How police ignore guidance on outcomes in police misconduct proceedings

Photo of Solicitor Kevin Donoghue, who considers the impact of the new guidance on outcomes in police misconduct proceedings.
Solicitor Kevin Donoghue considers the impact of the new guidance on outcomes in police misconduct proceedings.

By Kevin Donoghue, solicitor

Last week the College of Policing issued a new document: “Guidance on outcomes in police misconduct proceedings”.

The College, which issued the guidance, describes itself as “the professional body for everyone who works for the police service in England and Wales. Our purpose is to provide those working in policing with the skills and knowledge necessary to prevent crime, protect the public and secure public trust.”

The College says that the guidance should help those who conduct misconduct proceedings. It does not replace existing guidance. Instead, it pulls together relevant legislation, case law, and good practice into one document. By doing so, the College hopes the guidance will “bring consistency in applicable outcomes following findings in misconduct proceedings.”

But it warns that it “does not override the discretion of the person presiding over the proceedings and it cannot and should not prescribe the outcome.” It also says that even though, “The guidance is there to assist those presiding over misconduct proceedings, they are not required to use it.“

So what’s the point? The College says that it is there to “assist ensuring consistency in decision making.”

If so, then it could help promote fairness to both police and public, accountability, and transparency. Such guidance is long overdue. Because, as, one of my client’s cases shows, decisions in police misconduct proceedings can be curiously lenient to say the least.

Police Assault and Battery

Recently, my client “Peter” settled his compensation claim against Northamptonshire Police for £10,000 plus legal costs.

Peter and his partner were separated. She had the children. One evening Peter was home in his flat when his partner called. She told Peter that she did not like him and he would never see his children again. He was upset and got drunk to numb his feelings. The neighbour in the flat below called the police, saying that she heard crying and banging.

Two officers, a female police constable (PC C) and male special constable (SPC Y), were sent to investigate. The call was logged as ‘a person threatening to commit suicide’. (Peter denied he wanted to do this.) Paramedics also attended with an ambulance.

The female police officer, PC C, was wearing a body worn video camera. It filmed some of what happened. PC C talked to Peter, who said he did not want their help or to go to hospital.

The officers ignored Peter’s wishes and tried to get him to his feet. They banged his head on a wall and pushed him against it. They handcuffed Peter to the rear, telling him this was “for his own safety”.

The officers walked Peter out of his flat onto a communal landing area above a stairwell. They started walking down the stairs. The handcuffs hurt. They were too tight, and Peter begged the police to remove them. He got upset and raised his voice when they ignored him. SPC Y told Peter to stop shouting or “I will drag you down”.

Peter, who was still drunk, said, “Do it. Do it.” The special constable said, “O.K.” and pulled Peter forwards. Peter fell face first down six stairs. The handcuffs prevented him breaking his fall. Peter smashed his face and right shoulder against the wall and floor at the bottom of the stairs.

He screamed in pain. SPC Y aggressively shouted, “Get up!”. Peter thought the police officer might assault him again, so he kneed the special constable in the groin.

The police dragged Peter to his feet and SPC Y put him in a headlock. They took him to the ambulance and SPC Y told Peter that he is under arrest for assaulting a police officer.

SPC Y put leg straps on Peter. These, with the handcuffs, made Peter completely immobile and vulnerable.

But SPC Y goaded him, asking Peter “How many of us would you like to come down and sit on yer?”

The paramedics took Peter to hospital. Blood tests confirmed Peter had not taken any medication. As he had said, he did not attempt suicide.

The police took Peter to Brackmills Criminal Justice Centre. An officer interviewed Peter and put the “assault PC” allegation to him. Peter denied he was responsible and said again that SPC Y threw him down the stairs.

The police released Peter after 17 hours saying they would take “no further action”.

Peter filed a complaint against the police and an investigator took a statement from him. Investigators also took statements from PC C and SPC Y, and interviewed them both under caution. PC C described the actions of SPC Y- of pulling Peter down the stairs- as being “incorrect” and “excessive”.

But despite this SPC Y denied any wrongdoing. Even though PC C’s body worn video showed what had happened, he denied dragging Peter down the stairs. He said that he had merely pulled Peter closer to him to take him down the stairs. And he blamed Peter for his fall, saying that Peter dropped his weight on his legs and fell down.

