The Commissioner of Police for the Metropolis v ZH (a protected party, by Gh, his litigation friend) Liberty (First Intervener) Equality and Human Rights Commission (Second Intervener)
| Jurisdiction | England & Wales |
| Judge | Master of the Rolls,Lord Justice Richards,Lady Justice Black |
| Judgment Date | 14 February 2013 |
| Neutral Citation | [2013] EWCA Civ 69 |
| Docket Number | Case No: B3/2012/0896 |
| Court | Court of Appeal (Civil Division) |
| Date | 14 February 2013 |
[2013] EWCA Civ 69
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE CENTRAL LONDON COUNTY COURT
SIR ROBERT NELSON
9CL02483
Royal Courts of Justice
Strand, London, WC2A 2LL
The Master of the Rolls
Lord Justice Richards
and
Lady Justice Black
Case No: B3/2012/0896
Ms Anne Studd QC and Mr Elliot Gold (instructed by The Commissioner of Police for the Metropolis) for the Appellant
Ms Heather Williams QC (instructed by Bhatt Murphy) for the Respondent
Ms Karon Monaghan QC (instructed by Liberty) for the First Intervener
Mr Jason Coppel (instructed by The Equality and Human Rights Commission) for the Second Intervener
Hearing dates: 22 & 23 January 2013
Introduction
The claimant, ZH, is a severely autistic and epileptic young man who suffers from learning disabilities and cannot communicate by speech. On 23 September 2008, he was taken by his carers from his specialist day school to the local swimming baths in Acton. He was 16 years of age at the time. During the visit, he made his way to the poolside where he became fixated by the water and did not move. This is a common reaction to water of those who suffer from autism. After about 30 minutes, police were called by the pool manager, Mr Hartland. When Metropolitan police officers arrived, ZH was still standing by the side of the pool.
Within the next few minutes, in circumstances that I shall describe later, the officers had caused ZH to jump into the pool. He was removed from the water by lifeguards and police officers. He was then forcibly restrained on his back by the side of the pool by five (subsequently seven) officers. After he was placed in handcuffs and leg restraints, he was taken to a police van and detained in the cage at the back of the van. He remained there until he was released to one of his carers. The restraint and detention lasted about 40 minutes.
The experience was intensely frightening and distressing for ZH. As a result of his autism, he has an aversion to being touched in an unfamiliar way and would not have understood what was happening to him. The agreed medical evidence was that he experienced an acute level of psychological suffering and as a result of the incident suffered from post traumatic stress syndrome and an exacerbation of his epilepsy.
The defendant accepted that officers had used force on ZH and that ZH had been imprisoned (for the purposes of the tort of false imprisonment). The burden therefore fell on the defendant to justify the officers' conduct. He contended that they had acted in ZH's "best interests" within the meaning of the Mental Capacity Act 2005 ("MCA") and that accordingly he was not liable in tort for their actions.
The defendant accepted that the officers had not, at any stage of the incident, sought advice from the school carers who were present as to how to deal with ZH in the light of his condition. It was ZH's case that the officers had unwittingly exacerbated the situation by physically restraining him. It was also his case that the police had failed to comply with the duty to make "reasonable adjustments" to the application of their usual control and restraint policies in order to accommodate his disabilities and had thereby unlawfully discriminated against him contrary to the Disability Discrimination Act 1995 (" DDA"). Finally, the claimant also contended that his detention and restraint amounted to breaches of articles 3, 5 and 8 of the European Convention on Human Rights ("the Convention").
Sir Robert Nelson upheld all these claims and awarded £28,250 in damages. In summary, he rejected the MCA "best interests" defence and held that the officers had failed to make reasonable adjustments to their usual policy/practices within the meaning of the DDA, as they had omitted to take reasonable steps to obtain relevant information from the carers both before and during their restraint of ZH, which was itself avoidable and disproportionate. The judge rejected the defendant's case that the circumstances were so urgent that it was impracticable and unreasonable to obtain this information.
The defendant appeals against all of the judge's findings on liability. He does not, however, seek to challenge the amount of the award of damages. Before I come to the issues and the law, I need to set out the facts as found by the judge in more detail.
