A significant issue when considering taking action against the police or any other Defendant is legal costs; both the Claimant’s own and those of the Defendant which could become payable should the Claimant issue court proceedings and the claim ultimately fails.
There is a significant disparity in arms between the ordinary citizen who believes they have been wronged by a Police Force, and each of our regional Constabularies on the other hand, who naturally have access to significant legal and financial resources beyond the reach of the vast majority of individuals in this Country. One of the fundamental tenets of our Civil Justice system is to protect and correct against such disparities having a negative impact on the delivery of justice – as enshrined, in the text of the Overriding Objective of the Civil Procedure Rules (“…ensuring that the parties are on an equal footing…”).
In personal injury claims, to ensure access to justice, Claimants can bring a case to trial without fear of being ordered to pay the Defendant’s costs if their claim proves unsuccessful by reason of Qualified One Way Costs Shifting (“QOCS”).
However the remedy of QOCS does not cover claims for False Imprisonment, Malicious Prosecution, Trespass or breaches of the Human Rights or Data Protection Acts which are common causes of action against the police.
Legal Aid does still exist for claims involving false imprisonment or malicious prosecution, assault and battery and misfeasance in public office – torts which are central to upholding the citizen’s rights in the face of misconduct by agents of the State. But of course, Legal Aid is subject to a means test, and hence huge swathes of society are not financially eligible for it – i.e most of the working population. When Civil Legal Aid was reviewed in 2008, it was found that only 29% of the population qualified on their means, compared with 80% when Legal Aid was first introduced – and in the decade since, that percentage can only have declined further as eligibility criteria have been made ever more stringent.
Legal Aid gives those people who are eligible for it both a sword and a shield, in the sense that it will fund their legal costs and protect them from having to pay the legal costs of their opponent. In terms of actions against the Police, and associated matters, for those who are not eligible for Legal Aid funding (which as I say are clearly the vast majority of the population) it is not so much the loss of the sword than of the shield that is the real problem. In the absence of Legal Aid funding there is a viable alternative for those who cannot afford out of their income or savings the tens of thousands of pounds it often costs to bring a case such as this to a successful conclusion – lawyers such as me who specialise in this area will assume the risk of taking meritorious cases on a no win, no fee basis. So in that respect, access to justice is available for that swathe of the population between the very poor and the very wealthy – the middle class in general.
But what neither I nor other Actions Against the Police lawyers can replace is the loss of the ‘shield’ of Legal Aid. Most legal expense insurance companies simply do not offer cover for claims of such a complex and high risk area of the law as actions against the Police (as oppose to often much more straightforward accident claims against private individuals) and nor are they likely to as the commercial incentive is lacking. Prior to 2013 the claimant in an action against the police case could take out an insurance policy to protect themselves from the Defendant’s costs (payable if the case failed) and expect to recover the cost of that insurance (which could be in the region of £40,000 + if the case went all the way to Trial) from the Defendant if they (the Claimant) won. In 2013, the Government changed the law so that legal expense insurance policy costs cannot be recovered from the other party even if you win your case, meaning it is simply ‘not economic’ to take such insurance out, even if you could find an insurer willing to cover your case – as it would wipe out your damages.
It is quite normal for the damages award in a meritorious claim against the Police to not exceed £25,000 (bear in mind that the Thompson & Hsu v Commissioner of Police guidelines (allowing for inflation) set a ceiling of £5,640 for basic damages for 24 hours false imprisonment, and a maximum of £18,799 for a malicious prosecution going all the way to a Crown Court trial over a period of years). There are of course much wider benefits both to the individual Claimant and society as a whole conferred by the successful litigation of such a claim – vindication for the individual, the reinforcement of his or her sense that justice will be done and that the social contract is not dysfunctional and the holding to account those who abuse positions of power; by means of proper public and judicial scrutiny, ensuring that those invested with authority by government remain within the bounds of the law and thereby preventing, or reducing as far as possible, future incidents of misconduct. Thus, civil legal actions in this field are one important answer to the age-old question “Quis custodiet ipsos custodes?” or “Who polices the police?” As my colleagues in the Police Action Lawyers Group wrote in submissions to Lord Jackson’s Review of Fixed Recoverable Costs (2017) –
“These cases serve a crucial function in underpinning and upholding the rule of law by scrutinising the police and other state bodies with power to detain and prosecute. That scrutiny inevitably shapes how those bodies conduct themselves.”
It strikes me as bizarre that the remedy of QOCS which is in effect a ‘replacement’ for insurance policies is available only for those people pursuing personal injury claims arising from negligence and not for those who have suffered much more fundamental infringements of their rights – those who have been injured through targeted malice or deliberate infliction of violence by the police (rather than mere negligence), who have wrongly been subjected to the stress and torment of a drawn out criminal prosecution or who have wrongly been imprisoned in police custody, often for the very first time in their lives.
It is in my opinion clearly inequitable and unjust that Claimants in actions against the police claims do not have the same protection as is offered to road traffic accident victims by QOCS. Indeed, the application of QOCS in its current format appears in significant contrast to that which was envisaged by its ‘originator’ Sir Rupert Jackson in his Final Report on civil justice reform in January 2010 when he specifically endorsed claimants in actions against the Police as an example of those who might well merit protection under the QOCS umbrella, on the grounds of social policy and because of the strikingly asymmetrical relationship between claimants and defendants in such cases – manifestly undeniable in terms of litigation power and resources.
