Guardian- Comment is Free

Student sit-ins are not acts of trespass

The lack of case law on occupations leaves students vulnerable to draconian prosecution under the law of possession


Sophie Khan guardian.co.uk, Monday 6 December 2010 16.30 GMT Article history


Universities have been taken by surprise by the extent of the protests against tuition fees over the past few weeks, and the biggest surprise of all has been the growth of the student sit-in. Sit-ins such as the ones at University College London and the School of Oriental and African Studies are redefining the arguments around the rights of freedom of expression and assembly.


The debate is being fought out in the courts as possession claims (normally employed against trespassers) become the weapon of choice against the student occupations. Although Soas and Cambridge have possession orders, the universities have no immediate plans to evict the occupying students and have, in effect, recognised their right to protest. Paul Mason's report for Newsnight last week illustrated the peaceful nature of the occupation at the Brunei Suite at Soas, which is now in its second week, and his description of the "Zen-like calm" of the occupation goes some way to dispel the horror stories being told by the universities in court.

Student occupation, by its very nature, attracts the protection of the rights enshrined by Article 10 and 11 of the European convention on human rights, and these should be given the importance they deserve against with the university's claims for possession – which seem to be based on hypothetical scenarios rather than facts.


The lack of case law on this specific type of occupation is leaving the student occupiers exposed to the harsh law of possession. Without the will of the courts to distinguish the use of this power against them, students will have to fight their corner in court as well. The lines between the right of assembly and trespass are being blurred by these claims and we need to resist the classification of the "student occupation" as a trespass before their right to protest is curtailed.


As the number of student sit-ins rises, it is important that the courts establish definitive tests before they are applied against student occupiers. I acknowledge that seeking a balance between the rights of freedom of expression and assembly and those of property owners is not straightforward, and that a point in law would be made should the courts uphold the students' rights. But the argument that the courts must interject when there is inequality of arms must not be forgotten. Given the draconian nature of the possession claim, we need to allow all arguments to be made before judgments are reached.


The students are vowing to continue their protest with a fourth national protest on the eve of the Commons vote on tuition fees on Wednesday. Students' voices need to be heard both inside courts and outside them.



http://www.guardian.co.uk/commentisfree/libertycentral/2010/dec/06/student-protests-sit-ins-are-not-trespass

Solicitors Journal - Occupied Minds

Occupied minds
6 December 2010

Main Page Content:By Sophie Khan

Judges must not allow possession orders to trespass on the legality of student sit-ins, argues Sophie Khan

As the wave of student protests rips across the country, it seems the police are not the only ones raising their game against the students. On 24 November, the School of Oriental and African Studies (SOAS) made a claim for possession of property against ‘persons unknown’, including students of the SOAS. The order sought possession of the Brunei Suite, a facility room which had been occupied by the students since 22 November.

The students had organised a sit-in to protest against the coalition government’s proposals to cut university budgets and raise tuition fees, forming part of a larger, on-going protest by students across the country. The demonstration was peaceful and those involved were careful not to interfere with the proper functioning or activities of the university.

Although the students were exercising their article 10 and 11 rights during the sit-in, the claim for possession was granted to the university on 25 November by Henderson J who was presiding over the case. He relied heavily on the case of Appleby and Others v United Kingdom [2003] 37 EHRR 783 in support of his judgment for possession.


Striking a fair balance

In that case the applicants who lived in Washington, Tyne and Wear had been campaigning against a plan to build on the only public playing field near Washington town centre. The applicants in March and April 1998 tried to set up a small stall in The Galleries, a shopping mall that had become the effective town centre.

The private company that had recently bought up most of the shopping area from the government had refused them permission to collect signatures for their petition. They relied on the rights of article 10 and 11 of the ECHR on the bases that the shopping mall was a quasi-public space in which individuals could claim the right to exercise freedom of expression and assembly in a reasonable manner.

Although the majority judgment in that case recognised the importance of their rights, it stated that they were not unlimited and that the property rights of the owner of the shopping centre had to be taken into consideration. However, the dissenting opinion of Judge Maruste recognised the importance of wider considerations when striking a fair balance between the competing rights.

Maruste J said: “The old traditional rule that the private owner has an unfettered right to eject people from his land and premises without giving any justification and without any test of reasonableness being applied is no longer fully adapted to contemporary conditions and society.” If wider considerations were to be taken into account, then the contemporaneous student protests would add weight to a defence against a claim for possession against an occupied room which otherwise would not be viable.



Grass roots

The use of possession claims by the SOAS is unprecedented and at worst could be an abuse of process because of the draconian nature of the order, which does not allow for proportionality to feature in the argument against. And, although the SOAS was the first university to claim possession against occupying students, it will not be the last – at the time of writing Cambridge University had obtained an interim injunction against a student occupying the Old Schools building.

The lack of case law on this specific type of possession claim also creates problems for the occupying students. The sit-in could be classed as a quasi-trespass, as the students have the right to enter and remain but not to occupy. However, it is a peaceful protest carried out by students of the university, for the future of their university.

The uniqueness of the occupation therefore distinguishes it from other forms of trespass and could not be classed in the same league as the recent example in Mayor of London v Rebecca Hall [2010] EWHC 1613 Admin, the democracy village case, in which a group of protesters had set up camp in Parliament Square Gardens. In this judgment, Griffin J considered the following questions:


Can the claimant establish a right to possession?
Are the defendants in occupation of and trespassers on PSG?
Does the article 10 and/or article 11 right provide a defence and disentitle the claimant to possession?
Have the defendants breached the criminal law in the course of their occupation, and, if so, is this an exceptional case in which to grant an injunction in support of the criminal law and if so are injunctions a proportionate response to the aims of the mayor to regain control of the gardens for the benefit of others?
Should the court grant an injunction in the exercise of its discretion against any of the defendants?


Filling the gap

Many of these questions would not be applicable in sit-in cases, thereby creating a gap in the law where both the law of possession and the right of assembly do not reign.

The dissenting opinion of Maruste J in the case of Appleby could therefore be used as a starting point to fill that gap, but much work needs to be done on this area before definitive tests are established and applied against student occupiers.


