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Access to Justice Denied

Listening to BBC Radio 4’s Today programme on 5 March, I was struck by how poorly thought out the Legal Aid Sentencing and Punishment of Offenders Bill (‘LASPO’) appears to be.

It will have devastating consequences for access to justice.

The Justice Secretary advocates reforms detailed in the Bill. This is currently being considered in the House of Lords and is likely to be made into an Act in April 2012, before implementation a year later.

If pushed through, the reforms will make it impossible for many claims against the police to be pursued. This is because the Bill removes the valuable ‘safety net’ of legal aid for previously eligible claimants in cases where allegations of deliberate or dishonest conduct do not apply.

To make matters worse, the current system of conditional fee (‘no win no fee’) agreements backed with after the event insurance (which protects against the risks of paying own disbursements and opponent’s fees in the event of failure) will be reformed to deny the claimant the right to claim a ‘success fee’ from their opponent if they win together with the cost of their insurance policy. These two things have allowed actions against the police solicitors like me to help my clients obtain justice and recover 100% of their damages after police wrongdoing.

Under the changes, these costs will come out of the claimant’s damages even if they are successful. As a result many cases will not be pursued as the financial benefit to the claimant if they win will be outweighed by the potential costs they will have to pay personally if they lose.

Ken Clarke insists that ‘We’re taking legal aid away from lawyers.’ By removing legal aid and reforming litigation funding from civil litigation which includes police compensation claims, police misconduct will go unpunished, lessons will not be learned, and access to justice will be denied. For Mr. Clarke, a barrister and QC, that is a shameful legacy.

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Metropolitan Police promises on ‘stop and search’ and s.60 miss the point.

At 12pm today (1 February 2012) Commander Tony Eastaugh of the Metropolitan Police participated in a live webchat about the Met’s use of ‘stop and search’ powers.

He stated that, while the police’s powers to stop and search people were not being taken away or reduced, the Met intend to now use them in a more focussed way. In particular they plan to target ‘violent people’, although he did not define such people or provide examples.

In addition, he said that the Met would be seeking to reduce the number of ‘section 60’ searches, which is a stop and search power given to the police in response to violence. This power is widely used by the police and has advantages to the officers who apply it when conducting a stop and search as, unlike with a standard stop and search, they are not required to give reasons. The authority to use s.60 comes from a superintendent or an inspector, which means that the officer conducting the search can simply defer to their superiors. Interestingly though, Commander Eastaugh said that he would expect officers using s.60 to explain their reasons ‘out of courtesy’.

While I applaud the Met’s efforts to target stop and search more appropriately, the police have a long way to go to convince people from black or minority communities in particular that they are not being targeted. It remains a sad fact that you are four times more likely to be stopped and searched in London if you are black or from a minority community. To resolve that issue the police are going to have to show tangible results on wider issues such as race relations rather than simply targeting their use of one power; stop and search. If they fail to do so, more claims for actions against the police will inevitably follow.

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Would you believe it? Custody CCTV footage and the police

Custody CCTV footage can often be helpful in an actions against the police claim.

Every police station in the country has a CCTV system in place recording everything that happens in the custody suite. Not only does the footage produced by the system provide vital evidence about a Claimant’s general demeanor immediately post-arrest, but it can also confirm or disprove the arresting officer’s initial arrest account. Often it contradicts the stated position of the police in correspondence, for example if they deny allegations of assault, leading to compensation being paid for the police’s wrongdoing.

Consequently, it is vitally important that custody CCTV footage is retained and made available to the Claimant and his actions against the police solicitor as soon as possible.

Many police forces operate a system whereby their CCTV footage is deliberately wiped after 90 days. In these days of digital technology, I often wonder why.

Also, increasingly I am coming across situations where CCTV footage is being wiped, despite my request within time that relevant CCTV footage be preserved. Excuses I have received recently include:

‘The Custody suite footage whilst requested by yourselves prior to the expiry of the 90 day  period was addressed to the incorrect staff…’;

‘Your letter was received but unfortunately not acted upon…’ and;

‘there is no CCTV footage available as data was not captured due to technical difficulties…’

I have no doubt that these excuses are tactical, as they prevent access to evidence which may assist the Claimant and harm the police’s defence.

We all have an interest in how public funds are spent. If CCTV evidence will assist in early settlement of a claim that is in everyone’s best interests, especially the police’s, who will save money and time. Equally, if it contradicts the Claimant’s version of events, that should be known by his solicitor as soon as possible, who may take a different view as to the prospects of success. In short: custody CCTV footage should be retained and produced in every actions against the police case. Failure to do so can only be viewed with suspicion.

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Why swearing at the police is not a crime

I recently read with interest the Telegraph’s report that a 19-year-old man’s s.5 Public Order Act conviction was overturned by Mr. Justice Bean recently on the grounds that his use of swear words could not have caused the necessary ‘harassment, alarm or distress’ required to convict.

In response, Peter Smyth (chairman of the Metropolitan Police Federation) complained that ‘if judges are going to say you can swear at police then everyone is going to start doing it’.

In my opinion, Mr. Smyth has missed the point completely. I am presently dealing with a similar actions against the police case for a client who was stopped and searched by the police while going to the bank. My client suffers from panic attacks, for which he has received therapy. When approached by them, the police officers used demeaning, offensive and rude language, searched him and made him agitated. He was arrested for a breach of s.5 Public Order Act and forced to sit on the floor of the police transit van while they drove him to the police station. During the journey and at the station he suffered a full-blown panic attack. My client was detained and searched again, and only released once a fixed penalty notice had been issued.

