Solicitors Journal -Warning about Tasers

The Met Police must heed the warnings about Tasers
12 December 2011

Evidence shows this weapon can kill – it should be restricted to life-threatening circumstances, says Sophie Khan

The commissioner of the Metropolitan Police, Bernard Hogan-Howe, may be new to his post but he has already started to ruffle the feathers of many in London.

Along with the commissioner’s ‘Total policing’ programme, which aims to crack drown on gangs, uninsured drivers, and those who do not own a TV licence, he is proposing a widespread introduction of the Taser stun gun onto the streets of our cities. This backdoor militarisation of our unarmed police force, if implemented, would end centuries of traditional ‘policing by consent’ and propel us into a dangerous world of ‘policing by compliance’ where those arrested will be routinely subjected to 50,000 volts of electric shock.

His proposal on 22 November 2011 was made following the stabbing of three Metropolitan police officers on 19 November 2011 in a butcher’s shop in Kingsbury, Harrow, and made in isolation of the current statistics that show a dramatic rise in the use of the Taser stun gun over the last year. On average there has been a 130 per cent increase across the forces. The statement by the Metropolitan Police Service following the commissioner’s comments earlier on the same day confirm that “a piece of work is ongoing to review the current availability of Tasers”.

Tasers are defined in ACPO’s Taser Operational Guidance 2008 as “a single shot weapon designed to temporarily incapacitate a subject through the use of an electrical current, which temporarily interferes with the body’s neuromuscular system”. Their use is only permitted “when officers would be facing violence or threats of violence of such severity that they would need to use force to protect the public, themselves or the subject(s)”. If the use of the Taser falls outside this criteria then the offence of torture may have been committed as section 134(1) of the Criminal Justice Act 1988 states that “a public official or person acting in an official capacity, whatever his nationality, commits the offence of torture if in the United Kingdom or elsewhere he intentionally inflicts severe pain or suffering on another in the performance or purported performance of his official duties”.

The lack of a definitive list of circumstances in which a Taser can be deployed has left officers exposed to both criminal charges and violations of the Human Rights Act 1998. The state’s duty under article 3 of the European Convention of Human Rights provides that “no one shall be subjected to torture or inhuman and degrading treatment or punishment”. The use of the Taser stun gun could be an arguable breach of article 3 if officers are unable to establish the ‘appropriate’ and ‘necessary’ test for deployment. Assenov v Bulgaria [1999] 28 EHRR 652 provided further weight to this argument: “In respect of a person deprived of his liberty, recourse to physical force which has not been made strictly necessary by his own conduct diminishes human dignity and is in principle an infringement of the right set forth in article 3.”

Fatal consequences

A separate concern is the multiple Taser discharges that have lead to hundreds of deaths in the US. In 2008, Darryl Turner, a 17-year-old shop assistant in Charlotte, North Carolina, died after the Taser discharge was extended to a 37-second shock, and, in 2005, Robert Heston, a 40-year-old Californian man, was subjected to 75 seconds of repeated Taser discharges and died of a heart attack.

Taser International, the company that manufactures the Taser stun gun was ordered to pay $10m (£6m) and $6.2m (£3.7m) respectively in compensation to their families. The company maintains that although the product is safe it is not risk-free and for this reason the Taser is classified as a ‘prohibited weapon’ by virtue of section 5 of the Firearms Act 1968.

It is therefore worrying to learn that the Home Office has labelled the Taser a “tool that helps protect the public” when evidence shows the contrary. In the last year Tasers have been used on the elderly and on children and used by the Metropolitan Police’s territorial support group on teenagers in public disorder situations since 2008. The most recent reported use of the Taser was on the man who had injured the officers on 19 November after he allegedly continued to resist arrest at the police station. He was Tasered twice.

The Taser is a lethal weapon and its use can only be justified in life-threatening circumstances. The warning sign that an even wider use of the Taser could lead to fatalities should not be ignored and raises questions as to why the commissioner has not taken that into account. A public consultation on the use of Tasers is now overdue, and, in light of the ‘independent’ review commissioned by Labour into the future of policing in the 21st century, there is no better time to talk about Tasers.

Postscript:

Sophie Khan specialises in actions against the police at GT Stewart and represents a number of people who have been Tasered by the police. Contact: s.khan@gtstewart.co.uk

http://www.solicitorsjournal.com/story.asp?storycode=19323&encCode=410872516BC9777133JTBS737226611

ETHNIC MINORITIES DON’T ‘FIT THE IMAGE’

Posted on November 1, 2011 by Sophie Khan

It’s harder to get on in law if you’re not white, argues solicitor-advocate Sophie Khan

The August riots have forced the debate on whether there truly are equal opportunities for ethnic minorities in this country. Recent analysis by the Ministry of Justice and the Home Office into the background of those arrested have highlighted that a disproportionate number were young ethnic minorities who were unemployed and had been left behind in society.

