R-E-S-P-E-C-T

Photo of Iain Gould solicitor, explains his respect for people who bring actions against the police.
Iain Gould solicitor, explains his respect for people who bring actions against the police.

By Iain Gould, solicitor

I have a tremendous amount of respect for people who to take actions against the police.

Their fight for justice can be a hard, long, and stressful process. Why? Because they have to:

  1. know enough about the law and police procedure to determine if they have a valid complaint and/or potential claim
  2. be mentally strong enough to take action against the police
  3. be determined to find a suitably qualified solicitor they can trust, given the considerable financial risk of litigation.

People often get help with the first part. Duty solicitors at police stations, family and friends, research on the internet, can all help identify wrongs. But the rest is down to the individual.

How matters progress often depends on their past experiences. Many of my clients have never been in trouble with the police and often still trust them, despite what happened.

As a result, they (perhaps naively) think that the police complaint process is fair and impartial. This view is not unusual. Research commissioned by the Independent Police Complaints Commission (“IPCC”) found that:

“those that had the least amount of contact had much higher expectations of police behaviour and were therefore more willing to complain about a range of potential misconduct.”

Sadly, trust in the police complaints process is often misguided. Often, only when it fails do we find out if the person involved is truly determined to seek justice. One such person was my client, Mr R (name withheld at his request), from London. His story shows why I have such respect for people who brings actions against the police.

Racial Abuse Arrest

On 26th February 2014 my client, a professional, middle-aged white man got into an argument with a black woman after parking his car on the narrow street in front of his home. The woman verbally abused him for blocking the path of an oncoming car while he adjusted his road-side wing mirror to stop it from being damaged. He responded by telling her to park her own car behind his to let the traffic pass. Their exchange involved the use of coarse language and ended when the woman took photographs of his car and said that she was going to report Mr R to the police for racial abuse. She told Mr R that, even though she knew he had not racially abused her, she was confident the police would take her seriously, and not “some fat, angry, white guy”.

More than 3 weeks later, on 20th March 2014 at 9:30am, Mr R was shocked when 11 Metropolitan Police officers turned up at his home.

An officer told my client that he was under arrest for using “racially aggravated threatening words and behaviour” following the incident on 26th February.

Mr R vehemently denied that he had been racially abusive. The police refused to listen and told Mr R that they were taking him to his local police station. He was not allowed to shower but was allowed to dress under close supervision of an officer. During this process, one of the officers flippantly said to my client “Your taxi is waiting, the meter is running”.

Mr R was “booked in” before the Custody Sergeant. The circumstances of his arrest were recorded as “Officers investigating an allegation of road rage have cause to believe this male is involved.  Allegation of racially aggrieved (sic) Sect 4 POA.  Arrested to interview, prevent harm.”

The reason for arrest was recorded as “to allow the prompt and effective investigation of the offence or of the conduct of the detained person”. My client was searched and his personal possessions removed.

He requested pre-interview disclosure information. The Custody Sergeant refused, saying, “We don’t, not to people like you”.

Mr R asked for the Duty Solicitor. He was then photographed, his fingerprints and DNA sample taken, and locked in a police cell.

The Duty Solicitor and officer in charge saw Mr R at approximately 11am.  The Duty Solicitor told my client that he had also not been given any pre-interview disclosure information and that he had been advised that the alleged victim, the foul-mouthed woman, had not even been interviewed. Given that the police appeared not to have crucial evidence Mr R immediately asked how they could justify his arrest.  The officer in charge realised they were on shaky ground on this point and tried to dismiss it, saying that he was about to interview the alleged victim at 12pm.

After several hours of detention, an Inspector visited Mr R in his cell for his custody review.  He told Mr R that “I have authorised your further detention”.  My client immediately challenged the officer, saying that he had pre-judged the further detention without hearing from Mr R or his solicitor.

The Inspector agreed to investigate and authorised my client’s release. At 4pm Mr R was released on police bail and told to return to the Police Station on 9th April.

Police Complaint Farce

Readers will be in no doubt that Mr R is an intelligent man. He felt aggrieved that:

  • the police could not justify his arrest having failed to obtain the victim’s evidence first, even though the incident occurred over three weeks earlier.
  • they failed to invite him to attend for a voluntary interview, instead sending 11 officers to his home causing Mr R and his family great embarrassment, shock, and distress.
  • he had been mistreated during arrest and at the police station.
  • the police denied his reasonable request for information.
  • they pre-judged his further detention and delayed his release.

In his opinion, he had the legal grounds for a complaint. Mr R is also confident, determined, and articulate. Consequently, he had the first and second traits of people willing to take on the police.

My client lodged a formal complaint within a few days of his arrest which was handled by an Inspector in the same division as the arresting officers. Incensed by his treatment so far, Mr R’s priority was to ensure that he would not be re-arrested when he returned to the police station on 9th April.

