Police duties towards persons with disabilities: Work in progress

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.

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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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Disability and the Police

In contrast to my previous blogs, where I bored my (few) readers to death with my views on disability issues, in this blog I will not pontificate. But rather, I will ask questions, and return to the issue discussed here once I have done my research.

I was very intrigued last night to read a curious case: Finnigan v Northumbria Police [2013] EWCA Civ 1191, available here. The case concerns a deaf person whose house was searched by the police, without the presence of a BSL interpreter. The court held that the absence of a BSL interpreter did not disadvantage Finnigan in communicating with the police during the search.

The case got me thinking about two things:

1. What is the status of BSL under English law? Can deaf people claim that BSL is a minority language? If so, would there be an issue of direct discrimination, if the police, knowing that the person is deaf, chose not to bring in a BSL interpreter during a house search?

2. Best practice. Why aren’t police officers trained in BSL? Or are they?  By that I do not mean that all police officers should learn BSL, if that is deemed too expensive or impractical. But having one officer in each police station that knows BSL would be sensible. Could it then be argued that by not having at least one police officer who knows BSL, the police is indirectly discriminating against deaf people?

Over to you! Any comments or suggestions, very, very welcome!

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