SPC Y was unrepentant. He maintained that his actions were reasonable, lawful, and necessary.

Despite this, he was accused of alleged gross misconduct. After a misconduct hearing SPC Y received “final written warnings” in respect of three proven misconduct charges:

  1. authority, respect and courtesy
  2. use of force
  3. discreditable conduct.

Was that the right decision? Consider the “Guidance on outcomes in police misconduct proceedings” and make your own mind up.

What is police misconduct?

The “Guidance on outcomes in police misconduct proceedings” says that:

Misconduct is generally defined as unacceptable or improper behaviour and for police officers will involve a breach of the Standards of Professional Behaviour set out in Schedule 2 to the Conduct Regulations.

Under Regulation 3(1) of the Conduct Regulations:

  • misconduct means a breach of the Standards of Professional Behaviour
  • gross misconduct means a breach of the Standards of Professional Behaviour which is so serious that dismissal would be justified.

Purpose of police misconduct regime

It might surprise you to find out that “misconduct proceedings are not designed to punish police officers” (point 2.10). Instead, maintaining public confidence is key. As Lord Carswell stated in R (Green) v Police Complaints Authority:

“Public confidence in the police is a factor of great importance in the maintenance of law and order in the manner which we regard as appropriate in our polity. If citizens feel that improper behaviour on the part of police officers is left unchecked and they are not held accountable for it in a suitable manner, that confidence will be eroded.”

On this basis, the guidance states that the police misconduct regime should:

  • maintain public confidence in and the reputation of the police service
  • uphold high standards in policing and deter misconduct
  • protect the public.

There is a three-stage test for adjudicators considering police misconduct. They must:

  1. assess the seriousness of the misconduct
  2. keep in mind the purpose of imposing sanctions
  3. choose the sanction which most appropriately fulfils that purpose for the seriousness of the conduct in question.

Seriousness of police misconduct

The panel should assess seriousness by considering:

  • the officer’s culpability for the misconduct
  • the harm caused by the misconduct
  • the existence of any aggravating factors
  • the existence of any mitigating factors.

As the guidance notes at 4.10:

Culpability denotes the officer’s blameworthiness or responsibility for their actions. The more culpable or blameworthy the behaviour in question, the more serious the misconduct and the more severe the likely outcome.

And, at 4.11:

Conduct which is intentional, deliberate, targeted or planned will generally be more culpable than conduct which has unintended consequences, although the consequences of an officer’s actions will be relevant to the harm caused.

Consider SPC Y’s conduct in the light of this guidance.

SPC Y had no power in law to arrest Peter. This is because he had no honest belief that Peter was guilty of the offence for which he was arrested. He deprived Peter of his liberty without legal cause. False imprisonment is a serious matter.

Also, the special constable deliberately (or recklessly) assaulted Peter. SPC Y then tormented Peter, abusing his position of authority and humiliating his victim. After that SPC Y tried to avoid responsibility for his actions, blaming Peter for his fall. He refused to apologise or accept blame, even in the face of criticism from his colleague PC C and her body worn video evidence.

There is no doubt in my mind that SPC Y was responsible for his actions. This should have put him in the “more severe” category of likely outcomes.

Harm

Moving on to the harm caused by the misconduct, the guidance lists physical injury and loss of liberty as types of harm (at 4.57). It notes that “harm will likely undermine public confidence in policing.” And urges adjudicators to “always take seriously misconduct which undermines discipline and good order within the police service…”

SPC Y appeared to be out of control when he assaulted Peter. Even after the initial assault, he failed to regain his composure. He put Peter in a headlock, applied leg straps, and goaded him. Taken together, these physical assaults and false imprisonment amounted to harm likely to “undermine public confidence in policing.”

Aggravating Factors

The guidance describes aggravating factors in police misconduct proceedings as “those tending to worsen the circumstances of the case, either in relation to the officer’s culpability or the harm caused.”

Relevant factors which show a higher level of culpability or harm include:

  • abuse of trust, position, powers or authority
  • deliberate or gratuitous violence or damage to property
  • concealing wrongdoing in question and/or attempting to blame others
  • vulnerability of the victim.