Postscript:

Sophie Khan is a solicitor at Imran Khan & Partners and represented the SOAS sit-in students. Contact: sophiek@ikandp.co.uk

http://www.solicitorsjournal.com/story.asp?storycode=17388&encCode=2079109861BC8633923JTBS737226611

Solicitors Journal -Poor Quality

OPINION


Poor quality
29 November 2010




- Main Page Content:By Sophie Khan

The introduction of a quality assurance scheme in this delicate legal environment would be disastrous, warns Sophie Khan

On 15 November the Lord Chancellor, Ken Clarke, announced proposals to cut £350m from the legal aid budget “to ensure that legal aid is provided to the poorest and is preserved for the future”. The future coincidently was also the theme of the annual conference held by the Solicitors Association of Higher Court Advocates (SAHCA), ‘Advocacy 2020’ which was held

a few days before his announcement and was a platform for speakers and delegates alike to share their views on the highly controversial Quality Assurance Advocacy (QAA) scheme for criminal advocates, headed up by the Joint Advisory Group.

The scheme has sprung from the ideology that there is a ‘problem’ in the quality of criminal advocacy. I believe this ideology has come from the Bar and its futile attempt to maintain a closed-shop monopoly on advocacy for their self-preservation. This at a time when the prime minister has warned countries at the G20 of the impact of protectionism by currency manipulation; the Bar it seems has not seen the parallels in its own actions towards solicitor-advocates and the dangers of undermining fellow legal professionals.

The proposed legal aid cuts also bring with them the message that the legal market is in a delicate state and that any manipulation by legal players could damage the long-term provisions of legal services by legal professionals.

The advance of the alternative business structure will be a real and formidable challenger to the legal profession and the unwelcome restrictions that could be imposed by the introduction of the QAA scheme on criminal advocates from traditional firms and chambers may play into the hands of these businesses and place all advocates at a disadvantage as it is likely the costs of advocacy will be tightly controlled by these organisations.


Driving force

It is the question of ‘costs’ that is the driving force behind this non-evidential scheme; although barristers are still routinely instructed in final hearings and trials, they are rarely instructed from the beginning of the case, and solicitors, with or without higher rights, have now taken a lead role in advocacy up to that stage. The growing stream of solicitor-advocates who appear for clients at the trial and the higher courts are also seen to encroach on brief fees which in the past would have been shelled out to barristers in large doses.


The Bar will, however, never admit that their motivation for a quality assurance scheme is anything but their desire to maintain advocacy. But this cannot be true, especially as there has never been any quality assurance scheme in the past 300 years since the time of William Garrow who instigated the present adversarial system, appearing as advocate for disadvantaged defendants at the Old Bailey.


No evidence

The lack of evidence-based research also questions the need for a quality assurance scheme as apart from the outspoken remarks by two or three judges which have been reported in the press about solicitor-advocates. There has not been a widespread cry by judges as to the quality of the advocacy heard before them. This could be because the judiciary is not there to assess the quality of the advocacy, but to judge the case. The independent and unique role played by the judiciary should not be tarnished by imposing conditions on judges to ‘traffic light’ advocates’ performances as this could have serious consequences to the integrity of the judge and may lead to accusations of bias and discrimination against them causing irreparable damage to the image of our justice system.

Judicial intervention is therefore not the way, but that does not mean that there should not be a scheme to maintain the quality of advocacy in our courts. All legal professionals already have a duty to ensure that they have the requisite skills and experience when advising and representing clients and any quality assurance scheme should take that on board.


Hampering needs

The current CPD system allows associations such as the SAHCA to provide courses which are voluntary, accredited by the Solicitors Regulation Authority and attract high-calibre individuals, to include figures from the judiciary to provide training to an ever-growing membership of solicitor-advocates.

It should therefore be down to organisations such as SAHCA, which have a track record of providing high-quality training, to run any quality assurance scheme that comes into existence rather than a new, foreign body which may not be able to meet the needs of the advocates and may even hamper them while it struggles to establishes itself in this volatile legal environment.

So the jury is out for the future of advocacy, at least until next year.

Postscript: Sophie Khan is a solicitor at Imran Khan & Partners and a member of the Solicitors Association of Higher Court Advocates

http://www.solicitorsjournal.com/story.asp?storycode=17347&encCode=249364854BC3033923JTBS737226611

Solicitors Journal - Thin Blue Line

Thin blue line
19 October 2010


By Sophie Khan

The commissioner's outdated attitudes to police accountability are part of the problem, not the solution, argues Sophie Khan

It was a surprise to read that Sir Paul Stephenson had written to the home secretary with his concerns over legal costs. He has failed to take on board the arguments that have been made time and time again by civil action against the police practitioners and civil liberties groups which link accountability to costs. Instead he has proposed in his confidential letter to Theresa May that he wishes to “make it harder for people to sue the police for damages in civil actions”.

This is a clear signal by the commissioner that he attaches no significance in redressing civil wrongs committed by police officers and that ‘accountability’ is a word that does not apply to the police. This outdated approach in dealing with an ongoing problem is one of the reasons why the police have lost the respect of their communities and are likened to a ‘gang in uniform’ rather than officers of the law.


The only solution

The proposals the commissioner should have put forward would be to recognise that accountability is the only solution to his desire to reduce costs and propose steps to bring about the level of accountability that will address the numerous allegations of police misconduct. At present it is only through civil actions that there is real accountability against these abuses and is the only platform where the evidence can be comprehensively tested and the wrong redressed.

In the absence of civil actions there would be no delivery of justice to those who have genuinely been wronged and as a society we would be allowing a two-tier system to operate for the police, which would be unfair and has no place in due process and the rule of law that we as British citizens value and cherish.


The commissioner could of course argue that public bodies such as the IPCC and the CPS are there to ensure such breaches, civil wrongs and criminal acts are addressed. However, it has only been a recent development by the CPS to prosecute more police officers and the looming cuts on the CPS which have already seen a freeze on recruitment could lead to a lack of resources rather than the will to prosecute more cases in the future.

