Is it a fair cop?

Is it a fair cop?

Suing the Police is a task that encompasses criminal, personal injury and human rights law.

Stephen Ward foes on the bear with the lawyers who are seeking justice.

When London firm Fisher Meredith contemplated a poster campaign aimed at potential clients who may have an action against the police, it came up with the slogan: 'Dear suspect, your face hit my boot.'The poster had been approved in principle by the advertising authorities, as long as the firm could show it had clients who had faced such a degree of violence.

It said it could, but that did not stop London Underground from banning the campaign for being too political.

The underground eventually had to compensate the firm for its actions.Three years on, Fisher Meredith and other firms who represent clients in such actions still say they would find it all too easy to produce examples to convince the advertising authorities.Andre Clovis, one of four solicitors at the firm specialising in actions against the police, says one of his recent clients has just been awarded substantial damages by a jury in Sheffield who heard that he had received a bloody nose, a wrist so swollen a doctor suspected it was broken, and an eye closed by bruising after a police search of his flat.But despite the violent images, such cases are far from straight-forward for the 50 or so firms working in the field, which have a potential tide of clients.As Fiona Murphy, one of two partners at London firm Bhatt Murphy, points out, the defining characteristic of this branch of work is its complexity.She explains: 'It covers many different areas of law.

It comes from criminal law, so solicitors need to be conversant with criminal law, and often involves serious personal injury.'Solicitors also need to be familiar with running civil jury trials.

And there is still, as yet, no pre-action protocol in this area.

'Often you find the claimant and defence sides see the case from different perspectives.

Preparing for a civil jury trial, you need some skills in defamation as well,' Ms Murphy says, adding that a good knowledge of human rights law is essential.Some firms emphasise different parts of the work.

Many, like Fisher Meredith, combine police actions with prisons actions.

Others, such as Howells in Sheffield, are forming a dedicated human rights group.

Indeed, Howells has just won a key human rights decision against the Police Complaints Authority (PCA) (see [2002] Gazette, 4 January, 4).Although clients for police actions often come from the criminal practice within the firm, or from criminal departments of other firms, the civil and criminal law sections remain separate.Mr Clovis says he is grateful not to be doing criminal defence work as well, as his role in suing the police might jeopardise his treatment in police stations.Litigation is by definition confrontational, but in police actions feelings probably run higher than most.

Ms Murphy says: 'There is a lot of emotion on both sides.

The police officers would have it that the consequences for them if they lose may be very serious in terms of their police careers.'I have to say that is not our clients' experience - there have been many major jury awards against police officers who have continued to serve, or even been promoted, and certainly haven't been disciplined or prosecuted.'On the claimant side, the motive in suing is often not chiefly financial, but to bring facts to light, or to bring police to book, so they are not looking to settle quietly out of court, says Jane Deighton, a partner at London firm Deighton Guedalla.Ms Murphy says there is a complicated relationship between complaints procedures and civil court procedures.

Public law challenges can arise over decisions made during and after the police investigation.

Disclosure, or non-disclosure, of documents is a key area of contention.Howells solicitor Peter Mahy says the police often refuse to release a document, the PCA also refuses to release it, and by the time the judgment comes back against the client, it is too late to apply for a judicial review of the refusal.Mr Mahy's High Court test case should bring disclosure at an earlier stage.

His client was run over twice by an undercover officer, and sought access to a videotape thought to show the incident.The judge ruled that the PCA should reveal evidence to the firm to allow it to make representations, ahead of the authority's decision whether to discipline the officer.

The judge held that withholding the evidence was in breach of the Human Rights Act.Other clients simply do not bother with the police complaints procedure, and move straight to civil action.

Ms Murphy says: 'In the vacuum created by the state's failure to take effective action [against officers who break the rules], individual victims have had to turn to the civil courts to try to achieve vindication.

Their success rate through the civil courts has been dramatically higher than through the complaint or criminal processes [against police officers],' she says.

That discrepancy has been the subject of international criticism, she adds.

A special report published in 2000 by the European Court of Human Rights' torture committee emphasised this.Either way, the police commonly defend actions to the hilt, Mr Clovis says.

'They have the resources to do whatever they think needs to be done.

They retain experts if they need to.' The defendant of the action is the chief constable, or, in London, the Metropolitan Police Commissioner, so the ordinary police accused of an assault are not defendants but witnesses.To keep such actions viable as a business, there is still legal aid available for actions against the police and for preliminary advice on police complaints.

Although there is an element of social justice about the work, the decision on which cases to run with has to be a business one.Mr Clovis says: 'It is helpful that legal aid is hard to come by, because it focuses you at an early stage on the issues and on working out which cases are likely to be winners.'As he points out occasionally to clients who express doubts about his commitment to their cause, the fees almost triple in cases where the claimant wins and the fees are recoverable.

He says: 'If we win we get market rates, rather than legal aid rates.'Deighton Guedalla, which specialises in discrimination cases, will sometimes fight cases where there has not been a major incident to make a point of law.Ms Deighton cites the case of a black client stopped for ten minutes when driving an expensive car, which was fought to make the point that the police must not suspect an offence is being committed on the grounds of a driver's colour and the type of car he is driving.Ms Murphy agrees with the assertion that other criteria than the basic chance of success can influence the decision to take a case, though all cases are assessed critically and weak ones are never taken on.

'As a firm, we are committed to trying to improve and progressively develop the law, so if we feel a case has the potential to do that, it will have stronger prospects of being taken on,' Ms Murphy says.And according to Sarah Ricca, a specialist in actions against the police at six-partner London-based firm Hickman & Rose, and one of the solicitors behind the Police Action Lawyers Group (PALG), each case is different and it is not possible to run volume cases with economies of scale, as in a specialism such as road traffic personal injury.She explains: 'You are very reliant on documents because the case is the word of the claimant against the word of the police.

There will commonly be several officers backing each other up, while your client will often have a record.'There is a lot of work before disclosure of a document which may make the case collapse.

And the presence of a jury, while something everybody would support, only adds to the risk and unpredictability of these cases.Gareth Madge, force solicitor for the South Wales police and chairman of the 100-member Association of Police Lawyers, acknowledges that there is sometimes tension in the police enquiries.

But he ascribes this to the thoroughness required.

He adds: 'Funds are not unlimited; spending is always proportionate to the claimant's claim.'Even more than most specialisms, this is not an area for dabbling.

'We are referred cases all the time from firms who have started them and found they are failing,' Ms Ricca says.Mr Clovis says criminal law specialists will understand police procedures and know how to start an action, but not how to run a civil case.The advent of franchising has forced firms to become more specialised.

Ms Murphy says: 'The Legal Services Commission is imposing exacting requirements on firms before granting a specialist quality mark in this type of work.

They recognise there are differences in the success rate between those experienced in such cases and those not.

They require supervisors to have trial experience, for example.'But for all the complexity, Mr Clovis speaks for many practitioners when he says the overwhelming characteristic of the work is that it is exciting.Among the practitioners there is a strong camaraderie, formally through the PALG, set up a decade ago, and less formally by regular exchanges of information.As Mr Clovis says: 'There's enough work out there for everybody and we don't need to be protective against each other.

The task we face is uphill enough without adding to it.'Stephen Ward is a freelance journalist