The investigating Inspector agreed that Mr R could attend the Police Station on 9th April as a volunteer.  During interview, Mr R established that the so-called “victim” had just been interviewed earlier that day (9th April), despite being told previously that she was going to be interviewed on the same day he was arrested (20th March). The allegation of racial abuse was put to Mr R which he vehemently denied. The case was referred to the CPS for advice and Mr R was informed that his complaint could not be investigated while the police waited for the CPS’s input.

Eventually, on 21st May, Mr R was advised that no further action was to be taken against him.  Mr R understandably felt aggrieved by the actions of the Metropolitan Police and pursued his complaint.

To say he was given the run-around would be an understatement:

  1. His complaint was (wrongly) dealt with internally by the Metropolitan Police, rather than being referred to the IPCC. Mr R described this as “akin to getting Bernard Madoff to investigate customer complaints about his own investment scheme”.
  2. The Inspector who initially investigated the complaint failed to apologise, even though he confirmed that “You were circulated as a suspect on the 05/03/14 to facilitate a prompt and effective investigation and protect a vulnerable person.  On reflection, once the vulnerability passed the decision to arrest could have been reassessed and could possibly have been investigated utilising less intrusive methods”.
  3. Dissatisfied with the response, he appealed. The same Inspector dealt with the appeal. In January 2015 he said: “the investigation process could have been progressed without the requirement for arrest however the arrest itself was not unlawful”. Despite this, Mr R made some progress when the Inspector finally said “I wish to apologise for the distress this incident has caused you and accept our failings in how we progressed this investigation.  To be clear, this investigation did not require your detention in custody to secure your account, nor was it necessary to affect a prompt investigation”.
  4. Mr R was dissatisfied with the apology for “distress” only, and, among other things, with the Metropolitan Police’s failure to admit his unlawful arrest and false imprisonment, or to confirm that they had breached professional standards. He appealed to the IPCC.
  5. In March 2015, a year after the arrest, the IPCC confirmed Mr R’s view that his complaint was not suitable for Local Resolution and should never have been dealt with internally. It also confirmed that the Inspector’s response to the appeal was effectively a re-hash of the initial investigation, and that the matter should be sent back to the Metropolitan Police for a re-investigation.

Instructing an Actions Against the Police Solicitor

By this time, Mr R was despondent. He, like many, was initially reluctant to engage a solicitor. I suspect this was because he felt comfortable dealing with the complaint himself and wanted to avoid issues about legal fees, trust, and confidence in his legal representation.

He found me on Google and got in touch. At this point, the third trait (finding a suitable solicitor) kicked in and we vetted each other.

I was frank with Mr R. I offered no guarantees but, on the strength of his instructions and the documents he provided, I felt he had a viable compensation claim for wrongful arrest and false imprisonment.  I was confident enough to act under a Conditional Fee (“no win no fee”) Agreement, in which I only got paid if he won.

After the IPCC’s criticism the Metropolitan Police Inspector who originally investigated Mr R’s complaint completely changed his tune. He now confirmed in a third report that, in his opinion, “The arrest was unnecessary and therefore unlawful. Your complaint has been upheld”.

Despite this, Mr R remained unhappy with the complaint investigation. On my advice we focussed on his civil claim for compensation. I intimated a claim.

I explained to my client that the Inspector’s opinion was not binding on the police in the civil claim. Unsurprisingly, the Metropolitan Police’s legal department failed to either admit or deny liability suggesting that “the matter could have been investigated utilising less intrusive methods”.  (my emphasis) They put forward an offer of £2,500.

I advised Mr R that this offer was too low in my opinion. I suggested we put forward a counter-offer and, if the police did not accept it or make a reasonable offer, to issue court proceedings. This was not an easy decision for him to make.

It is a common misconception that “no win no fee” agreements also mean “no risk”. In fact, when the Claimant issues court proceedings they are at risk of paying the Defendant’s legal costs if they do not win or beat an offer. Litigation is not cheap and the police instruct expensive lawyers. It is not uncommon to see legal bills in actions against the police for over £50,000.

The decision to issue court proceedings required Mr R to trust my judgement. He knew that I have the necessary skills, expertise, and confidence which come from practising in this area of law for over 20 years. I was also invested in his success because I was risking my firm’s money and time by acting under a “no win no fee” agreement. But irrespective of the level of confidence and trust, there are no guarantees.

After weighing the options Mr R took my advice and authorised me to issue court proceedings.

In response, despite their previous offer and failure to increase before proceedings, the Metropolitan Police put forward a revised offer of £6500.

Better, but not enough.

Mr R authorised me to negotiate further. I eventually settled his claim for £7400, nearly three times more than the first offer, plus legal costs.

