England and Wales Court of Appeal (Civil Division) Decisions

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
		08/10/2013

Master of the Rolls:

1. 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.
2. 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

3. 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.
4. 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.
5. 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.
6. 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.
7. 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.
8. 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

9. 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.
10. Section 21B provides:

"(1) It is unlawful for a public authority to discriminate against a disabled person in carrying out its functions."

11. 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."

12. 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."

13. 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.
14. 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."

15. 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……"

16. 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

17. 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.
18. 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 occasions in question by way of spoken English. If that was the relevant PPP, the judge accepted (para 32) that the "unreasonably adverse" requirement of section 21E(1)(a) (sic) of the DDA was satisfied and the issue was whether the Chief Constable did what she reasonably could to ensure that the PPP did not have that unreasonably adverse effect: see section 21E(2). He concluded that she did. The reasonable adjustments required of the police would be to ensure that, so far as reasonably practicable, effective communication was achieved. What was required "would vary with the occasion, the circumstances, and the ability of both parties to communicate otherwise than by speech" (para 41).
19. At para 42, he said:

"I reject the submission that reasonable adjustment requires the attendance of an interpreter whenever a search warrant is to be executed at the premises of someone known to be without hearing and speech. That seems unreasonably wide in effect and goes beyond the scope of the present case, which is whether on these present facts an interpreter was required. Nevertheless I accept points made on behalf of the Chief Constable that it would be unreasonable to have a system whereby interpreters attended premises to be searched, but only entered once the premises had been checked and secured. By that time most of the meaningful exchanges with any deaf occupier would have been completed. Moreover I agree that on the occasion of some searches speed and confidentiality are vital and would be at risk if the Chief Constable was required to notify interpreters in advance.

20. At para 43, he said that on the facts of this case no such adjustment was required "because a combination of the Claimant's own abilities, his wife's and those of the police officers themselves were sufficient to achieve effective communication for purposes of the searches on 31 March 2010 and 9 March 2011". He concluded at para 47 that, since reasonable adjustments were made, Mr Finnigan received a service from the police which was as close as reasonably practicable to the standard offered to the public at large.
21. I should add that BSL interpreters had accompanied the police when they conducted searches that had been made of Mr Finnigan's home prior to the three with which these proceedings are concerned. At para 46, the judge said that the officers who executed the search warrants on those occasions may not have had previous experience of Mr Finnigan. The circumstances of these earlier searches were not known. Although the fact that interpreters were provided on earlier occasions should be kept in mind when considering the reasonableness of what was done, the judge did not accept that it was determinative.

Mr Finnigan's case in a nutshell

22. Mr Finnigan's case is that he was the victim of unlawful discrimination in the conduct of the three searches in that (in breach of section 21B of the DDA) the Chief Constable failed to comply with the duty imposed on her by section 21E to make reasonable adjustments to her PPP. It is submitted that her PPP is for officers to communicate in spoken English when they conduct searches of premises. This PPP made it unreasonably adverse for a deaf person to be subjected to the detriment of a police search and she failed to take such steps as were reasonable to change it so that it no longer had that effect. It is submitted that, in relation to any police search of premises occupied by a person known or believed to be deaf, the PPP should have been adjusted so as to provide for officers to be accompanied by a BSL interpreter or at least for an interpreter to be available on standby to attend at short notice.
23. Ms Casserley submits on behalf of Mr Finnigan that the judge erred in two fundamental respects. First, he was wrong to identify the PPP as the attempt to establish effective communication. Secondly, he erred in his approach to the duty to make reasonable adjustments to the PPP. A number of criticisms are made in relation to the second point, but the central complaint is that the judge failed to consider whether the Chief Constable failed to take reasonable steps to change her PPP by reference to the needs of deaf persons as a class, rather than by reference to the particular needs of Mr Finnigan.

What is the relevant PPP?