SPC Y abused his position of authority as a police officer. He deliberately and repeatedly assaulted an intoxicated, and vulnerable, victim. He then tried to deflect blame, and refused to apologise for his wrongdoing. All this suggests a higher level of culpability and harm to the victim.

Mitigating Factors

The guidance says “Mitigating factors are those tending to reduce the seriousness of the misconduct.”

We don’t know what SPC Y raised in mitigation during his misconduct hearing. Relevant factors may have included:

  • misconduct confined to a single episode or brief duration
  • any element of provocation, threat or disturbance which may have affected the officer’s judgement, eg, in relation to the use of force in the heat of the moment
  • acting pursuant to a legitimate policing purpose or in good faith, ie, a genuine belief that there was a legitimate purpose but getting things wrong
  • mental ill health, disability, medical condition or stress which may have affected the officer’s ability to cope with the circumstances in question
  • whether the officer was required to act outside their level of experience and/or without appropriate training or supervision

SPC Y may also have offered personal mitigation, references etc.

Applying the guidance on outcomes in police misconduct proceedings

SPC Y’s conduct was considered serious enough to be dealt with at a misconduct hearing. The available sanctions were:

  • management advice
  • written warning
  • final written warning
  • dismissal with notice
  • dismissal without notice.

The guidance emphasises the need to “Consider less severe outcomes before more severe outcomes” and the misconduct panel stopped short of dismissal. It issued final written warnings instead. Why? When you consider the seriousness of his misconduct and the College of Policing guidance it strikes me that SPC Y got off lightly.

Peter and I both share concerns that this sends the wrong message to SPC Y and his colleagues. In effect, you’ll get away with it, even with body worn video evidence proving police misconduct.

The College of Policing says it hopes “The introduction of the guidance will mean there is increased fairness and proportionality in cases which is important for officers and public confidence in the hearings.”

If the way SPC Y’s misconduct was dealt with is anything to go by, it is long overdue.

 

Kevin Donoghue is a solicitor and specialist in police misconduct compensation claims.

 

Why We All Benefit When People Bring Claims Against the Police

Photo of Kevin Donoghue, a solicitor who explains why we all benefit when people bring claims against the police.
Here Kevin Donoghue, solicitor, explains why we all benefit when people bring claims against the police.

By Kevin Donoghue, Solicitor Director of Donoghue Solicitors

I recently wrote about why people bring claims against the police. Compensation is less important for many victims of police misconduct, especially when compared to:

  • restoring their reputations
  • correcting inaccurate police records/ destruction of DNA etc. which could impact on future job prospects/ parental access rights etc.
  • holding the police accountable for their actions
  • seeing that lessons are learned so that others don’t have to suffer similarly.

Effects When People Bring Claims Against the Police

So, bringing claims against the police helps claimants in many ways. But there’s more to it than that. It is not enough that victims seek and recover remedies and compensation for police misconduct, and that the police take steps to prevent a recurrence. For society to have confidence in the Rule of Law we must see that justice is done. By publicly bringing claims against the police, claimants:

  • fulfil a valuable civic duty by showing society that our constitutional rights can, and should, be upheld
  • remind police who abuse their positions of power that no one is above the law, especially those tasked with upholding it
  • contribute to changes to existing police policies, and to the development of new practices, which can help reduce police misconduct in future
  • help develop new law, which further protects our fundamental human rights.

In some cases, this is done by victims of police misconduct publicising their cases after they finish. For example:

1. Nigel Lang was wrongfully arrested on suspicion of possessing indecent images of children. He lost his job working with vulnerable young people, and suffered serious psychological effects.

With my help Nigel Lang received £60,000 compensation and made sure the police corrected his record.  Hertfordshire Police, the force which arranged for Nigel Lang’s arrest after incorrectly providing his IP address, apologised and confirmed it changed its procedures to prevent a repeat of his ordeal. All this has helped him start to rebuild his life.

TV appearance

But even though it was hard, Nigel recognised the importance of telling the public about what had happened for the reasons above. I arranged for him to speak with journalists from Buzzfeed News. Later he appeared on the BBC’s Victoria Derbyshire programme before a nationwide television audience. By doing so he raised public awareness of the devastating effects of what the police pithily described as an “administrative error”.

