Finnigan v Chief Constable of Northumbria Police
| Jurisdiction | England & Wales |
| Judge | Master of the Rolls,Lord Justice Jackson,Lady Justice Gloster |
| Judgment Date | 08 October 2013 |
| Neutral Citation | [2013] EWCA Civ 1191 |
| Docket Number | Case No: B2/2012/2121 |
| Court | Court of Appeal (Civil Division) |
| Date | 08 October 2013 |
[2013] EWCA Civ 1191
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM NEWCASTLE-UPON-TYNE COUNTY COURT
HIS HONOUR JUDGE WALTON
0SR01725
Royal Courts of Justice
Strand, London, WC2A 2LL
The Master of the Rolls
Lord Justice Jackson
and
Lady Justice Gloster
Case No: B2/2012/2121
Ms Catherine Casserley (instructed by Sheffield Law Centre) for the Appellant
Mr Toby Wynn (instructed by Northumbria Police Legal Services) for the Respondent
Hearing date: 23 July 2013
Approved Judgment
In these proceedings, Mr Finnigan alleges that the Chief Constable of the Northumbria Police is liable for breaches of section 21 of the Disability Discrimination Act 1995 (" DDA") and section 20 of the Equality Act 2010 (" EA") arising out of lawful searches conducted by the police of his home pursuant to the Misuse of Drugs Act 1971. Mr Finnigan is profoundly deaf. The searches were conducted on 31 March 2010, 8 February 2011 and 9 March 2011. It is common ground that the search warrants were lawfully executed on each occasion. Mr Finnigan's case is that he was the victim of unlawful discrimination because the searches were carried out without a British Sign Language ("BSL") interpreter, in circumstances where it was known to the police that he was profoundly deaf. His claim was dismissed by His Honour Judge Walton. He appeals with the permission of Toulson LJ.
BSL is a language in its own right which is regularly used by a significant number of people. It is a visual-gestural language with its own vocabulary, grammar and syntax.
The facts
The judge heard a good deal of evidence from both sides in relation to each of the searches. He said that Mr Finnigan "came over as a highly unreliable source of evidence" and that where there was a conflict of evidence, he preferred what the police officers had to say (para 31). He rejected the allegations of mistreatment by the police that were made by Mr Finnigan. The judge also specifically rejected as "inherently implausible" his allegation that Mr Finnigan's wife could communicate with him at only a very basic level (para 32). So far as material, the facts are as follows.
At 16.15 hrs on 31 March 2010, six or seven police officers executed a search warrant at Mr Finnigan's home in Sunderland. They were not accompanied by a BSL interpreter. Two of the officers said that they had had previous dealings with him and knew that he was deaf. The two officers who had had previous dealings with Mr Finnigan were satisfied on the basis of these dealings that they could achieve a basic level of communication with him without the benefit of a BSL interpreter. They had previously been able to communicate by lip reading and writing questions and answers. The officers were in the house for nearly two hours. Mr Finnigan was able to explain through his wife that the £400 cash that they found was for his rent.
In November 2010, Mr Finnigan made a sale of cannabis to undercover police officers from his home. At the trial, the Chief Constable contended that Mr Finnigan's ability to negotiate the sale showed that effective communication with him was possible without an interpreter.
The police returned to search Mr Finnigan's home at 21.00 hrs on 8 February 2011. Again, they were not accompanied by an interpreter. He was found to have £1700 in his possession. He refused to cooperate with them. He turned his head away so that he could not lip read what they said to him. He signalled to his wife to say that the money was for his rent. The final search took place at 20.00 hrs on 9 March 2011, once again without an interpreter.
On each occasion, Mr Finnigan was arrested and taken to a police station. Complaints about his treatment at the police station form no part of the appeal.