The police say he used abusive language which justified the arrest and subsequent charge under s.5. I dispute this. My client’s alleged use of swear words was in the course of his everyday language (e.g. he is alleged to have said ‘why the f— do you pick on me I just want to go to the f—ing bank.’). He was not squaring up to or challenging the officers, quite the opposite as he was using distraction techniques to try to avoid having a panic attack.

It is the context of the swear words which is important, and the way in which they are used, that may give rise to the ‘harassment, alarm or distress’ necessary to secure a s.5 Public Order Act conviction. S.5 was never intended to allow easy prosecutions for those who use swear words in every day conversation, rather it was intended to deal with those who cause fear and upset; the type of people we would all try to avoid. The sooner the police recognise the difference the better.

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Worrying trend in police procedure must stop

I was troubled to see the recent footage of Metropolitan police officers attacking a car in June 2008 to effect an arrest.

The footage (which can be viewed on the Guardian website) shows a mini being set upon by six police officers, one of whom smashed the windscreen with a ‘non-issue’ baseball bat, before arresting the driver. The police officers were told by the Independent Police Complaints Commission that they brought the police into disrepute and acted unreasonably. Amazingly, although they have been suspended, the officers in this case have not been dismissed from the force, despite their ‘overly aggressive approach’ according to the misconduct tribunal.

This seems to me to vindicate the police’s aggressive approach, and has worrying echoes with a case I am presently conducting for four clients.

My clients, two couples in their late 20’s of exemplary character, were driving home at about 9.15pm in April 2010 after visiting friends. They were forced to stop by a police car which swerved in front of them with its lights flashing and siren blaring. More police cars followed and blocked them from behind.

Armed police officers and dog handlers surrounded the car.  One smashed in the driver’s side window with the butt of his gun. Conflicting instructions were shouted at the terrified occupants. The driver was dragged from the car, forced to the glass-covered ground, and threatened with a taser. His girlfriend thought he was about to be shot. When she tried to leave the car a machine gun was pointed at her head. Her boyfriend, the driver, was handcuffed and led away out of sight.

The remaining passengers were separated. Although they were told that the police suspected firearms were in the car, it was not searched.

Instead, about 20 minutes later they were re-united and the senior officer explained that their vehicle had been incorrectly identified. They were then allowed to go home.

I was approached by the four friends to pursue an actions against the police claim following an internet search. Following a formal complaint which was upheld, the police denied liability saying they had reasonable grounds to act.

My clients were understandably terrified during and after the ordeal and have sustained psychiatric and physical injuries. I consider that they have good claims for false imprisonment, assault etc. and have issued proceedings. Their case continues.

It is important to my clients, and the wider community, that the police are held to account for their actions that night. Before the police’s attack on them, my clients had confidence in the police and their role in the community. This has been destroyed. The police need to review their procedures immediately to avoid this happening again.

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IPCC complaint appeals denied by the police’s sharp practice

I have many misgivings regarding the police complaint system but one criticism that I could level on near enough every complaint I have handled is the deliberate restriction of time to appeal against a police force decision.

Let me expand.

On the basis that a police force has carried out a full investigation, they will forward their final report to the Complainant.

The Complainant then has (a relatively short) 28 days from the date of the letter received from the police to lodge an appeal to the Independent Police Complaints Commission (‘IPCC’).

If the appeal is not lodged within that time period, the IPCC do not have to consider the appeal.

The IPCC say that they “may be able to extend this time period if you have very special circumstances and you can fully explain your reasons for asking for an extension”.

Note that the clock ticks from the date of the letter from the police.

One would assume that a letter would arrive within one or two days of the date of that letter.

With every police force I have dealt with however, it is invariably longer.

I am currently reviewing a case where the letter from Merseyside Police was dated 20th July and yet received at my office on 26th July.

This is, in my opinion, a deliberate tactic to reduce a Complainants “appeal time” and therefore reducing the chances of an appeal being lodged.

As appeals often affect the outcome of civil actions against the police, innocent victims of police misconduct are being denied their legal right to an investigation into their complaint, and may miss out on an apology and/or compensation where wrongdoing has been identified. This unfair practice must stop.

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Are the police using tasers correctly?

I read with interest about an 82 year man in West London who was tasered by the police.

A taser is the latest weapon in a police officer’s armoury. It is a stun-gun which when applied causes 50,000 volts of electricity to go through a victim’s body, side effects of which include temporary paralysis, nausea, amnesia, loss of bowel/bladder control, vomiting and in extreme cases, the heart can stop, occasionally resulting in death.

The police can use force (and therefore the taser) when affecting an arrest provided it is reasonable and proportionate.

It is in the public interest to establish whether the police have been given proper training and are applying their powers correctly. Can an 82 year old man be said to pose such a threat requiring the use of such excessive force?

I am currently pursuing a similar actions against the police claim for a 50 year old man. The police visited him late at night looking for his son. My client, a heavy set, bald, black man bears no resemblance to his 32 year old mixed race, curly haired son. The police, who had seen a picture and read a description of my client’s son, forced their way into my client’s home and indiscriminately tasered him in the back when he was retreating into his kitchen. At the time, he was entirely defenceless and posed no threat.

As well as the physical evidence in front of them, a simple ID check which they performed minutes later proved that my client was not the person they were looking for. Nevertheless, he was arrested for obstruction and assaulting a constable- this  is being cited to justify their over zealous behaviour. I am now working with my client to pursue his claim against the police.

I consider that both cases raise serious questions regarding the deployment of taser guns in arrest circumstances.

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