One of the difficulties I have experienced with the IPCC is its reluctance to take a more direct approach against the police officers working in the Directorate Professional Standards and Professional Standards Board and face them head-on on complaints that have not been dealt with sufficiently and ones that should have been upheld.


No acknowledgement

This has been an ongoing issue for several years and to date has not been addressed and is unlikely to be addressed in the near future. The existing framework of accountability in my opinion is not working and is the cause of many of the civil actions that are subsequently brought by those same complainants as they are dissatisfied with the complaints procedure and feel that their grievances have not been acknowledged by the police.

The commissioner needs to take on board that police officers, like everyone else, have to be held accountable when procedure is not followed or when there is evidence that a civil wrong or criminal act has been committed. His attempt to circumvent the rule of law for his officers through the back door is not welcomed and will be strongly opposed. It also raises serious questions over his commitment and motivation to the new era of policing and whether the lessons of the last 30 years of police misconduct have had any impact on the police.


Postscript:

Sophie Khan is a solicitor specialising in actions against the police at Imran Khan & Partners. Contact: sophiek@ikandp.co.uk

http://www.solicitorsjournal.com/story.asp?storycode=17120&encCode=902488516BC2173923JTBS737226611

Solicitors Journal - Fighting the force

Fighting the force 27 September 2010

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By Sophie Khan

It has been a bumper month for successful challenges against the police. What would Lord Bingham make of it all, wonders Sophie Khan

This year has seen a sea change in the way prosecutors have approached allegations of assault against the police. There has been a clear recognition on the part of the Crown Prosecution Service (CPS) that the public will no longer accept that officers can be treated as if they are above the rule of law.

This month alone has seen the successful convictions of sergeant Mark Andrews, sentenced to six months for actual bodily harm, along with special police constable Peter Lightfoot, sentenced to two years for assault and one year for lying in court on 1 September. Last week, territorial support group officers PC Nigel Cowley, Roderick James-Bowen, Mark Jones and DC John Donohue appeared at the City of Westminster Magistrates’ Court to face charges of causing actual bodily harm contrary to the Offences Against the Person Act 1861 on Babar Ahmed during his arrest in December 2003.

Meanwhile, September has also brought the death of one of the greatest judges of our time, Lord Bingham of Cornhill. Tributes to his exclaimed judgments on civil liberties and his deep commitment to due process and the rule of law is a fitting example of how fundamentally important it is for there to be accountability of those who are trusted to uphold the law.

His recent publication The Rule of Law was inspired by his fear that Britain was losing a basic respect for the idea of liberty and the excessive use of powers by state officials, including the police, on the public at large were eroding the foundations of our democratic society. His recent speech at the Convention on Modern Liberty in 2009 again delivered a clear message that state officers “should prompt a principled determination to ensure that the permissible exercise of such powers is strictly defined, regulated and monitored” – an idea that should be taken on board by public bodies.

Look twice

The CPS has in the past been accused of double standards when it came to prosecuting police officers for allegations of assaults resulting from arrests and detention of individuals. But the recent change in approach has demonstrated that they are prepared to deal with allegations of criminal offences against the police.

The emphasis in their charging decisions against the police shows a determination to abide by their Code of Crown Prosecutors: “It is important for the maintenance of public and police confidence that a different standard is not allowed to develop in cases involving persons serving with the police.”

While there will still be many cases where there are no prosecutions following allegations of assaults against police officers, redress for serious assaults do fall within the code. Other public bodies such as the Independent Police Complaints Commission (IPCC) have adopted a similar approach when faced with evidence of criminal acts by the police.

In a recent IPCC report I received following my client’s appeal against the Directorate of Professional Standards investigation into my client’s complaints of unlawful arrest, detention and excessive use of force, there was an acknowledgment by the IPCC that “it was possible that a criminal act had been committed” against my client. However, they did not refer the matter to the CPS as they could not decide whether the injuries my client sustained were common assault, with a statutory time bar of six months from the date of the incident, or actual bodily harm. I believe the evidence would satisfy a referral to the CPS for actual bodily harm and I am now pursing this on behalf of my client, especially in light of the Barber Ahmed case in which four out of the five Territorial Support Group officers had their criminal case file looked at again following a successful civil action against the police for damages in March last year.

So the concept that there must be due process in maintaining the rule of law is holding firm against police officers and hopefully this new trend by the CPS to prosecute when there is sufficient evidence will continue. But these changes will not come over night and the recent Freedom of Information request by the BBC indicates a majority of complaints were still being made in respect of allegations of assaults.

The Association of Police Authorities will be proposing that the independence of the complaints process is strengthened so that it is more transparent and accountable. The budget cuts in policing, which may see the loss of 40,000 frontline jobs, could also result in the proposed process being fast tracked and push accountability to the top of the police’s agenda, especially if the police authorities are conscious of the costs of claims made against the police and prosecutions for criminal offences.

We will need to wait until next month to discover whether the police will be subject to the cuts before we can discuss whether a new style of accountability will emerge.

Postscript:

Sophie Khan is a solicitor specialising in actions against the police at Imran Khan and Partners. Contact: sophiek@ikandp.co.uk

http://www.solicitorsjournal.com/story.asp?sectioncode=3&storycode=16980&c=3

Solicitors Journal

Update: police 6 September 2010

By Sophie Khan

The decision to suspend stop-and-search powers is just the tip of the iceberg in a year full of significant developments in police law, writes Sophie Khan

On 8 July 2010, the home secretary announced that she would change the test for authorisation for the use of section 44 powers from requiring a search to be ‘expedient’ for the prevention of terrorism, to the stricter test of it being ‘necessary’ for that purpose. This should now draw a line under the excessive and disproportionate use of the powers and bring about a more balanced approach to policing on our streets.

DNA retention – leapfrog appeal

Another recent area of development is the retention of DNA. R (GC) v Commissioner of Police of the Metropolis (defendant) & Secretary of State for the Home Department (interested party) and R (C) v Commissioner of Police of the Metropolis (defendant) & Secretary of State for the Home Department (interested party) QBD [Admin] 16 July 2010 were applications for judicial review of the policy to retain biometric samples for an indefinite period, save in exceptional circumstances.