 

2. Paul Smith was late for work and frustrated at the delay in being issued a parking ticket. When things escalated he was wrongfully arrested, assaulted, “pepper” sprayed, and put in a spit hood in full view of the public in his home town of Hastings. Paul’s painful and humiliating experience was made worse because he felt that his family, friends, and neighbours thought he was somehow responsible. The £25,000 compensation he received helped prove his innocence to them and restore his reputation.

Spit Hood Dangers

Like Nigel Lang, Paul wanted the public to know what happened and to understand the horrendous experience of being spit-hooded. He kindly agreed to me using his details when discussing his case in radio interviews and online. I referred to Paul’s case to explain what happens when the police spray victims with PAVA “pepper spray” before applying spit hoods. Among other things:

  • the spray causes a reflexive clearing of the airways which can (wrongly) be interpreted as spitting at an officer, and
  • hooding people who have been sprayed increases the risk of suffocation, causing serious injury or, in the worst cases, death.

Bringing attention to these risks ought to raise public and police awareness about these potentially deadly tools.

Public Vindication in Civil Courts

In other cases, bringing claims against the police also extends to publicising misconduct in courtrooms where the public, journalists, and others can see justice being done. For example:

1. I represented James Parry, a prominent solicitor based in Merseyside. He was wrongfully arrested after agreeing to attend a local police station for a voluntary interview with a police officer investigating an alleged theft. The arrest smeared Mr Parry’s professional reputation as it called into question his honesty. It was worse because he is a criminal solicitor who often represents clients at Merseyside’s police stations.

The police refused to accept wrongdoing so we took James’s case to trial in Liverpool County Court, where he won £9,000 compensation for his false imprisonment claim. Pubic vindication by a judge in court was of vital importance to my client as a solicitor who appears in Liverpool’s courts daily. His story was also reported in the Liverpool Echo and the Law Society Gazette, the trade magazine for the legal profession, helping further public knowledge and (hopefully) change the police’s procedures with respect to voluntary interviews.

Police Confusion

Merseyside Police issued a statement in response to the press reports saying:

‘The force carefully considered this civil action and it was thoroughly examined by our legal department who also sought external legal advice. As a result, it was decided that it was appropriate to defend the claim and test the facts in court.’

(my emphasis)

This is an apparent misunderstanding of the law because it wrongly suggests that the burden of proof is on the claimant in false imprisonment claims. I wrote a blog post to clear up any confusion on the part of the police. I hope Merseyside Police read it and apply the well-established principles to save others from Mr Parry’s experience.

2. Another of my clients recently won her case at Cardiff County Court after being wrongfully convicted of assaulting a police officer. My client, who worked part-time as an SIA-accredited steward, was driving home when the police pulled her over. Things got out of hand and the officers assaulted and arrested her. To her horror, the officers falsely claimed that my client had assaulted one of them in the execution of his duty. The police prosecuted, and convicted, her at the Magistrates’ Court on the basis of the officers’ false evidence. She appealed to the Crown Court, where the court found no case to answer and quashed her conviction.

Civil Court Judgment

But that did not go far enough to restore her reputation, clear her record, and hold the police to account for their appalling misconduct. I took her case to trial where the Judge made a public finding against the police. He said,

“In my judgment the arrest and prosecution of the Claimant was the result of a face-saving exercise by the police officers involved, who had allowed a trivial event to become an incident in which an innocent member of the public had been assaulted and injured by them”.

This finding was essential to my client personally and in her work as she could now correct her police record. The court also awarded my client more than £70,000 compensation, a large amount which reflected the serious nature of the police misconduct. The judgment was also important for the public, as it showed that the police can be held to account.

Justice Done

Understandably, some people can be in two minds about whether to bring claims against the police. Proceedings can be stressful, hard-fought, and take a long time. Challenging the misconduct of “our brave boys in blue” may be unpalatable, especially for people who have never been in trouble with the police before. But we should all recognise the bravery of victims of police abuse, because, as Lord Chief Justice Hewart said in R v Sussex Justices ex p McCarthy (1924):

“[It] is of fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done.”

Kevin Donoghue is a solicitor who helps people bring civil actions against the police.

Should Police Spit Hood Equipment be Used on Children?

Photo of Kevin Donoghue, solicitor, who examines police spit hood use on children in this blog post.
Kevin Donoghue asks if police spit hood use on children is appropriate.