You may think that the picture is different in the legal profession, but it’s not. From what I have seen over the years in my area of law (public law), it is now harder than ever for ethnic minorities to secure training contracts and pupillages. Not because of their want of trying or due to their abilities, but because many of them do not fit the image that law firms or barristers chambers are looking for in candidates to represent the future of their establishments.

Even in corporate firms, which have significantly increased the number of ethnic minority lawyers they employ, there remains a large underrepresentation of black people relative to the general population.

So why has this issue been ignored, or at least paid insufficient attention, for so long? Apart from one or two surveys that have identified this trend over the last couple of years, which includes the publication by the Law Society in May 2010 of Understanding the Barriers, there have been no active steps taken by many areas of the legal profession to address the increasing difficulties that ethnic minorities face when entering the legal profession.

The compulsory diversity data that all firms and chambers will have to publish by 2012 may be seen as way forward to try and force law firms and chambers to re-evaluate their stance on their employment practices towards ethnic minorities. But I do not believe that this will go far enough to address the issue, as the accuracy of the data will depend on whether the questions are answered in the first place. Many solicitors and barristers may choose not to disclose their diversity information for personal reasons.

In my opinion, this deep-rooted issue has to be tackled top-down if there is to be any meaningful change in the diversity of the profession. The changes will have to be led by partners and senior barristers who play a significant role in the recruitment procedure. They will have to set aside their own prejudices and recognise the strengths of employing candidates who may not fit their image but who fit an image that is widely recognised as the future of our society. And hopefully at some point these candidates will filter through to currently extremely white judiciary.

Sophie Khan is a solicitor-advocate specialising in actions against the police and public law at GT Stewart. She blogs at sophiekhan.blogspot.com and will be appearing on the #RoundMyKitchenTable podcast, hosted by Legal Cheek, this Friday.

http://www.legalcheek.com/?p=1079

#RoundMyKitchenTable: Legal Cheek

#RoundMyKitchenTable: PROTESTS, DISCRIMINATION AND MEMORIES OF PRINCESS DI

Posted on November 4, 2011 by Legal Cheek

Civil liberties lawyer Sophie Khan has a very different take on the OccupyLondon protests to #RoundMyKitchenTable co-host Kevin Poulter , a corporate lawyer. Journalist Alex Aldridge manages to disagree with them both. At which point, they change the subject and have an argument about discrimination faced by ethnic minority lawyers and law students, spurred by an article written by Sophie on Tuesday . Listen to this fiery exchange below (or on iTunes ).

#RoundMyKitchenTable4Nov.mp3 (22:00)

Download the MP3

Date: November 4, 2011

By: Legal Cheek

For #RoundMyKitchenTable on iTunes, click here

For a transcript of the podcast, click here. Transcript provided by Stretlaw.com Your access to Legal Education, 2011

http://www.legalcheek.com/?p=1327

Solicitors Journal- Singled Out

Singled out
15 August 2011


Main Page Content:By Sophie Khan

The detention of children should always be the last resort – the courts should not treat young protestors differently, argues Sophie Khan

The detention of the young has always been a controversial issue, not just because of the impact that a custodial sentence will have on the young person but also because it shines a grim light on society as a whole in allowing the young to be locked up in this way.

The Lord Chancellor’s pledge to reduce the number of custodial sentences is yet to be seen, as many young adults are still incarcerated for their crime even when non-custodial sentences may have been more appropriate in the circumstances of some cases. There are between 2,000 to 3,000 children aged between ten and 17 in custody at any one time either under sentence or on remand in England and Wales, and there does not seem to be any effective steps being taken to reduce that number.

The recent student and anti-cut protests which saw mass arrests of young people across the country by officers from Operation Malone and Brontide have now resulted in protestors receiving custodial sentences. The first of the student protestors to be sentenced was 18-year-old schoolboy Edward Woollard, who was sentenced to 32 months in January 2011 and is serving his sentence at a youth offender’s institute. This month we have seen the custodial sentences of students Francis Fernie, 20, and Charlie Gilmour, 21, who were sentenced to 12 and 16 months respectively.

But is custody the right option when it comes to sentencing young protestors? The offence in many occasions is a one-off incident, out of character for the young person who before this time has never been in trouble with the law. Although ‘deterrent sentences’ have a part to play in reducing the level of crime, they should not be seen as a solution when sentencing a protestor as no sentence will stop protests from happening.

Instead of the ‘deterrent sentence’, the courts must recognise that a non-custodial sentence will also get the message across to the younger generation that their actions were not acceptable, and most importantly will give them that much deserved second chance.