It was held that the Administrative Court was bound to follow the decision of the House of Lords in R (S) v Chief Constable of South Yorkshire [2004] UKHL 39 that the retention did not infringe an individual’s right under the ECHR article 8 rather than the decision of the ECtHR in S v United Kingdom [2009] 48 EHRR 50 that the blanket and indiscriminate nature of the powers of retention of the fingerprint and DNA material of any person suspected but not convicted of a criminal offence was contrary to article 8. The court, however, did grant leave for a leapfrog appeal to the Supreme Court to determine the issue of precedent.

Right to resist

In the cases of Cumberbatch v Crown Prosecution Service and Ali v Department of Public Prosecutions [2009] EWHC 3353 (Admin) it was held that where the arrest of an individual by a police officer was unlawful, other police officers who come to the assistance of their fellow colleagues were not acting in the execution of their duty, so that an individual who used reasonable force to resist those police officers was not guilty of an offence contrary to the Police Act 1996 section 89(2).

This case reinstates the common law set down by Christie v Leachinsky [1947] AC 573, that any person has the right to use reasonable force to resist an unlawful arrest, or to assist another to resist an unlawful arrest. The judgment of Lord Simonds at page 591 is a useful reminder of the fundamental right to liberty and freedom: “I would say that it is the right of every citizen to be free from arrest unless there is in some other citizen, whether a constable or not, the right to arrest him. And I would say next that it is the corollary of that right of every citizen to be thus free from arrest that he should be entitled to resist arrest unless that arrest is lawful.”

False imprisonment

It was held that the circumstances of AN v Secretary of State for the Home Department and Secretary of State for the Home Department v (1) AE (2) AF [2010] EWCA Civ 869 were not conceptually different from, or materially less serious than, that of a case involving deprivation of liberty, and the same principles applied as in R v Governor of Brockhill Ex p Evans (No 2) [2001] 2 AC 19 HL.

The appellant (AN) appealed against a decision revoking prospectively the control order in force against him, and the appellant secretary of state appealed against a decision ordering that the control orders in force against the two controlees in that case were to be quashed. The court was required to consider whether the non-derogatory control orders in place were to be quashed with effect from the date on which they were made or whether they should be revoked. It was held that the making of a non-derogating control order was an administrative act of the secretary and if an order was legally flawed it attracted the usual consequence of a legally flawed administrative act, which was quashing. It then follows that if false imprisonment is established the secretary of state cannot escape liability in damages because of the strict liability of the tort and compensation will be payable to the former controlees.

The Court of Appeal in the case of R (MK) v Secretary of State for the Home Department [2010] EWCA Civ 980 has recently applied the approach in R v Governor and it was held that there was an unlawful detention for more than three weeks. It also held that damages should be assessed applying a global approach, having regard to the particular facts of the case, and should not be assessed mechanistically. An increased award of damages from £8,500 to a total of £17,500 which included £5,000 for aggravated damages was made.

Closed material procedure

In Bisher Al Rawi & 5 others (Appellants) [2010] EWCA Civ 48, the issue was whether it was open to the court to order a closed material procedure of a civil claim for damages in tort. Lord Neuberger MR held that it was not open to a court to order a closed material procedure and the principle that a litigant should be able to see and hear all the evidence determining his case was so fundamental that, in the absence of parliamentary authority, no judge should override it in relation to an ordinary civil claim. Although the court had inherent jurisdiction to develop common law, the course proposed by the respondents would involve not merely altering the rules of evidence as they applied to any proceedings, under the Civil Procedure Act 1997 schedule 1, but altering the fundamental principles of law; Scott v Scott [1913] AC 417 HL and R v Davis (Iain) [2008] UKHL 36 followed.

Although the extent of any disclosure by the court was a matter of discretion, the overriding objective required the court to deal with cases fairly and to ensure as far as possible that the parties were on equal footing.

This case clarifies the use of secret and sensitive evidence by public bodies and is a precedent that can be relied upon in police actions in respect to evidence contained in ‘police intelligence’ reports.

Malicious prosecution

Moulton v Chief Constable of the West Midlands [2010] EWCA Civ 524 is a recent case that follows on from the trend seen in the cases of Ministry of Justice v Scott [2009] EWCA Civ 1215 and AH v AB [2009] EWCA Civ 1092 in relation to complainants providing a false account to the police.

In this case the appellant (M) appealed against the dismissal of his claim for damages against the chief constable for malicious prosecution. The Court of Appeal held that the judge at first instance had been right to hold there had been reasonable and proper cause to commence the prosecution, which required a finding as to the subjective state of mind of the officer responsible and an objective consideration of the adequacy of the evidence, Hicks v Faulkner [1881-82] LR 8 QBD 167 QBD considered.

Although the police might have been wrong, they appeared honestly to have believed that the allegations were true and it therefore could not be said that the police were continuing the prosecution for an improper motive. It was unfortunate that the CPS did not make its decision more quickly; however, it could not be said that the police continued with the prosecution no longer having reasonable and proper cause. The case reinstates the difference between a malicious prosecution and one which is badly directly or incompetently conducted.

Information privacy

The case of C v (1) Chief Constable of Greater Manchester (2) Secretary of State for the Home Department [2010] EWHC 1601 has followed the Supreme Court decision of R (L) v Commissioner of the Metropolis [2009] UKSC 3.

C applied for judicial review of a decision of the chief constable to disclose information about him to a prospective employer in an enhanced criminal record certificate which contained details of an allegation made by his stepdaughter that C had sexually abused her between the ages of five and 15. C had sought a job as a welding lecturer at a further education college teaching children over the age of 16.

