Disability and the Police (Part 2)

When I read the case of Finnigan v Northumbria Police [2013] EWCA Civ 1191, available here I was really not sure what to think of it. The case concerns a deaf person, whose house was searched three times by the police. The police knew Finnigan was deaf, but did not bring a British Sign Language Interpreter with them, when conducting the searches.

The legal issue before the Court of Appeal was whether Finnigan was the victim of unlawful discrimination in the conduct of the three searches in that (in breach of section 21B of the Disability Discrimination Act) the Chief Constable failed to comply with the duty imposed on her by section 21E to make reasonable adjustments to her practice, policy or procedure.

Finiggan claimed that the relevant practice, policy or procedure (PPP) of the police is for officers to communicate in spoken English when they conduct searches of premises. This PPP made it unreasonably adverse for a deaf person when subjected to the detriment of a police search. The Chief Constable failed to take such steps as were reasonable to change the PPP so that it no longer had that effect.

The Court of Appeal held that in the present case, it was clear that the policy, procedure of practice of the police was to communicate in spoken English. It followed therefore that the Chief Constable was obliged to make reasonable adjustments to that PPP, so that conducting searches would not have a detrimental effect on deaf persons.

So, how can the duty to make reasonable adjustments be met in these cases? I quote para. 36 of the judgment:

Like any other public authority, the Chief Constable is under a duty to take such steps as are reasonable to change her PPPs so as to eliminate or reduce their detrimental effect on deaf persons. One way of doing this in relation to her PPP of officers’ communicating in spoken English would be for a BSL interpreter to be in attendance or on standby every time there is a search of premises occupied by a person known or believed to be deaf.   But there may be other reasonable steps that could be taken to achieve that result: see Roads at para 13.   Effective communication may be possible with some classes of deaf persons by other means, for example, with the assistance of officers skilled in lip-reading and sign language.  That this is a realistic possibility is strongly suggested by the judge’s findings on the facts of the present case.  It is important, however, to keep in mind the distinction between (anticipatory) changes to a PPP which are applicable to a category or sub-category of disabled persons and changes which are applied to individual disabled persons on an ad hoc basis.  The duty to adjust a PPP is to be judged by reference to the former, and not the latter.

In the present appeal, even though the Chief Constable did breach her duty to offer reasonable adjustment (by providing a BSL interpreter, or having an officer who could lip read etc.), the Court of Appeal held that no detriment was suffered by Finnigan in his ability to communicate with the police during the searches.

 In my previous post on this issue, here, I was considering that the policy issues of the case. I consider that best practice in the police should be to train some, if not all, police officers in British Sign Language. If you do know of such practices, such as the Plymouth police learning Makaton, please contact me.

However, I did some research, and there seems to be an issue which has slipped through the cracks in the judgment before the Court of Appeal, precisely because the case involved house searches. Imagine a scenario whereby there is an arrest warrant for a person, that the police know is deaf. The police apprehend the suspect without effectively communicating with him, the suspect is brought to the police station and a BSL interpreter is brought in with some delay. This deprivation of liberty, without  promptly informing the suspect in a language she understands, would be a violation of Art. 5(2) of the ECHR:

“Everyone who is arrested shall be informed promptly, in a language which he understands, of the reasons for his arrest and of any charge against him.”

I think I have not fully exhausted the legal and policy issues that this case touches upon. If you have any research pointers about BSL, similar cases, due process in criminal law, best practices of the police, please get in touch!


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