The harsh penalty of a custodial sentence should be a last resort and is seen as the last resort when it comes to youth detention in other types of cases. The judgment by Lord Justice Toulson in the case of R (on the application of A) v Lewisham Youth Court (Defendant) & Director of Public Prosecutions (Interested Party) [2011] EWHC 1193 Admin reaffirms the stance that courts should take when sentencing the young. This case was a judicial review by the claimant of the decision to remand him in custody in prison, rather than secure accommodation following his arrest and charge for an offence of murder. It was held that: “Even for a child or young person charged with an offence as grave as murder, remand in prison establishment should be the last resort. It was impossible to believe that parliament could have intended prison to be mandatory, regardless of whether the defendant could be safely kept in more suitable accommodation.”

The case of R (on the application of Suppiah and Others) v Secretary of State for the Home Department [2011] EWHC 2 Admin, which concerned the detention of two families, Ms Suppiah and her two children and Ms Bello and her child, also recognised that the detention of children should be the last resort. The Yarl’s Wood family unit detention centre subsequently had to close as it was held that the detention of children in those circumstances was unlawful.

Although many of the protestors who are facing charges are not children, they are young, vulnerable adults and equal consideration needs to be given to their age if they are sentenced. This approach does not seem to have been followed in all occasions and instead there has been a disproportionate response by the court in opting for the custodial sentence above all else which needs to be addressed quickly.

There is no reason why young protesters should be singled out in this way, and we need to keep the last resort last if we are to give the young protestors equal treatment within the law.


Postscript:

Sophie Khan is a solicitor-advocate specialising in actions against the police and public law at GT Stewart. Contact: s.khan@gtstewart.co.uk

http://www.solicitorsjournal.com/story.asp?sectioncode=3&storycode=18825&c=3

On the Beat- Keeping the flame alive

Sophie Khan talks shop

12 August 2011 – Keeping the flame alive

Is this the summer of protests? It definitely looks that way, and with protests, marches and demonstrations being organised on a weekly basis, it is time the government listened to the voices of the protestors and recognised the real damage that their reforms will have on the ordinary person.

Last month we saw the march to ‘Defend the NHS’ on its 63rd birthday and the month before the national strike on 30 June called by the National Union of Teachers (NUT) and the Association of Teachers and Lecturers (ATL), supported by the Public and Commercial Services Union (PCS), which lead to the closure of many schools and disruption at some airports as the UK Border Agency staff also joined the picket line.

The silence by Francis Maude, minister for the Cabinet Office, following the strike was priceless as he had previously rubbished the strike and had accused the strikers to have “jumped the gun”. But it is his government that has jumped the gun, by pushing through austerity cuts without real consultation and not recognising the severe impact these reforms will have on hundreds of thousands of people. The controversial comments by Oliver Letwin, the coalition’s policy minister, at a meeting with his constituencies over the weekend, that he is to instil “some real discipline and some real fear” only goes to show that the government knows that they have a fight on their hands against the cuts and one that they may not win.

So the right to protest and strike against the cuts continues and with preparations being made in Manchester for the Tory conference in October. How is the government going to quell the air of resistance?

The scaremongering tactics to arrest non-violent protestors during protests included the ‘snatch and grab’ seen on 30 June of a young man outside Charing Cross train station. The reason why the young man was arrested is unknown but what is clear from the footage of the incident on Youtube is that a group of policeman forcibly removed him from where he was standing in the crowd and took him away from the area.

The rise of the pre-crime arrests of activists before royal weddings is another example and is a tactic that is used by the police to round up known activists regardless of whether a crime has been or will be committed. This new policy stems from the ‘thought’ of a possible crime rather than whether there is evidence that a crime is going to be committed and seems to be taken straight out of George Orwell’s novel 1984 where it was the job of the thought police to uncover and punish thoughtcrime. The newsletter published on 29 July 2011 by Project Griffin, a police initiative which assesses the threat of terrorism in the City of Westminster, adds further weight to the thoughtcrime, as one of their initiatives is to report any information relating to anarchists to your local police.

These policies and tactics will not deter the protest movement which continues to gain momentum, but these need to be fought with the same vigour and force as the protests themselves. If it can be shown that the police tactics used are questionable or illegal then those arrests need to be challenged by lawyers at an early stage. Now is the time to mobilise an ‘army of lawyers’ against the ‘army of police’ to counter these practices, and the Lawyers’ Activist Network is one step towards bringing together pro-protestor lawyers from across the country to provide crucial support to activists so that their right to protest is protected.



http://www.solicitorsjournal.com/story.asp?sectioncode=3&storycode=17725&c=1

Citizen Khan - More unequal than others

More unequal than others
20 June 2011

Main Page Content:By Jon Robins, Sophie Khan

Lawyers behind the Commission of Inquiry into Legal Aid were well aware of the accusations of bias likely to be levied against them. As leftfield organisations opposing the legal aid budget cuts the Young Legal Aid Lawyers and the Haldane Society expected to be criticised for trying to pass off their inquiry as a piece of independent research.