Langstaff J held that there was no presumption against disclosure, but nor was there a presumption in favour of disclosure. The question of proportionality necessitated close attention to detail by the decision maker and care had to be taken in weighing the risks of non-disclosure against those of disclosure. There had been no detailed consideration of the extent to which C would come into contact with children and there had been no detailed consideration of proportionality. The chief constable had taken into account the guidance in R (X) v Chief Constable of West Midlands [2004] EWCA Civ 1068 which was flawed and the decision to disclose could not stand. A decision that would inevitably have the consequence of C being unable to obtain work in his chosen profession was not proportionate to the risk from non-disclosure, which, though existing, was low. The case helpfully establishes that the correct approach is R (L) and clarifies the importance of proportionality.

In Chief Constable of Humberside and others (Appellants) v Information Commissioner (Respondent) & Secretary of State for the Home Department (Intervener) [2009] EWCA Civ 1079, the appellant chief constables appealed against decisions of the Information Tribunal that certain old convictions should be deleted from the Police National Computer. The police took the view that no convictions should be deleted except in exceptional circumstances, which should be narrowly construed as limited to such matters as convictions being established as wrongly obtained.

It was held that the tribunal had been wrong to find that the correct approach was that the police processed data for their ‘core’ purposes. Even if the narrower approach to purposes was correct, the tribunal was wrong to hold that retention of the information was a breach of the third and fifth principles of Data Protection Act 1998 schedule 1.

It was also held that the change in policy of ‘weeding’ in force at the time one of the individuals (S) was ensured that the reprimand would be removed from the Police National Computer after her 18th birthday had not become unfair. In the dissenting judgment of Carnwarth LJ on this point it was held that the court should evaluate the issue by reference only to the circumstances of the particular case.

The decision in these cases raises the issue of whether the police policy in the retention of minor convictions is proportionate in light of the case of C and whether the rights of the individual are being infringed.

Postscript:

Sophie Khan is a solicitor specialising in actions against the police at Imran Khan & Partners. Contact: sophiek@ikandp.co.uk

http://www.solicitorsjournal.com/story.asp?storycode=16870&encCode=715179954BC0610033JTBS737226611

Solicitors Journal Cover Story -Power Trip

Power trip
26 July 2010


By Sophie Khan

Deaths under police restraint must not be treated as lesser crimes, argues Sophie Khan

“I can’t breathe, you’re killing me,” were the last words of Frank Ogboru, a Nigerian businessman who died on 26 September 2006 following a restraint by four Metropolitan Police officers on a roadside in Woolwich, South London. The jury on 28 April 2010 returned a narrative verdict after a three-week inquest before Selena Lynch, deputy coroner for London (Inner South), who concluded: “All officers directly involved with the control and restraint of Mr Ogboru were trained to recognise the risks factors of positional asphyxia. The officers did not act in accordance with the Standard Operating Procedure in getting Mr Ogboru into a safe position as soon as possible after control was achieved. Had the risk factors been correctly identified and acted upon it is likely that Mr Ogboru would have survived.”

Although these chilling words did not bring comfort to the family of Mr Ogboru, they have set a precedent in police restraint deaths and have finally corrected the balance that was desperately needed between the two concepts of ‘control’ and ‘risk’ when police officers conduct a restraint.

These issues have been a hot topic of debate for several years. However, they have failed to address the points that would have prevented the death of my client’s husband and it is now time to look at the lessons that have been identified in the Ogboru inquest and develop them further, so that there is a real and visible change in the culture of police restraints and an acknowledgment that risk implications are taken into equal considerations during every occasion.


Training gap

The Ogboru inquest centred around the medical implications of positional asphyxia, the risks of which have been well known in the police service since 1995, and as a result have been incorporated into the national training. The report, ‘Considerations for Safer Restraints’, published by the Metropolitan Police Service on 23 March 2005 defines positional asphyxia “as occurring when ‘the position of the body interferes with breathing, resulting in asphyxia’. It is likely to occur when a person is in a position that interferes with inhalation and/or exhalation and cannot escape that position. Positional asphyxia can occur extremely rapidly.”

There are further examples of guidance available to the Met Police officers on the risk factors, and signs and symptoms of positional asphyxia in the officer safety manual which forms the basis of active training that is provided to all officers annually. The central tenant of the training is that officers are taught to monitor the person’s condition following a take-down and that the person must be repositioned from the prone, face-down position at the earliest opportunity; any delay to this process will need to be justified. It was this lack of justification that led the jury to question the actions of the four officers and highlighted that there is still a gap in the training that is being provided by the police.

Similar thoughts were also expressed by experts at the inquest and during the independent investigation into Mr Ogboru’s death by the IPCC, which led to local recommendations being made to improve the present training. First, the training on positional asphyxia needs to be embedded deep in the mind of the officers so that they are alive to the risks when they are distracted in obtaining control. And, second, that when a number of officers are involved in the restraint, a safety officer should be appointed to monitor visible signs of life and that officers should work as a team rather than trying to achieve their own area of compliance.

Unfortunately, Mr Ogboru’s death is not an isolated case and there have been two other recent police-related restraint inquests which have demonstrated that there is a pattern in the lack of recognition towards the risks of medical implications during a restraint. The jury in the inquest of Paul Coker who died at Plumstead police station on 6 August 2005 also returned a critical narrative verdict and found that Coker was suffering from a variant of excited delirium (otherwise known as acute behavioural disorder) and that the officers failed to recognise the symptoms at the scene of arrest. The inquest also heard evidence on the varying ways in which the police officers interpreted the training they received on excited delirium and the treatment of people suspected of suffering from the condition as a medical emergency.

Similar to positional asphyxia, the risks of excited delirium have been well documented in police training and safety guidance for years and the ‘Considerations for Safer Restraints’ again provides a definition which is clear and simple to understand: “Excited delirium is when a person exhibits violent behaviour in a bizarre and manic way rather than simply being violent.” A person in that state is of particular concern as they can go into cardiac arrest suddenly, during or shortly after a violent struggle.


The circumstances surrounding the death of Ricky Penfold is another example of how police officers failed to take on board the ‘risks’ of the restraint and following his restraint on 20 October 2008 he subsequently died at Whipps Cross Hospital on 23 October 2008. The jury give a narrative verdict which found that the position in which Penfold was restrained by the police could have contributed to his death and that the police failed to identify that Penfold was suffering from excited delirium.