Here’s what Mr R said about my service:

“I was happy with every aspect of advice that you gave me, along with the guidance that you offered, I negotiate contracts for a living, and am quite legally aware. However, the threat of issuing proceedings against the Metropolitan Police caused me concern.  Your constant encouragement that everything was ok along with your experience and attention to detail impressed and bolstered my confidence, I was also happy with the result”.

Specialist Legal Help

People often complain direct to the police to get answers, accountability, and sometimes compensation. They do this without legal representation because they trust the police to investigate their complaint in a fair and just manner, without bias.

Instead, what they get is delay, avoidance, and a strong institutional bias against the person bringing the complaint and in favour of the officer(s) involved. They often only seek a solicitor’s help when they have lost all faith in the police complaint system.

In April 2016 there were 134,785 practising solicitors in England and Wales. Search Google for “actions against the police solicitors” and you’ll get 127,000 results. How hard can it be to find a good one to take on the police?

Answer: not so easy. This is because actions against the police solicitors work in a complicated, niche area of law. There are many lawyers out there who specialise in either criminal defence or civil litigation. There are few who cover both and also have the necessary background, skills, and attitude to risk to take on the State.

People have to spend time to find a solicitor they can work with, potentially for years. They have to look beyond the promises made on slick websites and make sure the solicitor is the right one for them.

Mr R knew enough about the law in actions against the police, had the courage to take them on, and the determination to find a specialist solicitor with whom he could work. He has my respect.

 

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Are Police Disciplinary Hearings “robust, independent, and transparent”?

Iain Gould, solicitor, asks if police disciplinary hearings are robust, independent, and transparent.
Iain Gould, solicitor, asks if police disciplinary hearings are robust, independent, and transparent.

By Iain Gould, solicitor

I recently blogged on the case of Alex Farragher whose complaint about police misconduct led to a public police disciplinary hearing.

As of 1 May 2015, in accordance with Section 9 of The Police (Conduct) (Amendment) Regulations 2015, police disciplinary hearings “shall be in public” (subject to the discretion of the person chairing or conducting the hearing to exclude any person from all or part of the hearing).  That change, along with others, was aimed to create a “more robust, independent and transparent” police disciplinary system.

Has it worked?

The Law in Public Hearings

What does “in public” mean? The OED definition is “openly, for all to see or know”.

The concept of open justice has long been recognised.

In Scott v Scott (1913) AC 417, Lord Shaw of Dunfermline said “that publicity in the administration of justice ….(is) one of the surest guarantees of our liberties” and cited passages from Bentham and Hallam in support of the general thesis that in Bentham’s phrase “Publicity is the very soul of justice”.

The principle is just as important now as it was then; in Hodgson v Imperial Tobacco Limited (1998) 1 WLR 1056, Lord Woolf MR relied upon the following passage from Sir Jack Jacob’s Hamlyn lecture, The Fabric of English Civil Justice (1987) where he said:

“The need for public justice, which has now been statutorily recognised, is that it removes the possibility of arbitrariness in the administration of justice, so that in effect the public would have the opportunity of ‘judging the judges’: by sitting in public, the judges are themselves accountable and on trial”.

An application of the principles in Scott v Scott is to be found in McPherson v McPherson (1936) AC 177, a decision of the Privy Council’s in a Canadian case. There the undefended divorce of a well-known politician was conducted not in a court room (though there were empty courts available) but in the Judges’ Library. There was direct public access to the courts, but not to the Judges’ Library. It could be approached from the same corridor which encircled the building and provided direct access to the courts, but only through a double swing door, one side of which was always fixed shut, and on which there was a brass plate with the word “Private” in black letters on it. Through this swing door was another corridor, on the opposite wall of which was a further door to the Judges’ Library. Both this internal door and the free swinging half of the double doors were in fact open during this hearing. The question for the Court was:

“… whether those swing foots with ‘Private’ marked upon one of them were not as effective a bar to the access to the library by an ordinary member of the public finding himself in the public corridor as would be a door actually locked”. (p198)

Their answer, while accepting that no actual exclusion of the public was intended, was that:

“… even although it emerges in the last analysis that their actual exclusion resulted only from that word ‘Private’ on the outer door, the learned judge on this occasion, albeit unconsciously, was ……, denying his court to the public in breach of their right to be present, a right thus expressed by Lord Halsbury in Scott v Scott: ‘every court of justice is open to every subject of the King’.” (subject to any strictly defined exceptions).

In Storer v British Gas plc (2000) 2 All ER 440, the Court of Appeal decided that this fundamental principle was no less important in employment proceedings than in other proceedings. In that case, Mr Storer brought a claim against his employers. At a hearing at the Industrial Tribunal Centre, his claim was dismissed. On appeal, Mr Storer argued that this decision should be quashed on the basis that the hearing had not been held in public.