What has come out of their series of hearings held in the Commons earlier this year undoubtedly reflects their existing wider social concerns: that the cuts will reduce access to justice for the vulnerable and that this, in itself, is bad for our definition of an effective justice system in a democratic society.

But their findings, published this week by Solicitors Journal in the Justice Gap series under the title Unequal before the law?, also evidence a unique, genuine attempt at bringing together in a non-political setting all interested parties holding differing views.

It is perhaps unfortunate that organisations in favour turned down the opportunity to send representatives to appear in person, preferring instead to send their comments in writing, refer the panel to previous position papers, or just not respond to the invitation.


Still, the findings shed new light on how legal aid has helped real people facing real difficulties, who would otherwise have been unable to bring or defend a case.

Two of the witnesses were at the launch event of the report last week. S, whose son had trouble at school and had been expelled several times, was only able to have him assessed following assistance by a legal aid lawyer. The result was that she was later able to secure a place in a SEN school.

The other witness, P, threatened with eviction after 47 years in the same property, was only able to stay in her home after two rounds of court proceedings. The first instance judge ruled in favour of her landlord but his decision was reversed on appeal. Importantly, her case showed that it was not only about the money and her ability to fund the case, but that without a lawyer able to take her case to appeal it would not have been possible to reveal that the first instance judge had made an error in applying the law.

Neither S nor P would be able to obtain legal aid if the proposed reforms go through, leaving S in a precarious financial situation, and P moving to a different neighbourhood where she doesn’t know anybody. Which raises a wider issue highlighted by several original witnesses and parliamentarians who joined in the debate held for the launch of the report. Legal aid, said Conservative Peer Lord Newton, cannot be looked at in isolation from other elements of the social concerns. The former social security minister said the proposed cuts would not give vulnerable people adequate protection. If a reform is to take place, he said, it must be in the context of broader parallel proposals. The availability of legal aid for welfare problems, for instance, should be considered in with the proposed welfare reform bill and localism bill. And Lord Bach, who hosted the event, said the proposed cuts were “economically illiterate”.

Access to justice not just about legal aid

-
Ministers tell us in last November's green paper that access to justice is "the hallmark of a civil society". At the time of writing, ministers are putting the finishing touches to draft legislation that, unless there is an unexpected change of heart, will remove £350m from a £2.5bn scheme.


Access to justice, as it is embodied in the civil legal aid scheme, looks like it will be disregarded as a luxury we cannot afford.


Earlier this year MPs were given a series of powerful, often uncomfortable, reminders as to the important role of publicly funded legal help in our society. The event took place in the House of Commons on 2 February. It was organised by the Haldane Society of Socialist Lawyers and the Young Legal Aid Lawyers.


The Commission of Inquiry into Legal Aid was a unique event. The exclusive focus was about examining what kind of safety net our system of publicly funded law provides for the poor or vulnerable clients (usually both) who rely upon it.


A series of ordinary people - not lawyers - gave testimony before a distinguished panel of non-lawyers in a crowded committee room 10. The former Liberal Democrat MP Evan Harris, the canon of Westminster Abbey, the Reverend Nicholas Sagovsky, and Diana Holland, assistant general secretary of the trade union Unite, weighed up evidence they heard at the session as well as written submissions from the recipients of legal aid and experts. They listened and then questioned people such as 'EP', a mother of two and victim of domestic violence. She recounted the trauma of escaping a self-destructive and abusive relation ("I was just giving up on life. I did not have the energy or the will to try and sort myself out...")


They also heard from Zoe Kealey who talked frankly about the unbearably painful events that led up to her brother Darwin hanging himself in Wormwood Scrubs. Her family was represented by a legally aided lawyer at the inquest ("Without legal aid we'd have been left with a void of not knowing what happened to Darwin").


The event made a powerful point. Access to justice is not just about legal aid, nor is it about access to the courts and a competent lawyer. It is a much broader concept. It encompasses a recognition that central to any notion of a decent society is ensuring that legitimately held rights are protected and can, if needs be, be enforced in a court of law.


Unequal before the law? publishes the findings of the three panellists, nonpartisan and independent-minded experts who all have a long track record of promoting social justice. By their own account, they are relative strangers to the specifics of legal aid. It also collects the testimony they considered (both 'for' and 'against') and we hope that it serves as a useful introduction for people who want find out more about the role legal aid plays in our society.


