Saturday 10 November 2012

Bereaved families deserve justice for loved ones -2 November 2012 Solicitors Journal


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Sophie Khan welcomes the first Chief Coroner of England and Wales, but will coroners 
across the country implement his call for swifter, transparent decisions?

In September 2012, Judge Peter Thornton QC (pictured) took up his appointment as the first Chief Coroner of England and Wales. At the Howard League of Penal Reform - Parmoor Lecture on 25 October 2012 he set out his vision for a new coronial system in which he plans to place families at the heart of the process and ‘justice’ as the theme of his reform.
These changes will not just be welcomed by bereaved families but by their legal representatives who have been calling for greater accountability in the inquest procedure for years.
The new status quo of a “more flexible, more alive to the needs of the bereaved, more open and transparent” system will improve the way that inquests are conducted and mark a new standard in the deliverance of justice for the public.
The purpose of a 21st century coronial system will also place coroners under a statutory duty, even though such duty is contained in the schedule of the new Act to report to government, local government, agencies and institutions “so that lessons can be learned in the future”.
The chief coroner told Solicitors Journal that “the rule 43 process is really important in avoiding future deaths and reassuring families who have lost a loved one that this type of death will not happen again.” Identifying systematic failures in custody, treatment in prisons or police stations or a lack of warning signs against a special danger for the public are just a few examples which the chief coroner has stated could lead to changes for the better.
“Lack of clarity”
However, such changes have come too late for bereaved families such as the relatives of Kafi Ibrahim, a 14-year-old boy who drowned after jumping into Rainbow Dock, Surrey Quays in Lambeth, while playing with friends. At a two day inquest held at Southwark Coroners’ Court last December, the court heard that local residents had reported the frequency of children swimming in the dock during hot weather on a number of occasions to the dock office but that these reports were unknown to the staff at the London Borough of Southwark.
The coroner, Dr Andrew Harris recognised that “opportunities to explore potential for prevention with schools and the community had not been taken and there was a lack of clarity about reporting duties to the police and the water wardens.” However, he deferred making a rule 43 report until the local council had completed their procedural review.
Unsurprising the rule 43 report was subsequently abandoned once the procedural review was published on the grounds that the local council had addressed the findings raised at the inquest and the coroner could not see any reason to proceed to a rule 43 report. It is unknown whether the recommendations in the procedural review have been implemented.
The inquest proceedings has now concluded so there is no obligation on the local council to provide the bereaved family with an updateThe inquest proceedings has now concluded so there is no obligation on the local council to provide the bereaved family with an update
It is hoped that under the new Act such situations are not repeated and that there will be a presumption to make a rule 43 report in the future.
The chief coroner has also indicated to Solicitors Journal that there will be a dedicated staff member, from his small team of five, assigned to work exclusively on summarising themes and progress of rule 43 reports and to carry out a follow-up.
Police training
This will be of great significance to the relatives of Karlene Wright in their quest to achieve accountability for her death. Mrs Wright fell from a high storey car park, whilst police officers were in attendance but failed to prevent her death. The inquest held at Croydon Coroners’ Court in January this year heard that there was a lack of training for such incidences as no police policy existed to address this situation. The coroner, Dr Roy Palmer made a Rule 43 Report, for the Metropolitan Police “to consider whether it is possible either to issue some guidance or deal with the matter in basic training, or to update some guidance that may already exist.” The relatives of Mrs Wright have yet to hear from the Metropolitan Police as to whether they have now introduced a policy to cover such incidences in their training or what steps they are planning on taking to respond to the rule 43 report.
It is hoped that the Chief Coroner’s Office will be able to monitor the progress made by the Metropolitan Police in implementing training following this inquest and address any further delays on behalf of the family.
Delay is denial
The new Act will also address the delays in holding inquests, especially those which have not been held within a year of the death. The chief coroner has stated that “justice delayed is justice denied”. The inquest into the death of Mark Duggan, who was shot dead by Metropolitan police officers in August 2011 is planned to commence on 28 January 2013 despite efforts to delay the inquest until the retrial of Kevin Hutchinson-Foster, who has been charged with “selling or transferring a prohibited firearm” to Mark Duggan.
The inquest into the death of Alexander Litvinenko will also be held early next year, six years after he was poisoned with polonium-210 while drinking tea at the Millennium Hotel, Grosvenor Square. It is thought that the Attorney General’s Fiat to quash the verdicts given at the inquest of those who died at the Hillsborough disaster, 23 years ago will also be held next year.
The new Act aims to provide justice to the public, openly and transparently and the chief coroner is ready to take on the challenge to achieve this goal.
It is now up to the coroners in England and Wales to deliver the public justice denied in the past.
Issue: 

Vol 156 no 42 06-11-12

Wednesday 17 October 2012

Tasers: officer safety tool or threat to public safety?



Tasers: officer safety tool or threat to public safety?

Sophie Khan discusses the public safety implications of plans to
introduce Taser stun guns for police throughout London in the absence
of a public consultation.

