Finnigan v Northumbria Police Chief Constable  EWCA Civ 1191
Subjects: Reasonable Adjustments – Public Authorities – Police – Provision criterion or practice – Practice – Policies – s 21B EA 2010 – s 21D EA 2010 – s 21E EA 2010
The police carried out lawful searches of C's property. C claimed that he was discriminated against because the searches were carried out without a British Sign Language Interpreter even though it was known to the police that he was profoundly deaf. The Judge rejected his claim and C appealed to the Court of Appeal.
D carried searched C’s home pursuant to search warrants obtained under the Misuse of Drugs Act 1971. C is profoundly deaf. The first search took place on 31 March 2010. Six or seven police officers attended, two of whom had previous dealing with C and knew he was deaf. However these officers knew that they could achieve a basic level of communication with him without a BSL interpreter through lip reading and writing questions and answers. He was able to communicate through his wife on this occasion. D argued that he was able to communicate without an interpreted and relied on the fact that he had negotiated a sale of cannabis with undercover officers In November 2010. A second search took place on 8 February 2011. He refused to cooperate with the police and turned his head away so that he could not lip read. An interpreter was not present on this occasion nor at the final search on 9 March 2011.
The practice, policy or procedure (PPP under s.21E of the DDA 1995, now PCP under s.20 EA 2010) was defined at first instance by the Judge as “the requirement that police executing search warrants, arresting suspected offenders and detaining them for purposes of interview attempt to establish effective communication with those persons”. The Judge held that C was able to establish effective communication during the searches and so the application of this PPP did not adversely effect C.
D also argued that the PPP was communicating by way of spoken English. The judge accepted that this PPP made it unreasonably adverse for C to experience the service. Consequently, the question was whether D had take reasonable steps to ensure that this PPP did not have the unreasonably adverse effect on C. The Judge concluded that the Chief Constable had made reasonable adjustments. Effective communication had been achieved on the facts as a combination of C’s abilities, his wife’s abilities and those of the officers had been sufficient. To require the attendance of an interpreter whenever a warrant is to be executed would have been unreasonable. It would make searches difficult to carry out secretly and quickly.
C argued in the Court of Appeal that the judge was wrong to identify the PPP as the attempt to establish effective communication and that he had erred in his approach to the duty to make reasonable adjustments.
The Court of Appeal first asked itself what the relevant PPP was. The judge did not address whether there was any evidence as to what the PPP was and stated that its identity should have been established as a question of fact. It was unclear on what basis he decided that the PPP was the "requirement" to "attempt to establish effective communication." Neither D's witness statements nor the oral evidence established what D's PPP was when searching premises. D gave evidence about what they did at the time, and how individual officers dealt with situations but there was no evidence of what the Chief Constable's PPP was.
By defining the PPP as "effective communication" the D (to achieve effective communication) with the means of achieving it. It was difficult to see how a policy of attempting to achieve effective communication could ever have an adverse affect on a person. It was the means of achieving the policy that the court was required to assess. The PPP represents the base position before adjustments are made to accommodate disabilities. It includes all practices and procedures that apply to everyone but excludes adjustments. In the present case this meant excluding the use of BSL interpreters, or lip reading and sign language used by trained officers.
The Court of Appeal held that, although there was no real evidence, the PPP included communicating in spoken English during the course of police searches. This, the court said must be the usual practice of the police searching a house in Northumbria.
The Court of Appeal also held that the Judge had erred in considering the needs of C as opposed to the needs deaf persons as a whole class (referring to Roads v Central Trains Limited  EWCA Civ 1541). The police could not be expected to anticipate the needs of everyone who may use their service. The duty could not be discharged by treating everyone as individuals and adopting solutions on an ad hoc basis. This would be inimical to the anticipatory nature of the duty to make reasonable adjustments.
There was no exploration in the evidence as to whether D had made any anticipatory changes to the PPP. The burden of proof shifted to D once a potential reasonable adjustment was identified. The first instance judge had simply held no adjustment was required but that was because he had misdirected himself and found that effective communication with C as an individual was possible. In this case there was no finding as to what adjustments he Chief Constable made to deal with deaf persons as a class. Although the burden of proof would ordinarily have fallen to the Respondent to show that the adjustments it had made were reasonable, in this case the Judge held, as a matter of fact, that C was not in fact disadvantaged by the procedure adopted by the police. In these circumstances C's claim could not succeed.
Finally, the Court commented that the policy of the legislation is to place disabled persons in a position as close to reasonably possible to that of the public at large and the judge’s comments on the practical implications were unconvincing.
There was criticism of the paucity of the witness evidence in this case. Representatives would be well advised to take on board the advice given by the Court of Appeal at para 42. In this paragraph the Court stressed the critical importance of adducing evidence to the Court as to (i) the content of the PPP/PCP and (ii) what adjustments it has made to alleviate the detrimental effects on disabled persons. In this case, perhaps because of the unsympathetic circumstances of the claimant, the public authority were fortunate to have escaped liability.
The full transcript is here: http://www.bailii.org/ew/cases/EWCA/Civ/2013/1191.html