The relevant facts were as follows:

At the Centre, “12 Industrial Tribunals were sitting on that day.  The lists of cases to be heard in each were on public display.  There was also a list of floating cases, i.e. cases which had not been allocated to a court, but would be heard as and when a court became available.  Mr Storer’s case was one of these.  As the morning wore on, it seemed clear that his case would not be reached unless it was heard in a room not normally used as a court-room.  One was available – namely the office of the Regional Chairman, as that position was unfilled at the time.  As a Judge was available, and as the room was available, the court authorities took the decision to have the hearing there.  They did not consult Mr Storer on this.  The parties (including Mr Storer’s wife) were escorted there by a guide.  No member of the public accompanied them.  It is accepted that Mr Storer’s application for leave to appeal to the Court of Appeal accurately summarises the geographical situation of the room that was used:

(a)    The hearing was held behind a locked door which separated the area to which the public had access from that part which the learned Judge described as the ‘secure area’ on the second floor of the Tribunal office. This ‘secure area’ [is] protected by the door locked with a bush-button coded lock [which] provides the only means of access to the large open plan office off which the Regional Chairman’s room is located.

(b)   This locked door is clearly marked with a large sign stating ‘Private’ in black letters on a white background.

(c)    All access stairs from the public areas on the ground and first floors to the second floor where [the] locked door is located are marked clearly with a large sign stating”

PRIVATE

NO ADMITTANCE

TO PUBLIC BEYOND

THIS POINT

The Court concluded that the hearing had not been held in public, even if, in fact, no member of the public was physically  prevented from attending. The obligation to sit in public was fundamental, and the tribunal had no jurisdiction to conduct itself in this way.

How Public are Police Disciplinary Hearings?

Both my client Mr E T, and myself, have first hand experience of the lengths to which the police will go to follow the letter of the law while ignoring the spirit of it in public police disciplinary hearings.

Following an incident that occurred on 14th February 2013, my client Mr E T lodged a complaint to the Metropolitan Police. The following description is based on his version of events.

Mr T was driving home from work when he was stopped by a police carrier van. Mr T got out of his car. He was told that he had been driving erratically and asked to hand over his car keys. He refused.

Suddenly, one of the officers grabbed hold of Mr T’s left arm and a struggle began. Many other police officers from the police van then stormed out and forcibly moved Mr T towards the pavement.

In doing so, Mr T fell to the ground where he banged his head.

Mr T, with five or more police officers on top of him, was then handcuffed and leg restraints were strapped on him.

Mr T was then told that he was under arrest for breaching s.5 of the Public Order Act. So as to further justify arrest, one police officer then said that he ‘could smell cannabis’ in Mr T’s car.

Mr T was then transported to a police station. En route, Mr T said to both police officers that he was going to sue them for what they had done. An officer said in response “We’ll just say that you assaulted a police officer”.

Mr T was then kept in custody until the next day and after he was interviewed for the alleged offences. Mr T was then bailed to return to the police station a few weeks later.

On his return, he was charged with assaulting a police officer and resisting arrest.

There was no further action against Mr T in respect of his driving (the reason for his stop), the cannabis allegation or breaching s.5 of the Public Order Act.

At the first opportunity, Mr T pleaded not guilty and his case was eventually listed for trial nearly a year later. At Trial, the CPS without notice or reason decided to discontinue.

Police Disciplinary Hearing Access

After investigating Mr T’s complaint the Professional Standards Bureau decided to bring gross misconduct proceedings against three of the officers.  The police misconduct hearing finally went ahead last week in the Empress State Building, South West London, nearly three years after the incident.

Mr T is intent on bringing a civil claim against the Metropolitan Police for unlawful arrest, assault and malicious prosecution. To find out how the officers performed, I sent my colleague to sit as watching brief.

My colleague met up with Mr T outside the Empress State Building and they went into reception together. Having been frisked by security, Mr T was ushered upstairs to the hearing room. My colleague was denied access as his name was “not on the list”. My colleague queried this given that the hearing was “in public”. He was told it didn’t matter, his name must be on “the list”.

My colleague asked to speak to the Investigating Officer and explained his role. Pursuant to Regulation 30 (3) of the Police (Conduct) Regulations 2012, Mr T was (irrespective of any argument that this hearing was allegedly being held in public!), entitled to attend the hearing accompanied by one other person as an observer and my colleague was that person. The Presenting Officer promptly authorised entry.

My colleague was then escorted to the hearing. Here’s what appeared on the hearing room door:

Public Police Disciplinary Notice.
Public Police Disciplinary Notice.

 

 

I must say that I found my colleague’s experience intriguing.