By Kevin Donoghue, solicitor

On BBC Two tomorrow (6 December) Victoria Derbyshire will discuss an alarming increase in the use of police spit hood equipment on children as young as 8 years old.

Spit hoods, or, as the police would prefer, “spit guards”, are mesh fabric hoods police officers use to protect themselves from infection when detaining suspects. They are classed as a use of force by a police officer so that when police spit hoods are misused they can lead to misconduct investigations and significant actions against the police compensation awards.

So far, the controversial masks have only been adopted by a third of police forces nationwide. It has been reported that some Chief Constables are worried that the spit hoods available for use by UK police forces are reminiscent of the hoods used on detainees at Guantanamo Bay. And it is interesting that the Metropolitan Police is consulting on their use in police station custody suites only, out of public view.

Police Spit Hood Ban Demand

The Children’s Rights Alliance for England, together with their counterparts in Scotland and Wales, have called for a ban on the use of police spit hood equipment on children, and the Independent Police Complaints Commission (“IPCC”) has expressed concern about their use. In one particularly disturbing case Child H, an 11-year old girl, was twice placed in a spit hood by Sussex Police officers while being detained for a total of more than 60 hours. Eleven police officers and one police staff member were found to have cases to answer for misconduct following Child H’s police complaint and the IPCC investigation.

I expect that the Victoria Derbyshire programme will discuss the police’s response to a Freedom of Information Act (“FOIA”) request made by the Children’s Rights Alliance. Although I have yet to see it, I understand that the response confirms a 250% increase in the use of police spit hoods on children aged between 8-15 years old. (From 8 recorded instances the previous year, to 20 this year). This figure may be an underestimate because Freedom of Information Act responses by the police can be incomplete. Sometimes forces simply fail to respond to FOIA queries. As the BBC reported, one estimate of police spit hood use was likely to be low because “some forces haven’t disclosed the numbers”. In other cases, such as in Sussex Police’s Child H case, the police officers themselves failed to correctly record their use of force. The IPCC said this was a “very worrying failure in that it indicates a lack of appreciation of [officers’] own accountability”.

The police have an understandable desire to ensure their own safety and promote public acceptance of “spit guards”. (I expect anyone interviewed from the police’s side to use that phrase rather than the more widely used and understood “spit hoods”. Read why this piece of PR spin matters here.) But despite the police’s concerns, in a civilised society should we allow them to subject children to these “primitive, cruel and degrading” tools?

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

Update: 6 December 2016

As expected, the Victoria Derbyshire programme discussed the use of spit hoods today. You can watch the discussion here (fast forward to the 1 hour 22 minutes 26 seconds mark).

Ms Derbyshire quoted figures provided by “a children’s charity” (I assume it was the Children’s Rights Alliance for England which produced this report on the State of Children’s Rights in England), which said that:

  • spit hood use on under-17s tripled in the last year (from 8 cases to 24)
  • “the true the number could be even higher”
  • in 2015 spit hoods were used on 12 children in England with the youngest being 13 years old.

In a harrowing story, a mother described how her 11-year-old daughter was restrained using a spit hood:

Mother: She just came shuffling. They had her under each arm and she had a spit hood over her head, and leg and ankle restraints on, and her head was hanging, and she had no, like, fight left in her any more, and they were literally dragging her with no shoes on. And then they put her on the floor.

Interviewer: That must have been very upsetting to see?

Mother: Yeah. I have nightmares about it.

Shamik Dutta, Lawyer at the charity Inquest, and Che Donald, Sergeant in Sussex Police and spit hood (a.k.a. “spit guard”) lead at the Police Federation, also appeared on the programme.

Arguing against the use of spit hoods, Mr Dutta said that their use is both “barbaric and unnecessary”, and that the majority of police forces do not use them. He explained that people can die when restrained face-down with handcuffs due to “positional asphyxia” (suffocation). Wearing a spit hood increases this risk because it is harder to see the suspect’s face. This makes it difficult for the police to know if the person is suffocating. And, because the victim can’t breathe they are unable to tell the police what’s happening.

Che Donald argued against this version of events, saying that the use of the “spit guard” reduces the risk. But when asked if he agreed that it was more difficult to see someone’s face with a spit hood on he said, “I appreciate that.” He also said that, because of the risk of assault by spitting on police officers, “I wouldn’t have a problem using it (a spit hood) on anyone under 17.”