At para 35, the judge summarised his overall findings as to the effectiveness of the police communication with Mr Finnigan in the following terms:
"Starting with the times when the search warrants were being executed, it was accepted on behalf of the Chief Constable that the standard of effective communication applied, for instance, when the search warrants were being executed. When performing that function a police officer is required to explain in a comprehensible manner his authority for the search. I am satisfied that was done on two of the occasions complained of; and insofar as it was not done on the 8 th February 2011 that was because the Claimant himself deliberately declined to co-operate in attempting to achieve communication. So, he did indicate that he understood the reasons for their visit on 30 March 2010. He was able to explain that the £400 the officers found was for rent. On 8 February 2011 he was able to give his explanation about the sum of £1,700."
The relevant statutory provisions
The relevant parts of the EA came into force on 1 October 2010. Accordingly, the DDA applies to the first search and the EA applies to the second and third searches. It is common ground that the differences between the provisions of the two statutes are not material to the issues that arise in this appeal. I shall concentrate on the provisions of the DDA.
Section 21B provides:
"(1) It is unlawful for a public authority to discriminate against a disabled person in carrying out its functions."
Section 21D provides:
"(2) For the purposes of section 21B(1), a public authority also discriminates against a disabled person if–
(a) it fails to comply with a duty imposed on it by section 21E in circumstances in which the effect of that failure is to make it–
…
(ii) unreasonably adverse for the disabled person to experience being subjected to any detriment to which a person is or may be subjected,
by the carrying-out of a function by the authority."
Section 21E provides:
"(1) Subsection (2) [to section 21D] applies where a public authority has a practice, policy or procedure which makes it—
…
(b) unreasonably adverse for disabled persons to experience being subjected to any detriment to which a person is or may be subjected,
by the carrying-out of a function by the authority.
(2) It is the duty of the authority to take such steps as it is reasonable, in all the circumstances of the case, for the authority to have to take in order to change that practice, policy or procedure so that it no longer has that effect."
Thus the DDA uses the phrase "practice, policy or procedure". The corresponding phrase in the EA is "provision, criterion or practice": see section 19(1) and 20(3) of the EA. But I emphasise that, in so far as there is any difference between the two phrases, it is not material for present purposes.
Section 53A of the DDA provides that the Disability Rights Commission ("the DRC") may issue codes of practice. Subsection (8) provides:
"Failure to observe any provision of a code of practice does not of itself make a person liable to any proceedings, but any provision of a code which appears to a court or tribunal to be relevant to any question arising in any proceedings under Part II or Part III shall be taken into account in determining that question."
The DDA Code of Practice provides a definition of "practice, policy or procedure" ("PPP") in these terms:
"7.7 When a service provider is providing services to its customers, it will have established a particular way of doing this. Its practices (including policies and procedures) may be set out formally, or may have become established informally or through custom. The terms practice, policy or procedure cover:
• what a service provider actually does (its practice);
• what a service provider intends to do (its policy); and
• how a service provider plans to go about it (its procedure).
…………….
6.14 A service provider's duty to make reasonable adjustments is a duty owed to disabled people at large. It is not simply a duty that is weighed in relation to each individual disabled person who wants to access a service provider's services…
6.16 Service providers should not wait until a disabled person wants to use a service that they provide before they give consideration to their duty to make reasonable adjustments……"
The DRC has been replaced by the Equality and Human Rights Commission and the DDA Code of Practice has been replaced by the Equality Act 2010 Services, public functions and associations Statutory Code of Practice. The EA Code of Practice came into force on 6 April 2011: see The Equality Act 2010 Codes of Practice (Services, Public Functions and Associations, Employment and Equal Pay) Order 2011/857. It follows that the DDA Code of Practice (whose provisions in relation to reasonable adjustments are broadly similar to those in the EA Code of Practice) is applicable to all three of the searches with which we are concerned.
The judgment
At para 38 of his judgment, the judge said that the PPP "should be defined" 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". He continued by saying that at every stage the police achieved effective communication with Mr Finnigan (save for 8 February when he was deliberately uncooperative). He was therefore not satisfied that the PPP was unreasonably adverse in its effect so far as Mr Finnigan was concerned.
He then considered the position on the alternative footing that (as was contended on behalf of Mr Finnigan) the PPP was communicating with suspected offenders on the...
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