The panellists findings speak for themselves. They are:


Legal aid is vital to protecting the rights of vulnerable people.

Legal aid is vital to upholding the rule of law.

Legal aid is essential to holding the state to account.

Cutting legal aid is a false economy.

A holistic approach is needed in providing legal aid.

Cuts to legal aid will drive out committed lawyers.

Cutting legal aid is not a fair or effective way to reduce unnecessary litigation.


Jon Robins is a freelance journalist and director of legal research company Jures. He is also Justice Gap series editor


Citizen Khan

-
With lobbying patently unsuccessful at making the government change its mind over legal aid, citizens have only one option: take to the streets, says Sophie Khan


There is a lot to be said when 90 per cent of the responses to the consultation on legal aid disagree with the proposals. But for some reason that does not make any difference to the government. They will not heed the 'warning' signs that have been waved in their faces by the young, old and the ugly and will now plough away as they did with the cuts to the public sector. The changes to scope will go ahead and the legal aid budget will be slashed.


So, what does this mean in real terms? To me it will mark the beginning, unfortunately, of the end of 'legal aid' as we know it. The fourth basic right that we have in this country will be torn from us and, no doubt about it, it will leave the vulnerable and those less well off at the mercy of abuse and injustice. The pro bono sector will not - it doesn't matter how much Mr Djanogly and Lord Goldsmith wish and pray - pick up where legal aid ends. The pro bono caseworkers will not have the relevant expertise to advise the public and without that a vast majority of the public will be left to fight their own corners in and out of the courts. The heavy powers will reap the rewards of the cuts as their actions are more likely to go unchallenged and should they be challenged they will storm down with hell-fire style lawyers who will not take any prisoners. Without lawyers like me to counter-balance that authority and take them to task, the long-standing civil liberties and rights that we all enjoy will slowly be eroded.


But maybe that is the ultimate plan. If there are no rights, there are no protests. Let's join forces with the protest movement and change that so that the right to protest lives on.


Sophie Khan is a solicitor advocate specialising in actions against the police at GT Stewart. Contact: s.khan@gtstewart.co.uk

Unequal before the law?

-
Unequal before the law? The future of legal aid is edited by Jon Robins and published by Solicitors Journal in the Justice Gap series.


You can download an electronic copy free of charge at www.solicitorsjournal.com/justicegap

or purchase a hard copy at www.solicitorsjournal.com/bookshop

http://www.solicitorsjournal.com/story.asp?sectioncode=3&storycode=18571&c=3

Counterfire-Sophie Khan on Defend the Right to Protest

http://www.counterfire.org/index.php/blogs/146-infinite-thought/12523-sophie-khan-on-defend-the-right-to-protest

Twitter

http://twitter.com/#!/khan_sophie

Guardian -Comment is Free

Police reform bill ends accountability

Without a dedicated regulatory body, the chance of transparent adjudication into complaints against the police will be lost



Sophie Khan guardian.co.uk, Friday 8 April 2011 11.28 BST Article history

Thankfully, last month's anti-cuts march in central London did not lead to the kind of police brutality witnessed during earlier demonstrations. The IPCC received 111 complaints in connection with the student protests in November and December 2010. Nonetheless, UK Uncut protesters say the police "tricked" them during their occupation of Fortnum and Mason, giving them assurances that they would be able to leave the shop without interference and subsequently arresting them as they left. Should any of the campaigners choose to file a complaint about their treatment, the current structure of recording and handling complaints against the police will ensure it is recorded so that grievances can be identified and lessons learned. But will that still be the case if the police reform and social responsibility bill comes into force in May next year? I suspect not.


The bill, which is making its way through parliament, will bring the most radical change to the police complaints procedure we have seen since the reforms that followed the death of Stephen Lawrence. The Police Reform Act 2002, which replaced the much-criticised Police Complaints Authority with the Independent Police Complaints Commission, has in recent years been the gatekeeper to all complaints against the police and the only body to which complainants can appeal following local and supervised investigations by the police's professional standards departments. But that will no longer be the case from May 2012. The safeguards that were put in place by the publication of the IPCC's statutory guidance in April 2010 will be removed and an unregulated system of police complaints will result.


Schedule 14 of the bill at paragraph 8 (5) will give police forces unfettered discretion in determining which complaints they wish to record and – although, as exists today, there will be an appeal process to the IPCC for non-recording – one suspects the police will put up a fight when their authority is challenged.


But the most shocking and controversial aspect of the bill will be the loss of the independent appeal to the IPCC following a local or supervised investigation. This important element of the complaints procedure, although it does not uphold all appeals, does ensure that a fresh review of the complaint is carried out. Where the appeal is upheld, a reinvestigation is ordered.