Introduction

Now that the London 2012 Olympic and
Paralympic Games have come to a close, the
future of policing the capital has once again
taken centre stage. The Metropolitan Police
Commissioner Bernard Hogan-Howe’s ‘total
policing’ programme, with his ‘total war on
crime’, includes plans to roll out the use of
Taser stun guns in each borough of London.
The Commissioner announced in December
2011 that he would launch a number of
actionable commitments designed to improve
officer safety, and that one of those
commitments was his pledge that: ‘Each
borough to get Taser in two area cars.’ The
Metropolitan Police currently has 1,140 Tasers,
of which 446 are deployable by officers from
CO19 Firearms Command and the Territorial
Support Group. Since 2 July 2012, response
teams in Bromley, Harrow, Barking and
Dagenham, Enfield and Kingston have been
authorised, as part of a pilot scheme, to have
at any one time a maximum of four Tasers on
patrol in two vehicles. There is no fixed date by
which the remaining boroughs of London will
be given the same capability, but what is
known is that the Commissioner has no plans
to hold a public consultation before the roll
out of Tasers to consider whether such a
move has any safety implications for members
of the public.
 

Risks posed by Tasers


Tasers have been linked to over 500 deaths in
the United States, 26 in Canada and 15 in
Australia. The latest reported death in Australia
was of a Brazilian student, Roberto Laudisio
Curti, 21, who died after three Sydney police
officers fired their stun guns at his back,
reportedly as he was running away from them.
The New South Wales Ombudsman is
independently overseeing a police investigation
into the death, and an inquest is due to
commence this month. The similarities of this
case with the tragic death of Jean Charles de
Menezes – who was shot dead in London by
Metropolitan Police officers at Stockwell tube
station in 2005 – are striking, and reinforce the
argument that Tasers are as dangerous and
fatal as a loaded gun.
 

Use of Tasers in the UK


The increased use of Tasers by the British
police is of serious concern, as many of the
situations in which Tasers are being used are
not sanctioned under the Association of Chief
Police Officers (ACPO) Operational use of Taser
by authorised firearms officers – policy and
operational guidance (ACPO, 2008).1 However,
no steps are being taken by the Home Office to
address the unnecessary and disproportionate
uses on members of the public, even though it
has now become a trend routinely to Taser
those who are suffering from mental health
issues and disability before arrest. For example:
In January 2012, a disabled man,
dependent on a wheelchair, was Tasered by
West Midlands police officers when he was
unable to get out of his car.
In March 2012 officers Tasered a 59-yearold
man who was suffering from a rapid onset
of Alzheimer’s disease at the time of the
incident in Epworth, North Lincolnshire.
In August 2012, West Mercia Police referred
an incident to the Independent Police
Complaints Commission (IPCC), in which a
man from Worcester suffering from mental
health issues was Tasered by officers before
falling from a porch roof.
The sharp increase in the use of Tasers on
vulnerable individuals could be due to the
impression given to police officers that the
Taser is an ‘officer safety tool’ rather than a
‘weapon’.2 The reluctance of the Commissioner
to conduct a public consultation adds to this
perception, and needs to be challenged, as the
ACPO Taser policy specifically states that
Tasers can only be used when ‘officers [are]
facing violence or threats of violence of such
severity that they will need to use force to
protect the public, themselves and/or the
subject(s)’ (para 3.2). Outside this remit the
use of the Taser becomes unlawful and
exposes officers both to criminal charges under
Criminal Justice Act 1988 s134(1) and to a
potential breach of article 3 of the European

Convention on Human Rights (‘the
convention’), the prohibition that no one shall
be subjected to torture or to inhuman or
degrading treatment or punishment.
News that the Home Office is trialling the
prototype X2, a new Taser variant with a twoshot
capacity, adds to the concerns that the
ACPO Taser policy and guidance are not being
followed. The device has been specifically
developed with a double cartridge and carries a
‘power magazine’ capable of up to 500 firings.
It is unclear when the Home Office approved
the import of these weapons for the Centre for
Approved Science and Technology (CAST) to
carry out its own trials in the UK, as there has
been no public announcement. The lack of
transparency over such a decision leads to
fresh criticisms that the safety of the public is
being marginalised and that the findings of the
trials could be questioned, especially as there
has been no independent investigation into the
use of Tasers since 2008. The only reported
investigation was carried out by the IPCC and
published on 10 November 2008: IPCC report
on cases involving the use of Taser® between 1
April 2004 and 30 September 2008. The
Police Action Centre, launched in August
2012, aims to undertake the first independent
investigation into the use of Tasers by British
police since 2008 in the coming months, and
will report on the injuries sustained by those
who have been Tasered and whether the
current ACPO policy and guidance is
compatible with article 3 of the convention.
 

Use of Tasers abroad

In the United States, the argument about
whether or not the law enforcement agencies
are provided with the correct policy and
guidance has already been made. It was
reported that in March this year on appeal, the
US District Court Western District of North
Carolina Charlotte Division ruled in favour of
the Estate of Darryl Turner, a 17-year-old shop
assistant who was Tasered for an extended
37-second shock discharge, on all objections
filed by Taser International against an earlier
judgment, apart from a reduction in the award
of damages from $10 million to $5 million
(Fontenot, as Administratrix of the Estate of
Darryl Wayne Turner, deceased v Taser
International Inc, 27 March 2012). On the
motion of ‘Failure to Warn’, Taser International
argued that Darryl Turner’s Estate had failed to
show that Taser International should have
known of the inadequacy of its warnings at the
time of sale or at least by the time of Darryl
Turner’s death. The appeal court held that ‘a
reasonable jury could conclude that a different
warning would have resulted in a different
outcome’, and that ‘Plaintiff presented
substantial evidence that Taser’s warning was
inadequate and that its failure to provide a
reasonable warning was an actual and
proximate cause of Turner’s death’.
This is a significant judgment as it sends a
clear message to police forces that there are
real risks associated with Tasers which can no
longer be ignored. The outcome of this
judgment also reinforces the author’s view that
Tasers should only be used by firearms officers,
as they are a prohibited weapon under
Firearms Act 1968 s5(1).
 