Sir Rupert spoke in his Final Report of a “coherent package of interlocking reforms, designed to control costs and promote access to justice” – yet the non- application of QOCS to actions against the Police and other State authorities, as matters currently stand, means we have been left, at least in this field of law, with incoherence and an obstruction of access to justice – one reform (the removal of recoverability of ATE premiums) being implemented without the complimentary other (QOCS) – so rather than a neat interlock of reforms, we are left with something that is broken and semi- dysfunctional.
This is not just a theoretical problem. In my practice I have seen clients scared away from pursuing what I believe to be strongly founded and meritorious claims against the police because they cannot take the risk of losing their house and savings if the claim does not succeed. Any action brought against an agency of the State by a private individual is clearly one in which the Claimant is fighting an uphill battle, but the gradient up which he must struggle has now been made dramatically steeper (and the risks if he fails significantly greater) because – as it appears to me – the law was changed at a stroke and left those who have suffered from police misconduct hamstrung by the wayside.
I myself have represented Claimants who, after considering these risks, have decided only to pursue a claim for assault against the Police, when they have equally meritorious claims for false imprisonment and/or malicious prosecution, because an assault claim involving personal injury “alone” has the full protection of QOCS. One such example is a case in which I represented a young man of good character who had been savagely bitten by a Police dog, requiring hospitalization – from which hospital he was taken under arrest to a Police station, charged with affray, and subsequently prosecuted over many months before his innocence was vindicated at a Magistrates Court trial. This young man was in regular employment and hence did not qualify for Legal Aid; when faced with the costs risk of pursuing his claim to Court he therefore took the decision to proceed with his personal injury claim only – a decision based not on the merits of his potential claims for false imprisonment and malicious prosecution which I felt were strong – therefore not on considerations of the applicable law or the facts – but simply because of the present defective state of access to justice. My client could have faced financial ruin if he pursued those heads of loss and failed, because they carry no QOCS protection. I felt that this was a grave injustice; when the Police eventually settled my client’s claim (shortly prior to the trial of his County Court action) they only had to compensate him for the injuries inflicted by the dog attack – and not for his loss of liberty nor the immense stress of the prosecution they had brought against him – and thus they escaped proper scrutiny of their actions. I strongly believed that my client had only been arrested, and then prosecuted, to provide a smokescreen for the unlawful actions of the dog handling officer, but these issues never came before the Court for adjudication, plainly and simply because of the absence of QOCS. If my client had been impecunious, or if, on the other hand he had been a millionaire, he could have pursued the full range of legal action open to him; but instead he was really left with no choice but to present an artificially shrunken and limited case to the Court – how can this be called “access to justice” ?
I consider allowing this situation to continue unchanged to be completely indefensible. It is obstruction of, not access to justice, that currently apply, certainly as they relate to actions against the police and the wider State. This is surely at odds with some of the fundamental principles of our common law – the right of redress for the citizen who has suffered oppressive, arbitrary or unconstitutional acts by government servants in the form of infringement of their personal freedom and security, their rights to property and freedom from search and trespass, all of which are rights which helped bring into existence modern liberal democracy and which are essential for its continuance and robust health.
The need to address this has become ever more urgent since the recent High Court case of Robert Jeffreys v the Commissioner of Police of the Metropolis (2017) made it resoundingly clear that on the ambiguous point as to whether QOCS protection applies to the whole of a claim which includes a personal injury element, or only to those costs which can be attributed to the personal injury claim, case law is coming down firmly in favour of the Defendant and is allowing the Claimant only a limited protection from QOCS. Mr Jeffreys brought claims for assault and battery, false imprisonment, misfeasance in public office and malicious prosecution – and was ordered to pay 70% of the Defendant’s costs when his claim failed, the Court determining that under the current framing of the rule, QOCS applied only and specifically to the costs of the assault claim. This is of grave concern as most police cases are hybrids involving, yes, on the one hand personal injury flowing from assault and battery, but also significant and complex claims for false imprisonment and malicious prosecution. As I have said above, this then leaves lawyers in an artificial position where they need to advise their clients to consider dropping – and many people then will, as in the example I gave above – all elements of their claim apart from the personal injury claim – potentially allowing Defendants to take away the liberty of individuals, and to subject them to significant psychological stress through false prosecution with impunity, because most people will not be able to take the financial risk of bringing claims in those areas of the law.
So what we are witnessing is a restriction of individual rights. Surely it was never the intention of those tasked with reforming – by which we must surely mean improving – our civil justice system, to give authorities such as a Police a type of ‘immunity’ from claims for false imprisonment, malicious prosecution and trespass ?
The Civil Justice Council did produce a report in March 2016 in which this very important issue was considered and I highlight the conclusions reached which were as follows:-
- There are strong, if not compelling, arguments of principle –based on access to justice and on the asymmetry of the relationship between the parties – weighing in favour of extending the scope of QOCS protection (or something very similar) to claims against the police.
- Principled arguments for not doing so do not appear to have been made out [There appears from the comments of the Working Group to have been a deliberate lack of engagement on this important issue by Police Forces and the lawyers who represent them – their silence speaking volumes I might say !]
Successive Governments have done a lot of tinkering with our civil law in recent years, a trend which looks set to continue; in regards to the issue I have set out above, I will continue to campaign for reform and fight for full access to justice for all victims of police misconduct.
In this respect, I recently met Sir Terence Etherton, the current Master of the Rolls and Head of Civil Litigation and specifically discussed this issue with him. Sir Terence accepted that he had not given this issue much consideration. In the circumstances, I subsequently wrote to Sir Terence and attach his reply here:
Sir Terence helpfully suggests that he will be taking the points raised in my letter up with the Government as part of the forthcoming review of Civil Justice in England and Wales. For the sake of access to justice, let us hope that any representations that he makes are both listened to and acted upon and that QOCS is extended.