My reading of the bill suggests these concerns have not been identified or taken on board and will become commonplace under an unregulated police complaints procedure, which is already open to abuse by the police. It is highly unlikely that investigations into complaints made by protestors such as Jody McIntyre, who was pulled out of his wheelchair and dragged across the road by a Metropolitan police officer during a student protest in December, would even be recorded in the future.


The powers that will be meted out to the chief officer as provided by paragraph 22 of schedule 14 are neither welcomed nor sought by the public. Once the bill is enacted it will end the only real opportunity for a transparent adjudication into complaints against the police, other than civil claims brought in court.


These reforms are in stark contrast to the home secretary's proposals to make the police service more accountable to local people. Without an external body to regulate the complaints, where is the accountability? The lazy provisions of the bill at paragraph 7 of the schedule state that the local policing body (the police and crime commissioners or the mayor's office for policing and crime) may direct the chief officers to take such steps as the local policing body thinks appropriate in order for chief officers to comply with their obligations. However, these provisions do not go far enough, especially as the local policing body will not have the power of an ombudsman.


Without the presence of a dedicated regulatory body for the police, many abuses will go unchallenged. The only viable option available against the chief officers would be to bring judicial review proceedings to challenge their decision. But with legal aid cuts on there way, will that avenue be open? We may see a return to a pre-Macpherson style landscape in policing, where the rights of the public and the protestor went unrecognised and the words "police" and "accountability" would not even appear in the same sentence.

http://www.guardian.co.uk/commentisfree/libertycentral/2011/apr/08/police-reform-bill-accountability

Solicitors Journal - Siren Call

Siren call
18 April 2011


Content:By Sophie Khan

The police reform bill threatens the future of an accountable and transparent police complaints procedure, argues Sophie Khan

The recent wave of demonstrations has renewed focus on the importance of the Independent Police Complaints Commission’s role. The current structure for recording these complaints requires that all are recorded so that grievances can be identified and lessons learned. But will that be the case in the future once the police reform and social responsibility bill is brought into force on 3 May 2012?

The bill, which at present is making its way through parliament, will bring with it the most radical change to the police complaints procedure that we have seen since its reformation following the death of Stephen Lawrence.

The Police Reform Act 2002, which created the Independent Police Complaints Commission (IPCC) in the wake of the highly criticised Police Complaints Authority, has been the gatekeeper to all claims against the police for several years. It is the only appeal body following local and supervised investigations by the police’s professional standards departments.

But under the new bill that will no longer be the case. The safeguards that had been put in place by the publication of the IPCC’s statutory guidance in April 2010 will be removed and an unregulated system of police complaints will emerge.


Open to abuse

Schedule 14 of the bill at paragraph 8(5) will give police forces an unfettered discretion in determining which complaints they wish to record and, although there will be an appeal process to the IPCC as exists today for non-recording, there is a sense that the police will put up a fight when their authority is challenged. As far as I can tell from the bill, these concerns have not been identified and will become a common theme of an unregulated police complaints procedure which is already open to abuse by the police.


It is highly unlikely that investigations into complaints made by protestors such as Jody McIntyre, who was seen pulled out of his wheelchair and dragged across the road by a Metropolitan Police officer during a student protest in December, would even be recorded in the future. But the most shocking aspect of the bill will be the loss of the independent appeal to the IPCC following a local or supervised investigation. This important aspect of the complaints procedure does not uphold all appeals, but does ensure that a fresh review of the complaint is carried out and where the appeal is upheld a re-investigation directed.

A new and unequivocal power will be meted out to the chief officer as provided by paragraph 22 of schedule 14 which is neither welcomed nor sought by the public. If enacted, the bill will end the only real opportunity for a transparent adjudication into complaints against the police other than civil claims brought at court.

These reforms are in stark contrast to the proposals that had been set down by the home secretary Theresa May to make the police service more accountable to local people. Without an external body to regulate the complaints, where is the accountability?


Not far enough

The lazy provisions of the bill at paragraph 7 of the schedule state that the local policing body, being the Police and Crime Commissioners or the Mayor’s Office for Policing and Crime, may direct the chief officers to take such steps as the local policing body thinks appropriate in order for chief officers to comply with their obligations. However, I believe these provisions will not go far enough to address this issue, especially as the local policing body will not have the power of an ombudsman.

Without the presence of a dedicated regulatory body for the police it is clear that a vacuum of power will emerge and many abuses will go unchallenged. The only viable option available against the chief officers would be to bring judicial review proceedings to challenge their decision. But, with legal aid cuts on the way, will that avenue be open? We may see a return to a pre-Macpherson style landscape in policing, where the rights of the public and the protestor are not recognised and police accountability is nowhere to be seen.