Taser-related deaths
‘Excited delirium syndrome’


The US appeal judgment also dispels the
argument put forward by Taser International
that ‘excited delirium syndrome’ is the cause of
death of those who have been Tasered. Excited
delirium syndrome is said to be a pathological
condition and usually occurs when someone is
restrained in a prone position for a prolonged
period of time by a number of officers. The
symptoms include ‘superhuman strength’
which is similar to the adrenaline rush one gets
when one is under attack, the ‘fight or flight’
concept, and is a reaction seen in those being
restrained.
The syndrome is widely considered to be
used to ‘cover up’ police-related deaths, as it
has not been acknowledged as a recognised
cause of death by the UK’s Department of
Health or the World Health Organisation.
Additionally:
In Canada, the Braidwood Inquiry –
conducted by the retired British Columbia
Appeal Court Justice Thomas R Braidwood QC
in 2009 into the death of Robert Dziekanski, a
Polish immigrant, on 14 October 2007
following an incident in which he was Tasered
by Royal Canadian Mounted Police officers at
Vancouver International Airport – found that the
term was rejected by international medical
professionals and was being used to cover up
actual causes of death using Tasers and
extreme restraint.
The American College of Emergency
Physicians recognises the term, but notes that
the exact pathophysiology remains unidentified
and that no clear definitions or causes exist.3
 

Cardiac arrest

The death of Brian Loan, a 47-year-old man
from Sacriston, County Durham, is believed to
be the first Taser-related death in the UK. Mr
Loan was Tasered at his home and was then
taken to Durham City police station on 11
October 2006. He was released on bail, and
on the morning of 14 October 2006 he was
found dead by his father. During the inquest at
Gateshead County Court, the Home Office
pathologists found that Mr Loan was suffering
from severe heart disease and died of ‘natural
causes’. However, his family refused to accept
the verdict as they stated that he had never

previously complained of chest pains. Although
the coroner, Terence Carney, accepted the
opinions of the pathologists, he did state that:
‘It may be in five or ten years’ time somebody
may find a link, but no one has found one in
this case.’
The body of evidence that now exists
suggests that Taser-related deaths are a direct
consequence of the 50,000 volts of electrical
shock. An important recent study was carried
out by Dr Douglas P Zipes, a cardiologist and
professor emeritus at Indiana University. The
study analysed detailed records from the cases
of eight people who went into cardiac arrest.
Seven of the people in the study died, while
one survived. The study makes the case that
electrical shocks from Tasers can in some
cases set off irregular heart rhythms, leading to
cardiac arrest.4
 


Conclusion


In the light of this study, there needs to be a
review of the ACPO Taser policy and guidance
to ensure that the safety of the public is
being taken seriously by the state. The
Commissioner’s ill-advised decision to roll out
Tasers in the absence of a public consultation
is wrong, as the safety of the public must be
paramount. As the Taser may have the
potential to undermine the safety of the public,
the time has come to declare war on the Taser.
 

1 Available at: www.acpo.police.uk/documents/
uniformed/2008/200812UNTAS01.pdf.
2 See: www.channel4.com/news/taser-firings-theinside-
story.
3 Lisa Hoffman, ‘ACEP recognizes excited delirium as
unique syndrome’, Emergency Medicine News,
November 2009, Vol 31, Issue 11, p4.
4 ‘Sudden cardiac arrest and death associated with
application of shocks from a Taser electronic
control device’, Circulation – Journal of the
American Heart Association, 30 April 2012.


Sophie Khan is a solicitor-advocate, and
head of Actions Against the Police at a
leading firm in Surrey and London. She is
also the director of the Police Action
Centre: http://policeactioncentre.org.uk/.

 

http://www.lag.org.uk/files/94238/FileName/TaserOctober2012.pdf

Thursday 13 September 2012

Legal Action Magazine September 2012


Police Action Centre launched

September 2012


Sophie Khan, a solicitor-advocate and director of the Police Action Centre (PAC), who is also head of an Action Against the Police department at a leading law firm based in Surrey and London, writes:
PAC was launched last month and is the first organisation in England and Wales dedicated to providing a free, confidential and independent service to members of the public, protesters and prisoners on how to take actions against the police. The increased focus on the standard of British policing and the changes to the police complaints procedure coming into force in November 2012 will end the current role of the Independent Police Complaints Commission so that we will see a re-emergence of the police investigating the police. PAC will fill the gap which is left so that the public will be able to turn to an organisation that is on their side and able to provide free advice and information on how to challenge the police through the new complaints procedure.
In addition, PAC will act as a think-tank to identify and highlight areas of concern in British policing, and carry out independent investigations and campaign on specific police policies with the aim of achieving real change and a move to ending the disproportionate and indiscriminate use of police powers.
For example:
  • PAC will undertake the first independent investigation into the use of Taser stun guns by British police since they were first issued to non-firearms officers in 2008.
  • PAC will work with organisations such as the Stop and Search Legal Project to challenge the presumption that stop and search is a legitimate police policy.
  • PAC will run a specialist advice and information service for protesters and prisoners in the UK and abroad with the aim of creating a network of International Police Action Lawyers to support challenges against state authorities.
PAC will also aim to be a forum where the police and the public can engage and debate on policies in order to build a strong and accountable police force that is seen to be a part of the community.
Visit: http://policeactioncentre.org.uk/. E-mail: info@policeactioncentre.org.uk. Twitter: @policeactioncen