Metropolitan Police hold their misconduct hearings at Empress Buildings. According to their website, “any member of the public or press wishing to attend a misconduct hearing may apply to do so but due to limitations on space and capacity, attendance at the hearing will be administered and booked by application”.

Should you be interested, you must then complete and submit an application providing your full name, address and date of birth.

The lucky few successful attendees are then sent a confirmation email but admission to the hearing is conditional. They must produce their personal registration letter (confirmation email) that was issued by the hearings unit and supporting photographic identification (passport, and/or driver’s licence), along with proof of address (ie a recent utility bill).

Needless to say, my colleague reports that no members of the public attended any one of the five days of the hearing.

Police Disciplinary Hearings Restrictions

Having checked out the websites for most of the other police forces in England and Wales, the Metropolitan Police’s conditions are fairly standard. There are however a few quirks here and there.

West Yorkshire Police state that notice of a public hearing will be made not less than five days prior to the hearing but that applications to attend “must be submitted within 48 hours of the notice being published”. This could effectively be a three-day window.

Most stress that space is limited. Thames Valley Police are bold enough to announce that “available space will limit numbers of the public attending to six people including members of the public”.

Should you be fortunate to apply in time, be selected, and have the necessary proof of ID with you, there’s still no guarantee that you will actually sit in on the hearing. Some like Gwent Police openly admit that “The Public/media will be given access to a room at Gwent Police HQ” which will broadcast “a live feed of the hearing”.

Consequences of Police Policy

To increase public trust in our police force, the police should freely and unconditionally open their doors to members of the public at disciplinary hearings.  Otherwise they are in danger of appearing to be (literally) a closed shop and to encourage an assumption that police officers  judging  other police officers do not do so in a fair, unbiased and transparent way.

For example, Deputy Chief Constable of Essex Police Derek Benson claims that “Our intention will be to hold these hearings in public and make them as accessible as possible.”

But his force’s restrictive conditions (shown here) suggest to me that Essex Police (along with other forces) are paying only lip service to the concept of holding disciplinary hearings in public. In reality, they are putting many obstacles and discouragements in the way of the interested public.

This undermines the reputation of the police as being unbiased and effective in the investigation of crimes or misdemeanours committed by their own.

In the case of Storer v British Gas plc, the coded door lock was an actual physical barrier which prevented all access to the public. There was, the Court said “no chance of a member of the public dropping in to see how Industrial Tribunals (as they were then) were conducted, and the fact that none attempted to does nothing to show that this Tribunal was conducting the trial of the preliminary issue in public”.

What would the Court of Appeal make of the various barriers being put up by police forces around the country?

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Why the Police Disciplinary Tribunal Failed Alex Faragher

Photo of Iain Gould, solicitor, who discusses why a police disciplinary tribunal failed Alex Faragher.
Iain Gould, solicitor, discusses why a police disciplinary tribunal failed Alex Faragher.

By Iain Gould, solicitor

This afternoon, a public police disciplinary tribunal decided on the seriousness of misconduct by two Officers who had admitted breaching the standards of expected behaviour.

The hearing was in respect of a complaint lodged by my client, Alex Faragher. I have previously blogged on this case here, where I explained why police misconduct investigations must be reformed and later asked if the police are guilty of gross misconduct.

Sadly, my comments in the conclusion of the earlier post about a perception of bias have been borne out by today’s proceedings.

The disciplinary panel at today’s tribunal was made up of two senior police officers, Assistant Chief Constable Marcus Beale (Panel Chairman), Detective Superintendent Blackburn, and an independent lay individual, David Bowden.

Police Disciplinary Tribunal Finding

After consideration of the facts and on the basis of the Officers’ record, the disciplinary panel decided that their behaviour was misconduct only rather than gross misconduct.

I am dismayed by this verdict.

Is it right and proper that these two men, who admitted their disgraceful misconduct, continue to be employed as police officers for West Midlands Police?

After much publicity, certain changes have been introduced to the way that police officers are disciplined so as to create a “more robust, independent and transparent” police disciplinary system.

One of the changes introduced is holding misconduct hearings in public. As I have previously said, that’s a start.

Sadly for Ms Faragher and so many others, the system hasn’t changed materially in that the police continue to prosecute, defend, and sit in judgement on themselves.

Disciplinary Tribunal Punishment

Assistant Chief Constable Marcus Beale said the voicemail comments fell “substantially below what is expected of a West Midlands Police officer”.

However, he added: “The panel assess that the breach does not require the full range of sanctions, and that it amounts to misconduct.”

The punishment? Both Officers have been issued with written warnings.

My client, who attended both days of the police disciplinary tribunal, is extremely disappointed with not only the process, but also the findings, and result.