The facts
On 23 September 2008, a group comprising five students including ZH and three carers (Ms Namballa, Mr Badugu and another classroom assistant) went to Acton Swimming Baths on a "familiarisation" visit. It was not intended that any of the students would swim. The group watched from the viewing gallery above the pool. When they left the gallery, ZH broke away and made his way to the poolside. He became fixated by the water. The carers knew that he had an aversion to being touched and would be likely to react adversely if he was touched.
Ms Namballa took the other students back to school, leaving Mr Badugu with ZH. Before she left, she told Ms Burton, one of the lifeguards, that she must not touch ZH because he was autistic and that, if she touched him, he would jump into the pool. Ms Burton called Mr Hartland, as ZH was still standing by the side of the pool. Mr Hartland came but did not succeed in persuading him to move.
At 15.24 hrs, Mr Hartland called the police saying "we have a disabled male trying to get in the pool…..the carer is trying to stop him and he is getting aggressive". In fact, ZH was not behaving aggressively.
At about 15.30 hrs, PC Colley and PC McKelvie arrived. They walked along a corridor that led to the poolside. Mr Badugu was standing in the corridor within sight and sound of ZH. The judge found that the police were faced with what he described as "a difficult and unusual situation". He made detailed findings of fact in relation to four discrete stages of the entire incident at paras 69 to 112 of his judgment. These stages were (i) ZH's entry into the pool after the arrival of the police; (ii) the time when he was in the pool; (iii) when he was removed from the pool and restrained at the poolside; and (iv) when he was in the police van. What follows is a summary of the judge's findings in relation to each stage.
ZH's entry into the pool
By the time of the arrival of the police, ZH had been standing by the side of the pool for at least 40 minutes. His behaviour was described by witnesses in various ways, but at para 12 the judge said: "whatever the precise manner of his behaviour was, it was clear to those who observed him that he was disabled". PC McKelvie spoke to Mr Hartland but not to one of the carers. It was probable that Mr Hartland told PC McKelvie that ZH had been standing there for "a significant amount of time". There remained the risk that ZH would jump into the water at any time, but his presence and demeanour by the pool did not suggest that he was going to do so imminently (para 70). PC Colley spoke to Mr Badugu in the corridor. He told her that ZH was autistic. The officer said that she could not stand there talking to the carer whilst someone might injure himself and possibly die. She felt that she and PC McKelvie had to go and help as there was an immediate risk to ZH and nobody was taking control of the situation. She said that she would have asked more questions if she felt that there had been time, but thought that it was more important to deal with ZH before talking to the carers any further. The police officers could see from the corridor that there were several lifeguards who would have been able to look after ZH's safety if he had entered the water. He was standing by the poolside towards the shallow end of the pool.
PC McKelvie went up to ZH and said "Hello Z, I'm Hayley" and touched him gently on his back to see if he would respond. He then moved closer to the pool and she thought that he was going to jump in. She therefore took hold of his jacket just as he began to gather forward momentum towards the water; and PC Colley also took hold of his jacket at the same time. But they were unable to prevent him from jumping into the water.
The judge found (paras 79 and 80) that, if PC McKelvie had not touched ZH, there was no reason to believe that he would have entered the water when he did. Neither his movements nor his position indicated that he was about to jump in. Quite apart from the touching, the presence of two uniformed officers coming up towards him and standing close, one on either side, was probably in itself sufficient to cause him to jump into the pool.
The time when ZH was in the water
ZH was not able to swim. He was fully clothed and the water came up to the level of his chest. He started to move towards the deep end, but the two lifeguards prevented him from going further in that direction by forming a cordon. The lifeguards and Mr Hartland grabbed him by the arms and legs and moved him further towards the shallow end. While this was going on, at 15.36 hrs PC McKelvie called for police support. Her radio message stated "Male is now in the pool. Not in danger/drowning….1 more unit".
The judge made detailed findings at paras 83 to 87 as to what happened while ZH was in the pool. He found that ZH was enjoying himself in the water and, for that reason and because he disliked being touched, he resisted attempts by the lifeguards to move him towards the shallow end; but he was not aggressive and was not lashing...
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