 http://www.lag.org.uk/Templates/Internal.asp?NodeID=94204

Tuesday 19 June 2012

Solicitors Journal - On the Beat

On the beat |Total surveillance

Blog | 19 June 2012
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The extension of police powers to indiscriminantly ‘snoop’ on communications data is an infringement of human rights
The general rule is that you never mix politics and policing. The government makes the laws and the police enforce them. The separation of the two powers is crucial in an open and democratic society that adheres to the rule of law. So it was surprising to read the commissioner of the Metropolitan Police, writing in The Times last week (14 June 2012), lobbying on behalf of the coalition government to legislate for new surveillance powers which will give the police, intelligence agencies and HM Revenue and Customs access to all our communications data. He states that: “It allows police to prove or disprove alibis, eliminate innocent people from an investigation and establish links between conspirators,” and that “in a significant number of cases, access to communications data is a matter of life or death”.
Current proposals are a direct challenge to the established presumption of innocent until proven guilty and an infringement of our basic human right, the right to a private lifeThe draft Communications Data Bill will force service providers to record and retain all activities of their customers for 12 months and hand over details of who they contacted, when, where and how, on request. At present, 25 per cent of data is not logged by service providers and the government is proposing to hand over £200m every year of our public funds to these providers in order to close that gap. The home secretary has justified such moves as “a vital tool” which is “a crucial part of day-to-day policing and the fingerprinting of the modern age”. Critics have labelled the draft bill a ‘snoopers’ charter’ and if the aim of the government is to introduce a digital fingerprint programme under the guise of fighting crime then I would have to agree. The Current proposals are a direct challenge to the established presumption of innocent until proven guilty and an infringement of our basic human right, the right to a private life
This “total war on crime” is nothing less than total surveillance and a creeping criminalisation of society. The reluctance of the government and the commissioner to seek independent oversight over such powers is not just concerning but demonstrates that they are willing to set up a totalitarian-style of policing. Under the proposals there will be no requirement to apply for a court warrant and instead the approval will be carried out in-house with a report being prepared for the interception of communications surveillance commissioner after the event. This will mean that there will be no strict controls over this new capability and the power will be susceptible to abuse.
Unjustified intrusion
It has already been reported that at least 500,000 requests for data access are made every year by public authorities. More than half of the requests are made by the police and intelligence services and, of those, between 2010 and 2011 only 124 requests were connected to a criminal case. The argument put forward by the commissioner that “put simply, the police need access to this information to keep up with the criminals who bring so much harm to victims and our society” does not correlate with these statistics and paints a different picture under closer examination.
The commissioner also said he believes that: “In the UK we police by consent.” However, the insatiable hunger for greater power could risk turning policing into a monster, uncontrollable and without any due process to the public, where consent would neither be sought for or wanted.
The odd suggestion by Nick Herbert, the police minister, last week that undercover police officers are allowed to have sexual relationships with activists under their surveillance, “if it is consentutory conduct falling within the Act that the source is authorised to undertake”, is a clear example of how the current laws under RIPA 2000 are being abused. The police minister has failed to recognise that the eight women who are pursuing civil claims against the Metropolitan Police for breach of their right to form relationships without unjustified interference by the state did not consent to having sexual relationships with policemen.
It is alleged that one of the officers named by the women include Mark Kennedy, whose actions led to the collapse of the trial of the six environmental protestors who were accused of conspiring to shut down Ratcliffe-on-Soar power station in January 2011 (blog post January 23 2011 ‘But officer!’ (www.solicitorsjournal.com/blog/beat)). Kennedy then became the central focus of the review led by Bernard Hogan-Howe in his role at Her Majesty’s Inspectorate of Constabulary (HMIC), which found that “there was serious intrusion into the lives of others”, and “there is not the same accountability to the courts as for evidence-gathering deployments”.
In light of such findings, I would have thought that the commissioner would have wanted there to be judicial oversight over new powers and, if he was to lobby the government, then he would have lobbied for greater accountability. The chilling words used by the home secretary that “the only people who have anything to fear from this are the criminals” is wrong as the government wants the power to spy on anyone for any reason and that is something that we must all fear.

