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.