As a woman who was an alleged victim of domestic violence, all she wanted was to be treated with respect and professionalism. After being treated so badly by the two Officers she feels that the disciplinary tribunal has added insult to injury by letting the Officers off the hook.

She is also concerned that this sends a message about how West Midlands Police treat victims of crimes (in particular domestic violence against women) and that others might be put off reporting crime.

The panel at the police disciplinary tribunal had an opportunity to right a wrong and deal with these concerns. They failed.

Ms Faragher is now en route to ITV studios to be interviewed. The panel at the police disciplinary tribunal and two Officers may think that this matter is now settled. But for her, this story is not over.

UPDATE 29 October 2015: Click here to watch the tv news report.

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Are the Police Guilty of Gross Misconduct?

Photo of Iain Gould, solicitor, who discusses gross misconduct in police matters.
Iain Gould, solicitor, discusses gross misconduct in police matters.

By Iain Gould, solicitor

I have previously blogged about the misconduct proceedings brought against two West Midlands Police Officers due to commence today, 26 October.

To recap, my client Alex Faragher called West Midlands Police to lodge a complaint of domestic violence. The Officers assigned to her case, subsequently called her mobile to discuss the allegation. When the call went to answer phone, they inadvertently left an expletive ridden voice mail.

In the voice mail, you can hear these two men calling this victim of domestic violence a “f….. bitch” & a “f….. slag” before suggesting that they “go back,  f.…… draft the statement out ourselves and then just get the bitch to sign it”.

Ms Faragher lodged a complaint about the voice mail and the Officers’ subsequent behaviour at the Police station as regards the preparation of her statement of evidence.

Police Misconduct Hearing

I am pleased to report that at a public hearing today, and despite the best efforts of the force’s Professional Standards Department during the course of the investigation to dilute the misconduct so that it related to the indisputable voice mail only, the Officers admitted all allegations of misconduct, i.e. in relation to the voice mail and conduct at the Police Station.

Apparently recognising the seriousness of the situation, one of the officers, PC Guest, repeatedly apologized, according to today’s newspaper reports.

Gross Misconduct in Police Matters

The issue for the tribunal (made up of two senior police officers and an independent lay person) to now decide is whether the Officers’ conduct amounts to just misconduct or whether their behaviour is so serious as to qualify for gross misconduct. So, what’s the difference?

Misconduct is defined as “a breach of the Standards of Professional Behaviour”.

Gross Misconduct is defined as “a breach of the Standards of Professional Behaviour that is so serious as to justify dismissal”.

(see Para 29 Schedule 3 Police Reform Act 2002).

This is not very helpful.

But, when you recognize that this an employment matter at its heart, things become clearer.

Gross misconduct in that context is either deliberate wrongdoing or gross negligence by the employee (police officer) which is so serious that it fundamentally undermines the relationship of trust and confidence between the employee and employer (Chief Constable).

Today, barristers employed by both officers made representations to the panel that the admitted misconduct was simply that, misconduct. The problem for the Officers is that:

  • the eyes of the world (given that the hearing is in public) are upon them, and
  • in my opinion, the behaviour (as captured on voice mail) is so extreme that it has brought the force into disrepute.

A finding of gross misconduct and dismissal without further notice must be the only possible sanction.

We should know tomorrow.

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Why Police Misconduct Investigations Must Be Reformed

By Iain Gould, solicitor

At 11a.m. on Monday 26 October, two Police officers of West Midlands Police face a disciplinary hearing for gross police misconduct.

The hearing will take place in public. Police disciplinary hearings became public (subject to certain exceptions) on the 1 May 2015.  That change, along with others, was aimed to create a “more robust, independent and transparent” police disciplinary system.

But have the reforms into investigations of police misconduct worked? Read on to find out why I think not.

Police Misconduct Allegation

The two West Midlands Police officers due to be brought to account on Monday face an allegation lodged by my client, Alex Faragher in January 2014. (Alex gave me permission to use her details.)

Ms Faragher’s complaint centered on an incident that happened during an enquiry into an alleged domestic violence assault.

Two male officers attended upon her shortly after the incident but Alex was too upset and distressed to provide full details. The officers subsequently tried to contact Alex on her mobile phone but were unable to get through.  Accordingly, they left her a message but then failed to hang up properly.  Their subsequent conversation was then mistakenly recorded.

In the two-minute recording (an extract of which you can listen to here) one officer allegedly says to the other, “F…….  bitch, I specifically said, “you’re not going to give us the run around are you?” “No I want to press charges” she said. “F……. slag”.

A second officer then referred to writing their own version of her witness statement after her boyfriend had been arrested for assault.  He can allegedly be heard saying, “Either that or the only other thing we do is go back, f….ing draft the statement out ourselves and then just get the bitch to sign it”.