Friday 8 June 2012

Solicitors Journal blog -On the Beat

On the beat | The case against privatising the police

Blog | 7 June 2012
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A publicly-run police services can’t be outsourced without the public’s consent
Since I last wrote about privatisation of the police on 24 May 2012 three more police forces have indicated that they will also consider privatising police staff on similar lines to the Lincolnshire Police deal with G4S in February this year.
Cambridgeshire Constabulary, Bedfordshire Police and Hertfordshire Constabulary will present their Police Authorities with plans to outsource support services later this month after a recommendation for a full business case was discussed by the Police Authorities Joint Collaboration Working Group last Wednesday, 30 May 2012. If the Police Authorities approve the plans it will see more police staff transferred to the private sector by April 2013 without a public consultation having taken place.
The deal to transfer 540 police staff from Lincolnshire Police to G4S was a watershed moment in the history of policing, but it was undertaken behind closed doors and the public was not consulted at any stage.
However, that is not the only criticism that has been raised against the deal to outsource policing services worth £200m to G4S. The deal which also includes plans for G4S to build and run a new police station in the village of Nettleham, Lincolnshire is also the subject of a conflict of interest accusation. Police bodies argue that there was a conflict of interest in the deal between Lincolnshire Police and G4S as the firm, White & Case represented G4S when Tom Windsor, a senior partner at the firm was undertaking the independent review of police officer and staff remunerations and conditions commissioned by the Home Office.
Nick Herbert, the Police Minister has responded to the accusation in his letter to the Police Federation of England and Wales on 24 May 2012 and seems to have declared war on the police. The language and tone of his letter, usually reserved for responses to trade union activists, is another blow to the damaged relationship between the state and the police. Will the police now “desist from intemperate attacks” as ordered by the police minister or will they look for a new alliance with trade unions for support and assistance as they did in 1917? I hope it is the latter and that militant mood of the police takes charge and we see a real change in their approach towards the Government.
The damning criticism of the police procurement process by the Home Affairs Select Committee in their report of 29 May 2012 is further proof that there is a case against privatising the police. The committee stated that the Business Partnership Programme “lacked clarity” and that West Midlands and Surrey Police had not “fully understood” the costly joint procurement exercise that they were undertaking. Regardless of these findings, both forces have now shortlisted six groups of bidders or consortiums following the bidders’ shortlist meeting on Friday 25 May 2012 and include: British Telecommunications, Reliance Secure Task Management and Vanguard Consulting; Capita Business Services; G4S Care & Justice Services; Kellogg Brown & Root and IBM United Kingdom; Logica UK, Amey Community and Northgate Information Solutions; and Serco, HP Enterprise Services and Accenture.
Even though the names of the bidders have been announced it is surprising that the scope of which police services will be in or out of the procurement process remain unknown. The Home Affairs Select Committee has asked the Chief Constables of West Midlands and Surrey Police to draw up a list of services that they envisage will form part of the procurement process. It is hoped that the list of services will be made available to the public as part of the public consultations planned to be held over the summer so that everyone knows exactly what is being proposed. A recent survey by Unite the Union has uncovered that the public are less likely to report a crime if their personal information was being accessed by a third party. Similarly, they were uncomfortable with private firms handling 999 calls, crime detection or investigations. It has been repeated of late that core policing services will not form part of the procurement process but I can not see how they will not, as some police services overlap while others fit together like a jigsaw. A clear line can not be drawn between each part of the police so it will be difficult to compile a list that will not in some way encroach on core services.
This “dangerous experiment” may seem like the only option to budget-driven analysts but the detrimental impact on core policing services outweighs such a move and instead a public-centric approach should be considered. The public want a publicly-run police service and without their consent I can not see how that can be allowed to change.

Friday 25 May 2012

Solicitors Journal blog -On the beat

On the beat | Privatising the police

Blog | 24 May 2012
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Now is the time to reinstate the police union says Sophie Khan
"We are all in it together!" in times of austerity, say the Tory-led coalition government but with David Cameron chillaxing at Chequers, in reality, it is the public sector workers who are facing the brunt of the cuts and the radical pace of reforms to the services that they provide.
On Wednesday 16 May 2012, the Home Secretary gave her speech at the Annual Conference of The Police Federation of England and Wales.
It was no surprise that Ms May would receive a hostile audience by the thousand or so Federation representatives from across all forces as the police service, as part of the public sector is also facing cuts. A 20 per cent cut has been proposed to its work force which will see 16,000 police officers lose their jobs by the end of this Parliament. The numbers are high but so is the police budget which stands at £14b a year.
The Police Federation agree that cuts need to be made to the police service as the public expenditure on policing is now unsustainable, but their grievances lie with the fundamental changes the Windsor report will bring once implemented.
The reforms will create a new culture of policing, ending the job for life ethos towards a more professional outfit by raising the level of qualifications for those joining as a Constable and introducing a direct entry scheme for talented individuals from the business sector.
However, the level of opposition to such changes during Ms May’s speech is likely to have bruised - if not broken - the special bond between government and police for the first time since 1918, when 10,000 Metropolitan Police Officers went on strike due to poor pay and conditions. The National Union of Police and Prison Officers founded by ex-Inspector John Syme in 1913 and reorganised in 1917 called the strike which led to improvements in pay and conditions.
The enactment of the Police Act in 1919 following the second strike banned the Union and with it the right to strike. The government laid down the law and since 1919 there has been no direct challenge to lift the ban.
But should that change now? I think so, as the challenges faced by policing in the twenty-first century need to be addressed, especially as the government has become fixated with privatising the police which could give private companies 10 to 25 per cent control over police services.
Although, Surrey Police, who are taking part in the Business Partnership Programme, along with West Midlands Police have called for a pause in the timetable to allow for a public consultation to take place over the summer, the shortlist for bidders is still going ahead this Friday.
There does not seem to be a desire to abandon the plans even though the public have already voiced their concerns and now serious questions have been raised over the human rights record of some of the bidders. Do we really want to give the company who built the cell blocks at Guantanamo Bay a stake in our police service?
Under such circumstances no one would criticise the police service if they wished to consider alternative routes to challenge government proposals. Collective action, the traditional weapon of the trade union movement should be an option that is explored. And if a National Union of Police Officers is the answer then a challenge to overturn the ban should be made.
I appreciate that the right to strike would be a last resort for many police officers but that should not deter those who feel that they should have a stake in the future of policing.
If the government is serious about protecting the Office of Constable then instead of privatising the police it should allow the holders of that office the ability to challenge it on an equal footing. The limitations of the Police Federation are evident and as long as there is a ban on Unions, the police service will remain at a disadvantage in negotiations with the government.
The advance of privatisation is a real threat to the future of policing and if the police do not challenge this now they may see that their rights are curtailed even further.