Mr Dutta pointed out that spit hoods are used in conjunction with other forms of restraint. He argued that the use of the spit hood in addition to these other forms of restraint places suspects, especially children, at unacceptable risk of death or serious injury.

I have previously written about the risks Mr Dutta described. Click here to read more about them.

 

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.

 

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.

 

 

Five Tips to Find the Best Solicitors to Sue the Police

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

By Kevin Donoghue, solicitor

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

Unbiased? Really?

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

Why People Sue the Police

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

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

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

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

Five Questions to Find the Best Solicitors to Sue the Police

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

  1. What do you need?

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

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

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

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

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

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

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

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

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

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

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

  1. What’s their track record?

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

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

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

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

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

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

More Help to Sue the Police

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

Good luck!

 

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

 

Are Merseyside Police Confused About the Burden of Proof?

 Solicitor Kevin Donoghue (right) pictured with his client James Parry.
Kevin Donoghue, solicitor, explains the burden of proof in false imprisonment cases.

By Kevin Donoghue, Solicitor Director of Donoghue Solicitors

Last week my client, Liverpool solicitor James Parry, was awarded £9,000 compensation in his false imprisonment claim against Merseyside Police. You can read about the case at The Liverpool Echo and The Law Society Gazette websites.

These press reports included a statement from Merseyside Police. As a solicitor who specialises in civil actions against the police I am concerned that the quote provided by Merseyside Police appears to mis-state the burden of proof in false imprisonment cases. This may give the wrong impression about our legal rights resulting in Claimants and inexperienced lawyers abandoning genuine claims once they receive the police’s denial of liability.

As a result, innocent people could be left with the distress, upset, and lifelong humiliation of an arrest. For some, this could have devastating consequences on their personal and professional lives. In this blog post I’ll clarify the law on the burden of proof and the consequences of getting it wrong.

Claim Against Merseyside Police

On Thursday 10 December 2015 HHJ Parker sitting at Liverpool County Court entered judgment for my client, James Parry (details used with permission), after finding that a Detective Constable from Merseyside Police unlawfully arrested and detained him (a.k.a. false imprisonment).

Both The Law Society Gazette and Liverpool Echo reported the story and asked Merseyside Police for a comment.

I was concerned when they issued a statement saying: “The force carefully considered this civil action and it was thoroughly examined by our legal department who also sought external legal advice. As a result, it was decided that it was appropriate to defend the claim and test the facts in court.” (my emphasis in bold)

This statement seems to suggest that Merseyside Police are dealing with civil claims for false imprisonment under the mistaken impression that it is for the Claimant to discharge the burden of proof and justify arrest.

In fact, once the Claimant has proved confinement, which in most cases is not in dispute, the burden of proof shifts to the Defendant to justify it. The legal position is as follows.

The Law in False Imprisonment Cases

False imprisonment is defined as the “complete deprivation of liberty for any time, however short, without lawful cause”. (See Clerk and Lindsell on Torts, 19th edition, 2006, 15-23.)

It is established on proof of:

  1. detention; and
  2. the absence of lawful authority to justify that detention.

The Claimant must prove the first limb (that they were imprisoned) but once he or she has done this, the onus then lies on the Defendant to prove the second limb (justification). (This was established in Hicks v Faulkner (1881).)

As a result, the burden of proof is quickly shifted to the Defendant and, as stated in Liversidge v Anderson (1942), every imprisonment is prima facie unlawful.

There is no minimum period of detention for a claim to succeed although the length of detention has a bearing on the level of damages.

False imprisonment is actionable per se. That is, it’s not necessary for the individual to have suffered any damage or for them to be even aware of their false imprisonment. (See Murray v Ministry of Defence (1998).)

In Mr Parry’s case against Merseyside Police, there could be no doubt that his confinement was total. He was arrested and detained for over five hours. This was not in dispute, so Mr Parry had satisfied the first limb before the case got to Court.

So the burden of proof at the trial was entirely on the police. It appears that the person who provided the statement to the press was unaware of this fact and the effect of the two-stage test established over 130 years ago.

Fortunately, the Judge who heard the case was under no such misapprehension.