The combination of the above police restraint deaths along with other deaths in custody has led to the creation of an Independent Advisory Panel on Deaths in Custody which provides independent advice and expertise to the Ministerial Board on Deaths in Custody since 1 April 2009. It also provides guidance on policy and best practice across sectors and makes recommendations to ministers and heads of key agencies. Although the work of the panel is welcomed in the area of police restraint deaths, there needs to be a realisation on the panel that the onus to deliver change is on the police service itself and that without the police’s efforts there can be no recognisable difference in policy.


Reducing the risk

The coroner in the Ogboru inquest also made a rule 43 report. Pursuant to rule 43 of the Coroners Rules 1984 (as amended), a rule 43 report is made when the evidence provided at an inquest gives rise to concern that circumstances creating a risk of other deaths will re-occur or continue to exist, and that action could be taken to reduce or eliminate that risk. The report is then sent to the commissioner of the Metropolitan Police or the chief constable, the lord chancellor and copies to the family’s legal representative and other interested parties. The coroner’s concerns in our inquest centred around the varying degrees of experience and training of the four officers and the fact that all of them had positional asphyxia at the back of their minds rather than the forefront when restraining Ogboru. The coroner also made suggestions for different training or training that is delivered in a different way to be considered and, although we have yet to receive a detailed response from the commissioner within the specified 56 days from the report, I am confident that the commissioner will address the specific concerns raised by the jury and that a viable working direction will be made.

Notwithstanding that, there is a well-known issue among inquest practitioners that there are real restrictions to the follow-up procedure once a rule 43 report is made, as there is no compulsion on the police to provide a response. However, this could be an area where a collaboration with the Independent Advisory Panel on Deaths in Custody could lead to a collective step being taken to raise the profile of police forces that fail to respond to the rule 43 reports and to then pressurise them into implementing the lessons that have been identified in the inquests.


Bringing prosecutions

It is not just learning lessons that need to be considered following the conclusion of the inquest proceedings. In some cases the evidence presented to the court prompts questions regarding whether there is now enough evidence to bring criminal charges – especially if new evidence is presented to the prosecuting authorities. However, there is a history of unwillingness to bring prosecutions against police officers following restraint-related deaths and police conduct resulting in death – highlighted by the DPP’s decision not be bring any criminal charges against the police officer who struck Ian Tomlinson at last year’s G20 demonstrations.

Recently, there has been a change in the approach taken by public bodies involved in some inquests, especially when there is overwhelming evidence presented to the court which demonstrates that an unlawful act has been committed and, as in the Ogboru case, the prosecuting authorities may revisit their decision to bring charges. The prosecuting authorities need to weigh the evidence against the prospect of bringing a successful conviction at court, but they also need to recognise that the public want to see that justice is being done.

Whether criminal charges are to be brought against the four officers who restrained Ogboru is yet to be seen, but the prosecuting authorities need to carefully consider the ramifications that such charges and successful convictions will have on the police culture towards restraints and send a clear message to Mr Ogboru’s family and to the public that public officers will not be treated as if they are above the law.


Postscript:

Sophie Khan is a solicitor specialising in actions against the police at Imran Khan & Partners. Contact: sophiek@ikandp.co.uk

http://www.solicitorsjournal.com/story.asp?storycode=16699&encCode=979201954BC9278923JTBS737226611

Solicitors' Journal - A question of independence

A question of independence

25 May 2010

By Sophie Khan

Independent inquiries following complaints against the police are still a rarity and the IPCC must recognise its responsibility to undertake more investigations, says Sophie Khan

Article 3 investigative duty remains a grey area and much still needs to be done to clarify when the state has an obligation to conduct an independent investigation. On 12 March 2009, the Council of Europe Commissioner for Human Rights, Thomas Hammarberg, set out his view that police complaints involving arguable breaches of article 3 should be investigated independently of the police. However, at the moment the police are still investigating the police and the obligation to hold an independent investigation is based on a series of tests: is there an arguable breach of article 3? Is there a serious injury? Are there any other means to elicit the relevant facts? Would the outcome of the investigation be proportionate to costs? And finally, is it in the public interest?

It seems that only when all the boxes are ticked can an independent investigation be considered, and, from the Home Affairs Select Committee report published on 7 April 2010, it is clear that it is on very few occasions that such investigations will take place. In the period of 2008-09, out of 31,259 complaints, only 88 were independently investigated by the IPCC, representing less than one per cent of all complaints that were held to be arguable breaches of article 3.

Arguable breach

If an arguable breach is identified then article 3 provides: “No one shall be subjected to torture or inhuman or degrading treatment or punishment.” In Assenov v Bulgaria [1999] 28 EHRR 652 ECHR: “The court recalls that ill treatment must attain a minimum level of severity if it is to fall within the scope of article 3. The assessment of this minimum is relative: it depends on all the circumstances of the case, such as the duration of the treatment, its physical and/or mental effects and, in some cases, the sex, age and state of health of the victim.” In the case of R (P) v Secretary of State for Justice [2009] EWCA Civ 701, the court found that it “must involve a real and immediate risk to life”. However, in the case of Saya v Turkey Application No. 4327/02 Judgment 7 October 2008, the court stated that in respect of some of the applicants who had suffered injuries which included tenderness to the back of the legs and back, scratches on the back and tenderness and bruising there had also been a breach of article 3. This clearly shows that there is a wide interpretation of the minimum level of severity and whether there is an arguable breach will greatly depend on the circumstances of each case.

The extent of the arguable breach also has an impact on the scope of the inquiry and what might satisfy it. In R (AM & Ors) v (1) Secretary of State for the Home Department (2) Kalyx Ltd & Bail for Immigration Detainees (Intervener) [2009] EWCA Civ 219, the court acknowledged there was an arguable breach after detainees suffered ill treatment by the detention staff during a disturbance caused by other inmates. One of the points arising from that case was that the threshold for breaches needed to be more clearly defined. The dissenting judgment of Longmore LJ is a good example of the tensions at work: “It is not difficult to imagine cases of alleged article 3 mistreatment which would meet a full independent inquiry. But every allegation of a breach of article 3? There must surely be some sense of proportion.”

