2017

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

By Kevin Donoghue, solicitor

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

1.      The proposed increase in the small claims limit

What happened in 2016?

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

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

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

Prediction for 2017

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

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

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

2.      Continued attacks on access to justice

What happened?

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

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

Prediction

Previous and current government policies, particularly:

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

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

3.      Failing Police Culture

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

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

a)      Police Complaints Reforms

What happened in 2016?

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

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

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

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

Prediction

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

b)     Body Worn Cameras

What happened?

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

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

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

Prediction

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

c)      Spit Hoods

What happened?

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

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

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

Prediction

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

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

Final Thoughts on 2016 and 2017

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

 

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

 

 

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.

 

3 Ways the Police Could Improve Their Body Worn Cameras Policy

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

By Kevin Donoghue, solicitor

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

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

What the University of Cambridge Study Found

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

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

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

The lead researcher, Barak Ariel, said, “I cannot think of any (other) single intervention in the history of policing that dramatically changed the way that officers behave, the way that suspects behave, and the way they interact with each other.”

Chief Inspector Ian Williams of West Yorkshire Police, one of the forces included in the study, described the body worn cameras as “excellent” and said there were many benefits, including less time spent at court, avoiding the need to call vulnerable victims to give evidence at court, and the increased detection rate.

Body Worn Cameras Policy Failings

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Issue 3: Police have power to edit footage

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

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

Recommended Action

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

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

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

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

How Can Police Justify the Use of a Spit Hood?

Photo of Kevin Donoghue, a solicitor who specialises in actions against the police, discusses spit hood use.
Kevin Donoghue, a solicitor who specialises in actions against the police, discusses spit hood use.

By Kevin Donoghue, Solicitor and Specialist in Civil Actions Against the Police

In an embarrassing climb-down reported in The Independent this week the Metropolitan Police (the “Met”) suspended plans to trial spit hood masks after pressure from human rights campaigners.

The news brought attention to the fact that spit hoods are presently used by forces throughout the country. Here I discuss the controversy by referring to one of my client’s cases to explain how the police use these masks.

Why the Metropolitan Police Suspended the Spit Hood Trial

The Met said it planned to use the controversial mesh masks, which it calls “spit guards”, to meet a “duty of care owed to officers” and protect them from spitting and biting. The proposals allowed for the use of spit hoods in 32 police station detention areas but not in public or on London’s streets. After announcing the plans on Tuesday morning (6 September) the force backtracked later that day saying “The Metropolitan Police Service has listened to concerns and will consult further before starting any pilot.”

It appears that the Met quickly changed its mind in the face of pressure from organisations such as Liberty, whose campaign group director Martha Spurrier, described spit hoods as “primitive, cruel and degrading” tools “that inspire fear and anguish” and “belong in horror stories”. Take a minute to watch this video and you’ll see what she means.

Widespread Spit Hood Use

The Metropolitan Police is Britain’s biggest force, employing more than 30,000 officers and nearly 50,000 people in total, so it is not surprising its plan to use spit hoods caught the public’s eye. What may be less well-known though, is that many other forces, including British Transport Police, West Mercia Police, and Sussex Police, already have spit hoods, which were used 513 times last year. And unlike the Metropolitan Police’s plan to limit spit hood use to police stations, because there is no national police policy on their use, other force officers are free to use them in public (as shown in the video at a train station above). The Police Federation, the police’s union, wants spit hoods to be used across all forces, but it’s up to the Chief Constables of each force to decide if they want their officers to be issued with them. Some of the larger forces, including West Midlands Police and Greater Manchester Police have yet to approve their use, perhaps because, as The Guardian says, some police chiefs have privately expressed concerns that they are reminiscent of hoods used at Guantánamo Bay.

The Chief Constables are right to be cautious. As well as the distressing “optics” of using spit hoods in public, there are very real concerns that their use could be a breach of a person’s human rights, particularly Article 3 of the Human Rights Act (1998) (“No one shall be subjected to torture or to inhuman or degrading treatment or punishment”). Even if that argument is not accepted by the courts, victims of spit hood use suffer physical and mental injuries which could justify a police complaint or actions against the police compensation claim, draining valuable time and resources from already stretched police forces.
Tweet: How can #police justify the use of

Sussex Police Use of Spit Hoods

So how do the police justify the use of spit hoods? Consider Paul Smith’s experience.

I previously wrote about Mr Smith (details used with permission) in a blog about body worn cameras (read it here– I referred to him as Mr A as his case was ongoing). Paul was arrested by Sussex Police, one of the forces which uses spit hoods, for

  • breach of the peace,
  • obstructing the police in the execution of their duty, and
  • resisting arrest

because he objected to the way police treated him for a minor traffic infringement.

After parking illegally outside Argos Mr Smith became upset when a female police officer and her male special constable colleague refused to let him go without penalty and took their time issuing a ticket.

The officer interpreted his agitation as aggression and called in a “10/20”, an emergency request for assistance. Back-up quickly arrived.

One of the back-up officers, PC X, looked like a “doorman or enforcer of some kind” and was dressed in a short sleeve shirt and black leather gloves. He took the lead and deliberately tried to provoke my client into challenging him. The officer became increasingly confrontational and accused Paul of being aggressive, despite my client remaining passive. After the officer called Mr Smith “a dick” he arrested my client for a breach of the peace. The officers manhandled him to the ground and one of them sprayed P.A.V.A. captor incapacitant spray at Paul’s face. (P.A.V.A. captor spray, also known as “pepper spray”, is absorbed through the mucus membranes of the eyes, nose, and mouth, and causes extreme pain similar to scalding heat as well as a reflexive narrowing of the airways.) Understandably, Paul tried to spit the spray out. The police put a spit hood over Mr Smith’s head, and handcuffed him to the rear.

With the spit hood in place Paul had difficulty breathing and clearing his airway. His pain and discomfort were greatly prolonged until the hood was removed at the police station.

PC X gave a written statement to justify his actions, claiming that Paul was aggressive and abusive. Unfortunately for him, two of the police’s own body worn cameras recorded the event. They exposed PC X’s false statement and I helped Paul win £25,000 compensation plus full legal costs for his actions against the police claim. Shamefully, PC X did not apologise, nor was he disciplined other than “management action”, a “slap on the wrist”.

Warning

There is no doubt that the Metropolitan Police has done the right thing by delaying its trial of spit hoods. Unfortunately, many other forces are already using them, with serious consequences for innocent victims of police misconduct, including this 11-year-old girl, who was hooded, handcuffed, and detained for more than 60 hours by Sussex Police (yes, them again). (In a worrying echo of Paul Smith’s case, Sussex Police also issued the officers in that case with mere “management advice”.)

I urge the Police Federation to think again before encouraging widespread adoption of these “barbaric” tools.

 

Kevin Donoghue is a solicitor who specialises in civil actions against the police. Contact him at www.donoghue-solicitors.co.uk/actions-against-the-police.

 

 

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.