Later that evening, unaware of the voice recording on her phone, Ms Faragher went to Sutton Coldfield Police Station to give her statement to the same two officers.  Ms Faragher believes that her treatment at the Police Station was equally unprofessional because the officers did not take her dyslexia into account. They prepared a statement in her name and on her behalf and persuaded her to sign it without her first being permitted to read it and further because the officers then ignored her requests to amend particular parts of her statement.

It was only upon her return home later that evening that she both saw and heard the voicemail on her phone.  After hearing it, she felt “victimised and humiliated”. She said, “They turned up after 6:30pm and tried to call me and mistakenly didn’t hang up.  I picked up the conversation they then had in the police car that was recorded as a voicemail. I could not believe what I was hearing.” she said.

Photo of Iain Gould, solicitor, who discusses police misconduct investigation reform.
Iain Gould, solicitor, discusses police misconduct investigation reform.

Police Misconduct Complaint

In line with the policy set by the Independent Police Complaints Commission (“IPCC”), one would assume that the resulting investigation would take a relatively short period of time.  When Ms Faragher first complained she gave the police a copy of the recording along with a detailed account of what had happened.  She has since co-operated fully with the investigators.

Despite this, it took an investigator from the Force’s Professional Standards Department six months to finalise their investigation and produce their Complaint Investigation Report.

The Report was inadequate, even after all that time and my client’s help. Although both officers were interviewed under caution on the 3 April 2014, the Report failed to identify the officers’ response to the recording and answer a crucial question: do they accept that it’s them?

Both officers did however provide an account of subsequent events at the Police Station. Both maintained that they had acted properly at all times and any allegation of misconduct (in this respect) was denied.

After consideration, the investigating officer decided to not uphold this aspect of the complaint on the basis that there was no evidence available to corroborate either Ms Faragher’s account or the officers’ account.

But the Investigating Officer concluded that the officers had a case to answer in relation to the allegation that they had spoken about Ms Faragher in a discourteous and disparaging manner. This part of the complaint was upheld and will be addressed at the misconduct hearing.

Complaint to the IPCC

Whilst Ms Faragher was pleased that the officers were to be brought to account in relation to the taped conversation, this was only part of her complaint and the fact remained that the officers’ treatment of her at the station was unprofessional.

The decision of the investigator was, in my opinion, perverse, and designed to protect the officers from further scrutiny and a form of damage limitation.

On my advice, she appealed to the IPCC, the independent police watchdog.

On review by the IPCC in December 2014, it was found that whilst there was no evidence available to corroborate either the officers’ account or Ms Farragaher’s account of events at the police station, the taped recording added weight to my client’s complaint, particularly the comment that the officers would “go back, f….. draft the statement out ourselves and then just get the bitch to sign it”.

Accordingly, the IPCC case worker found that on balance, Ms Faragher’s complaint held “more credibility” and therefore upheld the appeal and decided that there was a case to answer for gross misconduct for both the recording and what happened at the police station.

The police disagreed.

In March 2015, West Midlands Police told the IPCC that they did not accept its recommendation that the officers face a Gross Misconduct hearing about events at the Police station.

In May, the IPCC stated that their original decision held and that West Midlands Police should include the additional complaints.

As a result, both will be addressed at Monday’s hearing.

Justice Delayed

On the face of it, West Midlands Police are harbouring two delinquent employees who should be dealt with as soon as possible.

But it has taken nearly two years from when Ms Faragher lodged her complaint to get them to appear before a Gross Misconduct hearing. All the time those officers have continued to work, although they are now reported to be on restricted duties in “non-public facing” roles.

Natural Justice demands that investigations into alleged police misconduct are full and fair, and that disciplinary proceedings are finalised in an expeditious manner.

Maintaining a system where police investigations are undertaken by officers in the same force leads to a perception of bias. And because there is no limit on the extent of investigation process or the time allowed, the most that the IPCC can demand is that the investigation process “should be proportionate to the nature of the complaint”.

The biggest stumbling block in assuring public trust and accountability in the police is the sense that internal discipline is not implemented effectively.

Cases like Alex Faragher’s show that, while reforms like public hearings may help, there is much more to do.

Contact me for help with you police misconduct matter using the online form below or via my firm’s website.

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Why the New Police Code of Ethics is a Waste of Paper

Picture of Iain Gould, Solicitor (lawyer) and specialist in actions against the police claims.
Iain Gould, Solicitor (lawyer)

By Iain Gould, Solicitor

I was interviewed for BBC Breakfast today about the new Police Code of Ethics.

The Code, which you can read on the College of Policing website, serves as a reminder to police officers to fulfil duties that seem basic and obvious.

Described by Chief Constable Alex Marshall as ‘a first for everyone who works in policing in England and Wales’, it applies to all those who work in policing, including volunteers and contractors.