The proportionality argument should also not be ignored and needs to be taken into consideration at an early stage in deciding whether your client’s case will meet the criteria for an independent investigation. This was the approach that I adopted in my client’s case who had been tasered five times by officers of the Greater Manchester Police during an epileptic seizure he was having at his local gym. The effects of the tasers resulted in my client spending nearly two weeks in hospital recovering from organ failure and nerve-related damage. Even through the injuries that my client suffered constituted an arguable breach, there was no immediate plans to carry out an independent investigation. It was only when I highlighted the severity of the injuries and that police officers in the Professional Standards Department would lack the independence and impartiality to investigate such a complaint did the IPCC finally agree to hold an independent investigation.

Level of independence

The level of independence is therefore also an important factor in the decision-making process by the IPCC, and if a strong argument can be made on this point based on the circumstances of your client’s case then you are half way there. In the case of SP v Secretary of State for Justice [2009] EWHC 13 (Admin), Pitchford J held: “I am equally persuaded that past hierarchical or institutional connection between the investigator and someone ‘implicated’ could well cause an objective lack of practical independence. That may arise because the investigator had once served with the person implicated in either a junior or senior capacity, whether or not they had personal contact when serving together.” Practical independence was defined in the case of Porter v Magill [2001] UKHL 67 by Lord Hope: “The question is whether the fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that a tribunal was biased.”

Although the lack of practical independence in the police investigating the police is an obvious point that can be made you need to take into consideration that the IPCC have a discretion in the form of investigation they can conduct (schedule 3, paragraph 15(2) of the Police Reform Act 2002) and can comply with the practical independence point by referring the complaint to a different police force to investigate. However, the unconscious bias of the police investigating the police, the Re Medicaments test can not be so easily remedied, “it is the public perception of the possibility of unconscious bias which is the key”. In those circumstances only an independent investigation will suffice and be effective, and this point was held by Nicols J in Morrison v IPCC & Commissioner of Police for the Metropolis & Secretary of State for the Home Department [2009] EWHC 2589 (Admin): “He is entitled to have that claim effectively investigated. To be effective, the investigation must be independent. It is also accepted that the local investigation currently being carried out by the Met Police will not be independent.”

Effective investigation

Another factor which is central to an independent investigation is defined by the court in Jordon v UK (2001) 37 EHRR 52, which stated that: “The investigation must be effective in the sense that it is capable of leading to a determination of whether the force used in such cases was or was not justified in the circumstances and to the identification and punishment of those responsible.” Jackson J in R (Wright) v Secretary of Home Department [2001] EWHC Admin 520 goes one step further and says: “Such investigation is required, in order to maximise future compliance with the articles.” The purpose in other words is neither purely compensatory nor purely retributive, nor is it necessarily restricted to what has happened to the particular victim.

The effectiveness of the investigation is an important point as the IPCC justify that it will only be in breach of the obligation under article 3 if none of the suggested alternatives, singly or together, are sufficient referring to the prospects of either criminal and/or civil proceedings. However, that view is no longer recognised as a means to fulfil the criteria for an effective investigation and the judgment of Sedley LJ in R (AM & Ors) goes some way in removing that presumption: “Litigation is designed to secure individual redress, prosecution to establish individual culpability.” He does, however, make the distinction that the “average wrongful arrest, assault or false imprisonment claim” can be effectively investigated through civil proceedings and this was reiterated in the judgment of Longmore LJ who held that civil proceedings could be one means of discharging the investigative obligation under article 3.

However, he noted that in Banks v UK the court had confined the relevance of civil proceedings to allegations of negligence, and did not comment more generally on the materiality of civil proceedings as a means of investigating alleged assaults by the police.

Reference should also be made to the Home Affairs Select Committee report which echoes the arguments made by complainants that the complaints procedure can not be held to be an effective investigation and comments to that effect can no longer be considered as ‘broad generalisations’. The committee also heard that the appeals to the IPCC did not increase the possibility that there would be a prosecution and that any deficiency in the initial police investigation into the complaint was not automatically remedied. The local investigation and the appeal process can not be seen as a credible way of investigating serious complaints and will not satisfy the obligations of the IPCC if an arguable breach is identified.

Public interest

The last test that needs to be considered is whether it would be in the public interest to hold an independent investigation. The case of R (Amin) v Secretary of the Home Department [2003] UKHL 51 sets out the minimum requirements in Lord Bingham of Cornhill’s judgment which includes the need for a “sufficient element of public scrutiny”.

To meet this test there will need to be wider issues in relation to your client’s complaint; however, section 22 of the Police Reform Act 2002 states: “An independent investigation is conducted by IPCC staff into incidents that cause the greatest level of public concern, have the greatest potential impact on communities or have serious implications for the reputation of the police service.”

Although the average wrongful arrest, assault or false imprisonment claim may not fall within this category this does not prevent the argument being made in cases where there can be shown to be a significant impact on community relations with the police in not holding an independent investigation.

The local investigations conducted by the police are far from being independent or effective and are more like a ‘police-controlled exercise’ rather than an investigation. Although the IPCC has limited resources to investigate every arguable breach of article 3, it is not acceptable that it can not investigate more than one per cent of all complaints.

The new IPCC Statutory Guidance could have been the opportunity to address this issue and for the IPCC to take the necessary steps to impose a stricter criteria for investigating police assaults and address the damaging impact that they have on the perception of the police.

However, the more serious injuries do not feature highly in the new guidance and shows a reluctance by the IPCC to recognise the problem that still exists in the police complaints procedure.

The IPCC cannot forget that it is the police ombudsman and that although the cooperation of the police is essential for a complaints procedure to work that does not mean it should continue to relinquish its mandatory duty to those who are meant to answer to it.

http://www.solicitorsjournal.com/story.asp?storycode=16280&encCode=7670339861BC2177923JTBS737226611

Solicitors' Journal - Charging Ahead

Charging ahead 22 June 2010

By Sophie Khan

The new government's position on charging powers owes more to reassuring the police about impending budget cuts than considering the impact on the wider community, says Sophie Khan

You might have thought that the first public speech the new home secretary, Theresa May, should have made was to a community group dedicated to upholding civil liberties, especially as ‘civil liberties’ has become the new brand word for the Conservatives. Instead, she chose to address the Police Federation on 19 May 2010, and proposed to hand back more power to the police under a ‘new deal’ in policing.