Tuesday 8 May 2012

Solicitors Journal -Tasers

Tasers: the safety of the public must be put first

8 May 2012

The Met Police commissioner has decided to roll out potentially lethal weapons without considering the risks or reviewing the current guidance, says Sophie Khan
Last November, the commissioner of the Metropolitan Police pledged that he would increase the number of Tasers on the streets of our capital following the stabbing of four Metropolitan Police officers in Kingsbury, Harrow. And at the beginning of April he did just that and added ‘roll out Tasers’ to his list of ten commitments drawn up for an internal publicity campaign. Within months there will be 64 more stun guns capable of being deployed as two fast response vehicles in each of the London boroughs will also be permitted to carry them.
The commissioner decided not to hold a public consultation, even though he was aware of the public interest surrounding the use of Tasers, and, as the Metropolitan Police Authority has now been abolished, there has also been no scrutiny of his decision. In the absence of any consultation the commissioner’s decision could be subject to a judicial review as he has failed to consider the real risks associated with an increase, especially when the safety of the device is being questioned more and more everyday.
It was only on 27 March 2012 that Taser International, the manufacturers of the stun gun, lost their appeal before the US District Court Western District of North Caroline Division in the case of Darryl Turner who died after being Tasered in 2008 (see ‘The Met Police must heed the warnings about Tasers’, Solcitors Journal 155/47, 13 December 2011). On appeal it was held that the “Taser causes sudden death” and that the device is being given to police with false assurances of its safety. The Taser has also been linked to 26 deaths in Canada and 15 reported deaths in Australia.
Due to the number of fatalities associated with their use the commissioner should have called for a review of the current ACPO Taser Operational Guidance to determine whether the Taser is safe to use on the British public. The incident in Forest Hill in February, which resulted in a man being shot by firearms officers, could have resulted in significant injuries to the officers who initially were relying on the Tasers to incapacitate the man. The reasons why the Tasers failed to deploy in such an incident needed to be investigated and taken on board before any increase in their use was commissioned.

Violence perpetuates violence

In response to my article of 13 December 2011, many readers felt that my criticism of the use of Tasers was unjustified as they felt that they had a right to protect themselves and “go home safely to their families”. I acknowledge the dangers that police officers face on duty but do not think that an increased use of Tasers is the answer, as violence perpetuates violence and instead communication should always be the first resort. The dangers to members of the public do outweigh the safety arguments made by the police and for that reason the commissioner should look again at his decision to roll out Tasers and seek alternative views before taking any further steps.
The use of the Taser has a part to play in policing, but because of the inherent dangers associated with the gun their use must remain limited. If there is to be an increase in their use then the ACPO Taser Operational Guidance has to be reviewed and updated so that the public has confidence that there is the requisite level of accountability when they are used. In the absence of a review it is difficult to see how the commissioner can justify handing over more lethal weapons to his officers when it has been proven that Tasers can cause death.
The commissioner must place the safety of the public first and learn lessons from countries where the number of deaths continue to rise as the number of Taser stun guns grow. I am regularly reminded by police officers that there is a difference in British policing to that of their American counterparts but they forget that the Taser stun gun they use is the same.
The same consequenc es could occur in Britain if the commissioner continues with his ‘roll out’ programme.
Total policing must encompass total consequences and until the consequences in relation to Tasers have been properly reviewed I believe that the safety of the public remains at risk.
Postscript:Sophie Khan is a solicitor advocate specialising in actions against the police at GT Stewart (www.gtstewart.co.uk)

http://www.solicitorsjournal.com/story.asp?storycode=20032&encCode=2108577861BC2234223JTBS737226611

Sunday 1 April 2012

Independent Blogs

Why Labour lost – A view from Bradford

Notebook - A selection of Independent views -Saturday, 31 March 2012 at 7:04 pm

george Why Labour lost   A view from BradfordThe Labour defeat at the Bradford West by-election on Thursday has come as a shock to the Labour leadership. Harriet Harman, the deputy leader of Labour, speaking on the Today programme labelled the result a “real last-minute phenomenon” but that is far from the truth.
The seeds of dissent where growing for years and the dissatisfaction of the local people was evident even from recent comments posted on many of the articles leading up to the by-election. They wanted change, they wanted a future and they wanted to be heard. Labour had taken Bradford West for granted. The ease in which they had won the last three elections meant that in their minds they were invincible and unbeatable. They had forgotten about the needs of the voters and the distrust felt towards the local Labour leaders who, by all accounts, had disconnected from the local people and local problems. Labour was by name alone and the people of Bradford West had had enough and I don’t blame them.
The lack of employment opportunities, the failure to secure investment and the inability to tackle the continual negative stereotypes were damaging the lives of many. Bradford had become a society within a society, closed off from the rest of Britain, dysfunctional and struggling to survive. To Labour, this insular society was championed as a success, but if you compare Bradford to cities such as Leicester, which embraces diversity and is recognised even by the Queen for its achievements as a multi-cultural hub of Britain, it is difficult to see why Labour had come to such a conclusion.
They don’t seem to share this view now though, and have turned to point their fingers directly at the people of Bradford themselves. Harriet Harman also adds that there is now “a particular problem in Bradford” and Ed Miliband is also reported to have said that he will be visiting the constituency in the coming weeks to “talk to people there about why this result happened”. It is staggering to hear that the Labour party can not recognise that they are the particular problem in Bradford and should be looking to address their own flaws before pointing their fingers at others. Labour’s failure to engage and connect with the local community has seriously damaged their relationship and as a result the people of Bradford West lost their faith in Labour’s politics as being a solution to their problems. They needed a change in leadership, in direction and in their future and that is why they voted against Labour.
The elitist political model that Labour has now become does not serve communities such as Bradford West well and if Labour can not embrace its traditional grass roots in such communities then it will find it hard to win back support of its one time stronghold. If Bradford West is to be reclaimed then Labour must change, the local people must be valued and for once their futures taken seriously. This blip can be overcome by the right candidate and with Labour’s commitment to deliver what it promises. Labour is the only party for the people of Bradford West. Their voices have now been heard loud and clear and a message has been sent that they will not be ignored. It is now time for Labour to sit down and listen and change for the future.
Image credit: Getty Images
http://blogs.independent.co.uk/2012/03/31/why-labour-lost-a-view-from-bradford/