How the Police Defend False Imprisonment Claims

The most common defence to discharge the burden of proof is that the Defendant police force (through the arresting police officer) was carrying out a lawful arrest.

Sections 24 and 28 of the Police and Criminal Evidence Act 1984 (as amended) show that the following conditions for a lawful arrest are necessary:

  1. the arresting officer honestly suspected the arrested person was involved in the commission of a criminal offence (the subjective test);
  2. the arresting officer held that suspicion on reasonable grounds (the objective test);
  3. the arresting officers’ reasons for effecting an arrest amount to a reasonable belief that the arrest was necessary, usually to allow the prompt & effective investigation of the offence or of the conduct of the person in question (the necessity test);
  4. the officer informed the arrested person of the fact & grounds of arrest as soon as reasonably practicable (the section 28 test); and
  5. the arresting officer’s exercise of his or her discretion to arrest was reasonable in public law terms because PACE confers a discretion, not a duty to arrest (the Wednesbury test).

The Court’s Views on the Law in James Parry’s Case Against Merseyside Police

Necessity for arrest (condition 3) was the central point in dispute in Mr Parry’s case against Merseyside Police. An officer arrested him despite my client attending by prior appointment for a voluntary interview at a police station.

The arresting officer explained to the Court that he formed a view that it was necessary to arrest James Parry when he reviewed the evidence in August 2010, prior to making contact on 6 September. He said that he wanted to make sure that he had a degree of control and, with no knowledge of Mr Parry, was compelled to arrest him.

It appears that the Detective Constable failed to appreciate that he did not have to make an arrest to have the control he wanted and that at any point during the interview process he could have taken that step.

The Judge found that the arresting officer failed to direct his mind to the question of necessity for arrest. If he had done so, he would have concluded that it was not necessary.

Consequently, Mr Parry’s arrest was rendered unlawful and Merseyside Police failed to discharge the burden of proof.

The Cost to the Public

The arresting officer’s mistake led to an innocent man of standing suffering significant reputational damage, distress, and humiliation.

But he does not bear sole responsibility for this matter. If the police’s statement to the press is taken as written, Merseyside Police’s lawyers seem to misunderstand the law as well.

Instead of accepting responsibility, the force’s legal team sought to “test the facts at court”, a decision which will directly cost the police £9,000 in damages, plus combined legal costs for both sides of well in excess of £100,000.

With considerable budget cuts over recent years Merseyside Police and the tax-paying public can ill-afford to get this wrong.

 

If you want to claim compensation for false imprisonment contact Donoghue Solicitors, on 0151 236 1336, or fill out the form on this page.

Can I Claim Compensation for a Mistaken Identity Arrest?

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

 

By Daniel Fitzsimmons, GCILEx

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

Client 1: mistaken identity arrest at an airport

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

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

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

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

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

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

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

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

Client 3: Mistaken Identity Arrest for serious sexual offences

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

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

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

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

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

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

He too was released without charge.

Reasonable Suspicion and False Imprisonment

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

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

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

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

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

It is established on proof of:

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

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

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

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

This law says:

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

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

(a)anyone who is guilty of the offence;

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

(my emphasis in bold)

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

Two-Stage Test

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

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

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

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

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

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

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

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

 

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

 

 

 

 

 

 

 

 

Five Ways to Cut Police Complaints

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

By Kevin Donoghue, Solicitor Director of Donoghue Solicitors

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

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

IPCC Police Complaints Report

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

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

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

Police Complaints Plan

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

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

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

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

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

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

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

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

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

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

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

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

iii. Incentivise police forces through financial rewards/ penalties

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

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

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

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

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

v. Senior Police Officers to lead a culture change

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

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

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

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

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

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

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

Effort

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

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

 

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

 

 

 

 

The Compensation Culture Trick

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

By Kevin Donoghue, Solicitor Director of Donoghue Solicitors

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

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

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

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

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

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

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

Freedom of Information Act Data

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

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

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

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

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

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

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

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

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

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

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

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

 

Analysis of Data

These figures show the following:

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

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

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

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

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

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

Compensation Culture Myth

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

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

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

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

Many of my clients want things that cost nothing like:

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

In short: they want justice.

A recent case of mine proves this point.

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

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

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

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

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

Misdirection

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

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

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

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

 

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