Licence to police

For the first time in seven years, statutory charging decisions for minor offences, which have since the introduction of the Criminal Justice Act 2003 vested with lawyers at the CPS, would be made by custody sergeants in their ‘licence to police’ alongside existing extraordinary powers of arrest and charge for public order and road traffic offences.

Charges for common assault, theft and breach of bail would be solely decided by the police under the pretext that if there is “more freedom to the police professionals; more power to the people”. How this will relate into day-to-day policing may not be as easy as May thinks, especially as there are many situations involving police officers where the charging decision is taken because of a vested interest in ‘pinning’ something on the individual to ‘save face’.

Just a few days before May’s speech, District Judge Henderson sitting at Highbury Magistrates’ Court expressed his “grave misgivings” about a case that had been brought before him by the police, and felt that the police had charged my client with a minor offence in the hope that he would plead guilty. Fortunately, he was found not guilty and is now pursuing a civil action against the police to include malicious prosecution.

Although my client was able to pay for the costs of his defence, many other people in the same position do not have the same resources and find it extremely difficult to defend themselves against the police which leads to fines and convictions that they should not have on their records. The growing appetite of the police to abuse their powers in these situations has not being recognised and I do not think that May has fully considered the consequences of handing back further charging decisions to the police.

Lord Auld in 2001, following the inquiry of the criminal justice system, highlighted the numerous miscarriages in justice and mistakes that had been made by the police in their charging decisions. May needs to take this on board before she reverses a highly important aspect of the criminal justice system which has led to fewer miscarriages of justice and unviable cases being dropped at an early stage – saving millions of pounds of taxpayers’ money. The statutory charging decisions need to remain with the CPS, not just because lawyers are best placed to make the decisions based on the facts of the case but also because the individual suspected of an offence has the right to have his case seen by a CPS lawyer to preserve the integrity of the system. The input of lawyers in the decision-making process at that stage should not be underestimated, particularly as the public is shouting out for a stronger civil liberties society where there is a visible balance between the public and the state. The proposed ‘new deal’, however, goes against the grain of what the public expected of the new coalition government and seems to have ignored the mood of the time.

Democratic accountability

Although May has indicated that the “new freedom must come with strings attached”, she seems to have again ignored the strong opposition to her plans to have elected police commissioners. The Association of Police Authorities has already publicly stated that the plans will be “strongly opposed... but welcome proposals on cutting bureaucracy”. This could leave a situation which would take us back to the dark days of policing where the word ‘accountability’ did not even appear in the police’s dictionary.

Cutting bureaucracy will see the scrapping of the stop-and-search form, which will come as a heavy blow to the tireless work carried out by monitoring groups, such as the Westminster Police Stop and Search Monitoring Group, which over the years has successfully worked with the local police to establish greater accountability for individuals stopped in the Westminster area. May, as well as undermining the hard work of these groups, will also limit the statistics that could then be used to show patterns of discrimination in the use of stop and searches towards a section of society.

Without accountability locked into the procedure there will be more infringements of civil liberties with no means of recourse or redress – and recent cases such as Gillan and Quinton v UK, in the European Court of Human Rights earlier this year, would not have been able to show the disproportionate use of stop-and-search powers in section 44 of the Terrorism Act on black and Asian individuals.

The Equality and Human Rights Commission has also relied on stop-and-search statistics to raise the profile of police forces that continue to use the powers in a discriminatory way, and has written to the Metropolitan, Dorset, Leicestershire, West Midlands and Thames Valley police forces and given them until Friday last week (18 June 2010) to provide evidence as to the steps they will be taking to comply with equalities legislation. The home secretary may have thought that by making her maiden speech to the Police Federation she would be able to appease the police who will soon be subject to budget cuts. However, politicians need to be more realistic in the policies they are advancing and consider the full consequences for the whole community before making such public statements.

http://www.solicitorsjournal.com/story.asp?storycode=16438&encCode=9386898861BC0809923JTBS737226611&eclipse_action=getsession

Le Cool

Race The Great Pancake Race

Why not do something different for lunch today? All you need is 3 of your friends, some running shoes and a frying pan. The registration form needs to be completed by Friday but apart from that all you need to do is head down to Tower Hill Terrace, join in the race and choose a snappy team name. This year the fundraising will be for CLIC Sargent a charity which provides care for children with cancer. Last year the event raised hundreds of pounds from Help the Hospices and had teams from the City Police and HM Revenue of Customs. So as well as doing your bit for charity you can also get the one and only chance this year to get one up on any of them. Pancakes will be provided and the winning team will walk away with a bottle of bubbly. So what have you got to lose? / Sophie Khan
where
All Hallows by the Tower, Byward Street, EC3R 5BJ

when
1pm

how much
Free

Le Cool

film Breakfast at Tiffany's

Valentine’s Day is here again and for the lucky so-and-sos out there who do have a Valentine the question is what do you do this year? I’m talking to the boys here BTW. You’ve done the flowers, the chocolates, the dinner, the diamonds (if you are a rich kid) and probably also the nice weekend break which was much appreciated, I bet. So options are now limited and time is also ticking, only a couple of days left if you haven’t already booked or ordered something. But don’t worry, that’s what I’m here for, suggestions. And have a got a suggestion for you. It ticks all the boxes and if you are quick may still be able to book the few tickets that are still available. The screening of one of the best-known films which was made for Valentine’s Day, I think, will be showing across the capital on the day. So you have no excuses now. A surprise, a night out and something you will enjoy watching as well for a change. Who doesn’t want to be Paul Varjak? / Sophie Khan
where
BFI, Belvedere Road, South Bank, SE1 8XT
020 7 928 3232


when
6.20pm

how much
£9