Law Gazette - Comment

Some ‘rights’ have limitations in a democratic society

Sophie Khan
Thursday 29 March 2012 by Sophie Khan

The right to follow one’s religious beliefs has been recognised in this country for centuries – and following the enactment of the Human Rights Act 1998 those rights are now protected by law.
Article 9(1) of the European Convention on Human Rights 1950 enshrines that ‘everyone has the right to freedom of thought, conscience and religion’, which includes the right to ‘manifest his religion or belief, in worship, teaching, practice and observance’.
Some Muslim women have chosen to manifest their religion by wearing the hijab and, more recently, the niqab, a garment that covers the whole face, apart from a narrow slit through which the eyes can be seen.
In a recent ruling, which is reported to be the first of its kind, a Muslim woman was asked to stand down from serving as a juror. The woman, who was otherwise wearing a tight grey jacket, had veiled her face. Judge Aiden Marron QC, sitting at Blackfriars Crown Court on an attempted murder trial, felt that in that particular case it would be ‘preferable’ for her to remove her veil so that her face was exposed during the trial.
The veiled woman refused and another member of the jury pool was then sworn in in her place. There was criticism of the judge’s decision by some Islamic organisations, which did not understand the reasoning behind his ruling. His ruling was based on the judicial guidance on the wearing of veils in court issued by the Equal Treatment Advisory Committee in 2007. In those guidelines it states: ‘Each situation should be considered individually in order to find the best solution in each case. We respect the right for Muslim women to choose to wear the niqab as part of their religious beliefs, although the interests of justice remain paramount.’
It was in the interest of justice that the judge asked the veiled woman to stand down. The advocates may have been hindered in putting their case to her due to the barrier the veil creates and made it hard for the veiled juror to participate in the trial. As justice must be seen and done it would be difficult for the judge to justify the swearing-in of a veiled juror when her presence could be detrimental to the performance of the advocates – and ultimately raise questions as to whether a fair hearing has been held.
Excluded or barred
It is possible that the veiled woman will be able to sit as a juror on another trial, as there is no indication that she has been excluded or barred from jury service due to her veil. Her right to wear the veil has been respected by the judge and the correct exemption has been applied in her case. It should be recognised by the judge’s critics that some ‘rights’ have limitations which are necessary in a democratic society. For that reason, not all acts of exclusion should be classed as discrimination.
Regardless of that, many will see this ruling as part of a growing intolerance towards religious rights in favour of ‘miltant secularism’ and compare this incident with the experiences of Christian believers who have been excluded from their places of work. Their cases are to be heard in Strasbourg, hopefully this year, and will test the strength of article 9 in application to Christianity.
They argue that they have been denied the right to manifest their religious belief by not being allowed to wear a cross at work and have faced religious discrimination as a consequence. The government is challenging their claims, insisting that the wearing of a visible cross is not a generally recognised form of practising the Christian faith.
But a similar argument could be made against the wearing of the niqab, which is not a ‘requirement’ of core Islamic observance.
It seems to me that if an exemption can be made for a veiled woman to be excused from her civic duty then surely similar provisions can be made to accommodate those who wish to wear a cross.
Sophie Khan is a solicitor-advocate at GT Stewart, London
http://www.lawgazette.co.uk/opinion/comment/some-rights-have-limitations-democratic-society 

