Tomorrow, 11/02/14, I will be presenting a paper at the Disability Research Forum at Sheffield Hallam University. I want to thank Dr. Rebecca Mallett for having me. I have uploaded the powerpoint at Slideshare here.
This presentation is very much work in progress. Since I read the judgment in Finnigan I knew there was something that made me uneasy about this case, but I could not put my finger on it. I hope this paper and the discussion afterwards will clear things up in my head.
Below is a very short summary of the points I am going to raise in my paper.
This paper examines several recent judgments which relate to duties of the police towards persons with disability. In Dordevic v Croatia, available here, the ECtHR held that the police should protect persons with disabilities from hate crime, even if the instances of hate crime are low level harassment. Failure to do so violates Art. 3 ECHR.
English case law has also provided some examples of a disability-sensitive approach to policing. The well known case of ZH v the Commissioner of the Police for the Metropolis, confirmed by the Court of Appeal, available here, has held that the police must offer reasonable accommodations when carrying out their police duties towards persons with disabilities. In that case, the police acted on misguided emergency and did not consult with carers as to how to protect an autistic teenager from falling into a pool. The subsequent restraint of the autistic person left him with post-traumatic stress disorder and exacerbated his epilepsy. The Court of Appeal affirmed that the actions of the police constituted assault and battery, false imprisonment, failed to provide reasonable accommodations and violated Articles 3,5 and 8 of the ECHR. Impressive #fail.
In the case of Finnigan v Chief Constable of Northumbria, available here, the disability-sensitive approach is confirmed. The police need to revise their procedures, in accordance with their equality duty, and provide reasonable accommodations to persons with disabilities, otherwise this will constitute unlawful discrimination. The police conducted a number of house searches in the appellant’s home, who was D/deaf. Even though the appellant preferred to use British Sign Language, he could also communicate through other means. On the facts of the case therefore, the appellant did not suffer any detriment from not having been provided with reasonable accommodation (i.e. a BSL interpreter), so his appeal was dismissed.
The claim i will be making in my presentation is that this line of reasoning does not fully capture what is legally at stake here. If a person is Deaf, i.e. identifies him/herself as part of the Deaf community and uses BSL as the primary means of communication, not providing a BSL interpreter is discriminatory in the same way that a search on someone’s person cannot be conducted by a police officer of the opposite sex. Saying that the appellant did not suffer any detriment could be regarded as audist – an expression of audiocentric view of the case. Not providing a BSL interpreter for a Deaf person arguably also violates Art. 9 CRPD, by denying accessibility to alternative means of communication. This point is debatable, as the Deaf community does not necessarily view itself as disabled.
At any extent, even though I consider that Finnigan does not fully capture the issues relating to sign language and D/deafness, the importance of this case and the other two already mentioned is that they require the police to review their procedures. The best way forward is for the police not simply to examine what their equality duty requires, but to conform to best practices which eradicate any ableist or, in the case of Finnigan, audist effects.