The Police Code of Ethics applies the ‘Nolan’ Principles, which originate from the 1995 report prepared by the Committee on Standards in Public Life, and holds at its core the following principles:

  • Accountability
  • Fairness
  • Honesty
  • Integrity
  • Leadership
  • Objectivity
  • Openness
  • Respect
  • Selflessness

In addition, the Police Code of Ethics incorporates the existing Standards of Professional behaviour which covers the following:

  • Honesty and Integrity
  •  Authority, Respect and Courtesy
  • Equality and Diversity
  • Use of Force
  • Orders and Instructions
  • Duties and Responsibilities
  • Confidentiality
  • Fitness for Duty
  • Discreditable Conduct
  • Challenging and Reporting Improper Conduct

Despite referring to the Nolan Principles, I am struck by how little attention they are afforded. In the whole 32 page document only one page sets out the Principles and how they apply to policing in the UK.

As police officers are already obliged to respect and behave in accordance with Standards of Professional behaviour, which take up the vast majority of the new Code, this is merely a re-branding exercise.

What’s required is real reform.

Police Misconduct to Continue

Last year I wrote about why the existing system for dealing with police misconduct, which has been carried over into the new Police Code of Ethics, fails the public.

Then I found myself in the unusual position of agreeing with Sir Hugh Orde, Chairman of the Association of Chief Police Officers, when he said that it is ‘critical’ that there now be a fully independent police investigation system.

At the heart of any reform must be the introduction of a robust and objective disciplinary system.

The greatest encouragement to police corruption is a disciplinary system which makes no adequate effort to detect and punish corruption or misconduct.

The Independent Police Complaints Commission has proved useful but is woefully under-resourced and by reason of the Police Reform and Social Responsibility Act (2011), the majority of complaints against the police are dealt with in-house by the same Police Force.

As a result, investigations are often simply a whitewash.

Consider, for example, the experience of my client Pamela Boxford-White. She complained to Wiltshire Police following her (unlawful) arrest for Breach of the Peace using the internal police complaints procedure. Unsurprisingly, her complaint was rejected. She was told by a Chief Inspector in Wiltshire Police that the officers who arrested her had no case to answer and that no further action would be taken.

I had to issue civil court proceedings on her behalf to get the apology and compensation she deserved.

Only when government and the police make genuine and robust efforts to tackle corruption and misconduct in their ranks will it stop.

The introduction of a new Police Code of Ethics, while good for media coverage, changes nothing.

 

If you have suffered as a result of police misconduct and want help to sue the police, contact me using the online form below, on 0151 933 5525, or via my firm’s website.

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‘Can We Trust the Police?’- ITV ‘Tonight’ Programme

Picture of Iain Gould, Solicitor (lawyer) and specialist in actions against the police claims.
Iain Gould, Solicitor (lawyer)

By Iain Gould, Solicitor

Recently I was interviewed for an ITV ‘Tonight’ programme about trust in the police.

The programme, which deals with police misconduct, will be broadcast on ITV at 7.30p.m. tonight, Thursday 13 February 2014.

As a solicitor who specialises in police misconduct claims the producers sought my input on a number of issues relating to the question of public confidence in the police. They also interviewed one of my clients who had suffered as a result of police misconduct.

The reporters commissioned a survey of 2,000 people. 1 in 5 of those surveyed felt that the police were not on their side. Almost 2 in 5 considered that corruption was a problem within the police.

Police Misconduct Compensation Claims

My clients Peter Garrigan and Karim Allison would agree with the people surveyed who were concerned about perceived police corruption.

Both of them had to fight all the way to civil jury trials to clear their names after they were prosecuted in criminal courts using false evidence submitted by the police.

In my experience, the police fabricate evidence. But they would have the public believe that the police misconduct cases I deal with are rare, and that things are improving. Indeed, David Crompton, the Chief Constable of South Yorkshire Police, sought to assure the public that his force was now a ‘very different place in 2012’ compared to the Hillsborough era.

And yet I am contacted on a regular basis by people like Peter Garrigan and Karim Allison. Ordinary men and women who have suffered as a result of police misconduct.

Despite promises that things have changed since:

  • Hillsborough;
  • Stephen Lawrence;
  • Jean Charles de Menezes;
  • Andrew Mitchell‘s ‘plebgate’ affair; and
  • countless other scandals,

I am not convinced by the police’s platitudes.

In the past I have supported calls for a Royal Commission (see here). I repeat that call again. It is time that the police account for their actions. It is the only way to restore public confidence.

If you have suffered as a result of police misconduct contact me using the online form below, on 0151 933 5525, or via my firm’s website.

Update

The programme can be seen via the ITV player for a short time by clicking here.

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