Solicitors Journal -Kettling

Kettling will not always be lawful

26 March 2012





On 15 March 2012 the European Court of Human Rights delivered the long-awaited judgment in Austin & Others v UK (Application nos 39692/09, 40713/09 and 41008/09). The court held “that there was no deprivation of liberty” and that “since article 5 is inapplicable, there has been no violation of that provision in this case”.
The judgment has come as a disappointment to those who believe that the police tactic of containment, or ‘kettling’, is deployed to dissuade individuals from exercising their right to freedom of expression and freedom of assembly. However, if closer examination is given not just to the Strasbourg judgment in Austin but also the recent Court of Appeal case of R (Hannah McClure and Joshua Moos) v The Commissioner of the Police of the Metropolis [2012] EWCA Civ 12 and the case of Castle & Others v Commissioner of Police for the Metropolis [2011] EWHC 2317 (Admin), there is a clear message contrary to that view. All three judgments, based on their own specific facts, recognise the fundamental right to freedom of assembly and instead of giving the police a ‘green light’ to curtail the right to protest are laying down strict guidelines for them to follow.
In Austin, for example, it is held that: “It must be underlined that measures of crowd control should not be used by the national authorities directly or indirectly to stifle or discourage protest, given the fundamental importance of freedom of expression and assembly in all democratic societies. Had it not remained necessary for the police to impose and maintain the cordon in order to prevent serious injury or damage, the ‘type’ of the measure would have been different, and its coercive and restrictive nature might have been sufficient to bring it within article 5.”
The same theme can be seen in the judicial review brought by McClure and Moos who challenged the strategic decision made by the Metropolitan Police to ‘kettle’ the Climate Camp based outside the Climate Exchange Building in Bishopgate on 1 April 2009. The judgment of the Master of the Rolls states: “We have concluded that a decision to contain a substantial crowd of demonstrators, whose behaviour, though at times unruly and somewhat violent, did not of itself justify containment…” and: “Containment of a crowd involves a serious intrusion into the freedom of movement of the crowd members, so it should only be adopted where it is reasonably believed that a breach of the peace is imminent and that no less intrusive crowd control operation will prevent the breach.”
An appeal against this judgment has been made to the Supreme Court which in due course will hear the arguments afresh; however, from reading of the judgment I find it difficult to see how a different conclusion will be reached, especially as the test and requirements to contain a crowd are clearly stated. The exceptional circumstances of both Austin and Moos cannot be ignored, and, had there not been a reasonable apprehension of an imminent breach of the peace in both instances, it is unlikely that containment would have been authorised.

Last resort

Containment was also authorised in Castle, again due to an imminent breach of the peace. Claims were brought by Adam Castle, Rosie Castle and Sam Eaton to challenge their containment within Whitehall on 24 November 2010. Adam and Sam were then 16 years old and Rosie was 14. All three had taken part in a demonstration against the proposed rise in university tuition fees and the removal of the educational maintenance allowance. They alleged that their detention within the containment was unlawful as “the defendant’s decision to contain and, therefore, to detain children constituted a breach of his duty under section 11 Children Act 2004” and that they were detained for an excessive period of time.
Pitchford LJ acknowledged “that the defendant... owed a statutory duty to have regard to the need to safeguard children and to promote their welfare”. However, he rejected the assertion that there had been no regard to that need and did not consider that the defendant was in breach of this duty or any of his public law duties.
Although the claims were dismissed it should be noted that the judgment provides guidance to the police if they take steps to interfere with an individual’s freedom of movement. It is held that: “The obligation upon the defendant was to avoid such action if he could. That duty required, where practicable, planning for alternatives to containment and, in any event, to minimise its impact on innocent third parties.” It goes on to say: “If the decision maker is unable to show that he could not, by taking reasonable steps, have avoided the need to use containment, or have mitigated the consequences to innocent third parties, in particular children, then he will have acted unlawfully towards them in breach of his public duty.”
This judgment reinforces the argument that ‘kettling’ is the last resort and that the police must scrutinise their actions if they are to stay within the law. The perception that police containment will always be lawful is not prescribed by case law and peaceful protests should continue to be held without fear or favour.
Postscript:Sophie Khan is a solicitor-advocate specialising in actions against the police at GT Stewart Solicitors (http://gtstewart.co.uk)
http://www.solicitorsjournal.com/story.asp?storycode=19829&encCode=675077316BC1060233JTBS737226611

Tasers in Times Law

Tasers - time to restrict their use?


Police officers must ensure that stun guns are used to the letter of the law or they may see face criminal charges
The incident in London last Sunday resulted in a 25-year-old man being Tasered and shot by firearms officers in the early hours of the morning, raising again the issue of the reasonable use of force by police. Was the dual use of the stun gun and firearms justified and proportionate?
The Taser-related incident in South East London on February 19 occurred within days of Amnesty International urging stricter limits on the use of the Taser stun gun.
Last week, it was reported that a 43-year-old man, Johnnie Kamahi Warren, had been Tasered twice by a police officer in Dothan, Alabama and died within hours due to breathing difficulties. Amnesty International has recorded that since 2001 there have been at least 500 people who have died in America following the use of the Taser either during arrest or while in jail.
The Taser stun gun, which is classified as a prohibited weapon under Section 5 of the Firearms Act 1968, should only be used when officers are facing violence or threats of violence of such severity that they would need to use force to protect the public, themselves or the subject. Outside this remit the use of the Taser would become unlawful and a potential breach of Article 3 of the European Convention of Human Rights, which states that “no one shall be subjected to torture or inhuman or degrading treatment, or punishment”.
Media reports tend to suggest that force on this occasion was disproportionate and reaffirm the need for a review of the ACPO Taser Policy and Operational Guidance.
Since 2008, there have been a significant number of cases that have involved Taser use on those suffering from mental health issues. Although the Guidance specifically states that caution should be taken against use on certain groups of people, in reality little regard is given to such warnings.
This is evident by the Channel 4 report last year, which found that there had been on average an increase of 130 per cent in Taser use across most police forces. It is difficult to see how the police can justify such an increase in one year, further weight to the view that the Taser is being used disproportionately and that we should take on board Amnesty International’s call to restrict the use of Tasers.
Tasers have a part to play in modern policing and if their use is correctly regulated and monitored then they could be an effective deterrent in the fight against crime. But until that time police officers must take appropriate steps to ensure that their use is to the letter of the law otherwise they may see themselves subject to criminal charges.
Sophie Khan, solicitor-advocate specialising in Actions Against the Police at GT Stewart and represents a number of people Tasered by the police 

http://www.thetimes.co.uk/tto/law/article3328524.ece