Postscript:

Sophie Khan is a solicitor-advocate specialising in actions against the police at GT Stewart. Contact: s.khan@gtstewart.co.uk

http://www.solicitorsjournal.com/story.asp?storycode=18235&encCode=5011339861BC7112233JTBS737226611&eclipse_action=getsession

Solicitors Journal Blog -On the Beat

On the beat

6 April 2011

Sophie Khan talks shop April 6 - Speak now, or forever hold your truth

The tough new security measures that have been proposed by the Home Secretary to “help [the police] to do their work” on the day of the Royal Wedding will signal the beginning of a policy that will be used to interference with the right to protest beyond the 29 April. Once these proposals will come into force it will be difficult to stop the police abusing the powers that they have been given as we have previously witnessed with the disproportionate use of section 44 stop and search power against protestors. The new proposals will go as far as using ‘football-style’ banning orders for ‘known hooligans’ and the power to forcibly remove head and face wear at a protest. But what the new proposals do not set out is who will be classified as a ‘known hooligan’ and what rights they will have to challenge their classification? Without knowing the answers to these questions it is likely that many protestors could be subjected to an unacceptable interference will their right to protest. The police, in my opinion, are using this opportunity to redefine the landscape in which to protest and restrict this fundamental liberty which will see even more protesters classed as criminals. The new Metropolitan Police team, Operation Brontide, set up following the anti-cut demonstrations is a definite move by the police to crackdown on the right to protest, especially as it is hot on the heels of Operation Malone, which led to an unprecedented level of arrests of students across the country. But with many of these arrests now concluding in no further action have the men behind Malone taken advantage of the situation? I feel that they have and the distress that they have caused in criminalising the younger generation while they themselves ‘live the good life’ now needs to be scrutinised so that the same mistakes are not made again. The damage and distrust that has been then created by their actions should not be underestimated and the news that 138 UK Uncut protestors have been charged with aggravated trespass over their sit-in at Fortnum & Mason on 26 March galvanises feelings among protestors that the law is being used and abused to fit ulterior motives. If this is the case the police run the risk of discrediting their own investigations and opening up a chapter in policing that I felt was dead and buried. The right to protest will live on whether the police like it or not as many, like myself will not let this cornerstone of our liberty be extinguished without a fight.



http://www.solicitorsjournal.com/story.asp?sectioncode=3&storycode=17725&c=1

Young Lawyer (Spring Issue)- Fight for your Right

Fight for your right
20 March 2011




When he was spotted pinching a policeman's hat during the siege of Millbank Tower, 22-year-old law student Bryan Simpson became instant tabloid fodder for the 'irresponsible' end of the student protests. So how come the likes of Michael Mansfield QC, Tony Benn and Noam Chomsky are among the 1,000-strong signatories to a campaign set up in his honour? We speak to the Strathclyde student and one of the Defend the Right to Protest team about keeping the police in check


“I was left in the middle of Cumbria, more than 200 miles away from home, with no way of getting back”

Although my involvement remained peaceful throughout the occupation of Millbank Tower, I found myself painted as the ‘Scottish leader of the violent mob’ by the media.

When I returned to Glasgow I was hounded by tabloid journalists, who also harassed my parents and my grandad.

I was arrested two weeks later at my home in Glasgow at 6am by five metropolitan police officers on suspicion of violent disorder.

I was put in handcuffs and left to watch as they raided my flat for evidence, before being taken on a three hour car journey over the border to Cumbria. Once there I was subjected to more than eight hours of questioning. The only evidence they seemed to have about my "violent disorder" were newspaper clippings and BBC news footage which showed me shouting to the crowd "tory scum, here we come" – the chant of the day!

I was eventually released at around 7pm and was told to my personal belongings and my phone had been seized for evidence gathering purposes.

I was left in the middle of Cumbria, more than 200 miles away from home, with no way of getting back.

My experience is in no way an exception. Dawn raids, usually used in drug and terrorism cases, are increasingly used by the Metropolitan Police in its policing of protests. I believe the primary objective of such a tactic is intimidation.

The difficulty with much of the law deployed in the context of public protests is that it is vague, which makes it relatively easy for the police to arrest people and relatively difficult for demonstrators to know when they have crossed the line.

It is highly possible that only a minority of the students arrested in connection with the recent student demonstrations will be charged, let alone convicted. More to the point, it is likely that those students who have had access to quality legal advice and who defend their actions will fair better in the end.

Bryan Simpson is a law student at Strathclyde University


The recent wave of student demonstrations has led to the arrest of at least 225 students following the launch of Operation Malone by Scotland Yard

Not all have been charged, but those who have face accusations ranging from breach of the peace to violent disorder. Some of these offences carry lengthy sentences – in the case of criminal damage it can be up to ten years imprisonment.


It is important for lawyers to see these charges in the wider context of the right to protest. As a means of expression, protests cannot be detached from the rights of freedom of expression. The European Court of Human Rights has taken this approach and recognises the value that public protest plays in any functioning democracy. As recent events in the Middle East have shown, sometimes the streets can be the most legitimate form of expression.

The risk is that in a climate where there has been an increasing overlap with the criminal law, antisocial behaviour law and antiterrorist legislation, the right to protest is trumped or marginalised by competing interests such as the protection of property rights, maintenance of public order or prevention of personal injury.

The law of protest is governed by negative rights. Every stage of holding a public protest has prescriptions. Notice must usually be given to qualify the demo as ‘lawful’. Certain words and gestures that can incur criminal liability must be avoided.

The threat of lengthy sentences loom over the crowd, with deterrence being the explicit rational.

This is not an environment conducive to greater public discussion. The protestor who is made to “face the full force of the law”, as David Cameron proclaimed after the occupation of Millbank Tower, is in a rather precarious legal position.

As those privileged few with direct access to the courts, lawyers are crucial to a culture where public protest is treated as a form of political expression worth protecting rather than something worth penalising or repressing.

The team is calling for all protesters who were arrested during the student demos to get in touch.

Fiona McPhail is a trainee solicitor based in Glasgow and a co-founder of the Defend the Right to Protest campaign. For more information visit www.defendbryansimpson.org


“There does not seem to be any debate about whether the police are in fact taking liberties. In my opinion, they are”

Operation Malone has resulted in vast and unnecessary arrests of students, many of whom have never been in contact with the police before and are being criminalised simply for exercising their right to protest.

There does not seem to be any debate in the public domain about whether the police are in fact taking liberties in the excessive use of their powers against the students. In my opinion, they are. Steps need to be taken now against this growing obsession of the men behind Malone to brandish a whole generation as ‘fair game’ trouble makers.

There must be an adequate response from both criminal and civil liberties lawyers against this unprecedented action by the police to stamp out all public descent. We as lawyers have to ensure rights are protected not just on the streets but also in court. When we fight in their corner we must remember that we are fighting for their freedoms and their future.

Sophie Khan is a solicitor-advocate specialising in actions against the police at GT Stewart Solicitors. Check out her blogs for us at http://www.solicitorsjournal.com/

http://www.solicitorsjournal.com/story.asp?sectioncode=3&storycode=18000&c=1

Solicitors Journal Blog- On the beat

http://www.solicitorsjournal.com/story.asp?sectioncode=3&storycode=17725&c=1


BLOG


On the beat
7 February 2011



23 January 2011 - But officer!

The police are getting a bit of a rough time in the press at the moment. Not that I really care as it’s most likely that they deserve it, especially if the stories are true.

Unless you’ve been on the moon this month, you will have heard about the collapsed trial of the six environmental protestors who were accused of conspiring to shut down Ratcliffe-on-Soar power station and the subsequent allegations that have been made of an undercover officer, who had infiltrated their group as an agent provocateur. This case, along with the revelations that undercover officers are often promiscuous when carrying out their job, raises serious questions over covert policing and whether it is now time to shine a bright light on this area of law and order.


ACPO, the supervisory body, has now been stripped of its role and there are possibilities that common law actions for negligence and misfeasance in public office may follow suit. The former director of public prosecutions made damning comments about the accountability of covert operations and I would agree that at present accountability is scarce in this undercover world and that the Regulation of Investigatory Powers Act 2000 (RIPA) needs to be more tightly drafted so that activities that are carried out in the name of covert surveillance are proportionate.

It has only been a couple of months since the discovery of West Midlands Police’s misguided Project Champion, which installed CCTV and ANPR cameras in east Birmingham, a predominately Muslim community. The chief constable made the best heart-felt apology he could in the circumstances and it has since been reported that the cameras will be removed – but at the estimated cost of £630,000. Was it worth it? I don’t think so, and examples of these types of surveillance projects worry me as I don’t think they are isolated cases.

Surveillance is out of control and with the enormous costs attached to running these projects there needs to be a greater degree of proportionately in the decision-making process before they are put in action. When they go wrong, they don’t just damage the reputation of the police they damage the fabric of a free society and that takes a long time to heal.

The murky world of undercover policing has now left police officers exposed and the sacred veil that they used to hide behind is no longer there. Proportionate covert policing is the only way forward and this needs to be implemented sooner rather than later for the benefit of all.