24. The judge did not address the question of whether there was any evidence as to what the PPP was. Its identity should have been determined as a question of fact, regardless of whether there was a formal PPP or one had become established informally or by custom. It is not clear on what basis he decided that the PPP was the "requirement" to "attempt to establish effective communication".
25. There was nothing in the witness statements filed on behalf of the Chief Constable which explained what her PPP was in relation to the conduct of searches of premises. The police witness statements provided evidence that effective communication could be, and had been, achieved by the police officers with Mr Finnigan through a combination of his lip-reading skills, the police mouthing and his indicating his assent or dissent by making gestures and by written communication with him and/or his wife. They also stated that it would be impracticable and potentially wasteful of costs to take a BSL interpreter on a drugs search or to have an interpreter standing by.
26. Likewise, the oral evidence did not address the specific question whether the Chief Constable had a PPP in relation to the execution of search warrants. PC Jenness said that, if he was struggling to communicate with a deaf person, he would try to obtain an interpreter or go to communal liaison officers. He spoke about briefing meetings before a search took place, but in none of the operations in which he had been involved had there been any consideration of whether an interpreter should form part of the search team. PC Hewitt said that he was not troubled about the question whether an interpreter was required for the purposes of executing a warrant and he was not aware of the DDA Code of Practice. PS Boustead said that part of his legal training was not to treat everyone the same, but rather to treat everyone as individuals. He said that in every single incident one had to be able to adapt one's communication styles to suit the particular audience.
27. There was some confusion in the court below in relation to Mr Finnigan's case as to the identity of the PPP. His pleaded case was that it was "arresting deaf persons without an interpreter to inform them of their rights" (para 31 of the Amended Particulars of Claim). But the PPP contended for by his counsel at the hearing (not Ms Casserley) was "the practice of relying upon spoken English for communication in relation to the execution of the search warrant or for purposes of interview". The Chief Constable's case seems to have been that the PPP was (as the judge accepted) that of establishing effective communication.
28. I have already referred to para 7.7 of the DDA Code of Practice definition of a PPP. By defining the PPP as "effective communication", the judge conflated the aim of the Chief Constable (her policy of achieving effective communication) with the means of achieving it. There are three distinct elements to a PPP in section 21E(1) of the DDA. A public authority may commit a breach of duty in relation to one or more of these elements. The judge concentrated on the policy element to the exclusion of the practice and procedure elements. There was no justification for doing so. It is difficult to see how a policy of attempting to achieve effective communication could ever have an unreasonably adverse effect on deaf persons. By definition, such a policy is not discriminatory. But the means of attempting to achieve effective communication may well be discriminatory. By excluding these from the definition of the Chief Constable's PPP, the judge was bound to be deflected from the correct course.
29. So what was the relevant PPP? It is important to distinguish between a PPP and the adjustments made to a PPP to alleviate the detrimental effects to which a disabled person may be subjected by it. The PPP represents the base position before adjustments are made to accommodate disabilities. It includes all practices and procedures which apply to everyone, but excludes the adjustments. The adjustments are the steps which a service provider or public authority takes in discharge of its statutory duty to change the PPP. By definition, therefore, the PPP does not include the adjustments. In the present context, a PPP will exclude the use of BSL interpreters in order to improve communication with deaf persons in the conduct of police searches of premises. It will also exclude the use of lip reading and sign language by trained police officers, because these measures too are adopted to alleviate the detriment that would otherwise be suffered by deaf persons.
30. That is why in my view the judge was right to accept the alternative submission that the PPP included communicating in spoken English during the course of police searches of premises. That was the standard form of communication. It is true that this was not explicitly stated in evidence. But, in the absence of evidence to the contrary, it is difficult to imagine that the police would communicate otherwise than in spoken English when conducting the search of a house in Northumbria. There was no such contrary evidence. The judge was entitled to find that the usual practice of the Northumbria police was to communicate in spoken English.

Duty to make reasonable adjustments

31. In so far as the judge may have considered whether the Chief Constable had failed to make reasonable adjustments by reference to the needs of Mr Finnigan rather than by reference to the needs of deaf persons as a class, he was in error. As Sedley LJ said in Roads v Central Trains Limited [2004] EWCA Civ 1541 at para 11 (in the context of a case about the provision of services by a train operator): "[public authorities] cannot be expected to anticipate the needs of every individual who may use their service, but what they are required to think about and provide for are features which may impede persons with particular kinds of disability". The same point is made at paras 6.14 and 6.16 of the DDA Code of Practice.
32. It is not in dispute before us that the duty to make reasonable adjustments is anticipatory. It is owed to disabled persons at large in advance of an individual disabled person coming within the purview of the public authority exercising the relevant function.
33. It follows that the Chief Constable was obliged to make reasonable adjustments to her PPP of conducting searches in spoken English so that it did not have a detrimental effect on deaf persons. It is clear that this duty could not be discharged by treating everyone as individuals and adopting communication styles to suit the circumstances of the particular case on an ad hoc basis. The anticipatory nature of the duty is inimical to the idea that reasonable adjustments may be made by deciding on an individual basis to conduct a search with or without a BSL interpreter in attendance or on standby according to exigencies of the particular situation.
34. The judge did not make any finding as to the nature of any general adjustment that it was reasonable to make to the Chief Constable's PPP to reduce or eliminate the detriment caused by it to deaf persons as a class. He rejected the submission that reasonable adjustment required the attendance of an interpreter whenever a search warrant was to be executed at the premises of someone known to be deaf. And he held that there was no breach of the duty to make reasonable adjustments in this case, since it was possible to achieve effective communication during the searches that took place on 31 March 2010 and 9 March 2011 (Mr Finnigan deliberately making communication impossible on 8 February 2011). In reaching this conclusion, he lost sight of the anticipatory nature of the duty to make reasonable adjustments and focused on what occurred during the searches that took place on the facts of this case.
35. Does it follow that the police must always have a BSL interpreter in attendance or on standby when they conduct a search of the premises of a person they know or believe to be deaf? The judge expressed a concern as to the practical implications of such a requirement for effective policing at para 42 of his judgment.
36. 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.
37. The problem in the present case is that there was no exploration in the evidence of whether the Chief Constable had made any anticipatory changes to her PPP: see paras 25 and 26 above. Such evidence as there was suggested that changes to the PPP (which were not recognised as such) involved no more than individual decisions as to how most effectively to communicate with persons on an ad hoc basis.
38. It should also not be overlooked that, once a potential reasonable adjustment has been identified by the claimant, the burden of proving that such an adjustment was not a reasonable one to make shifts to the defendants: see Project Management Institute v Latif [2007] IRLR 579 at para 53 in relation to the DDA and section 136 of the EA.
39. So where does this leave us? There is no finding as to what adjustment the Chief Constable made to deal with the detriment caused to deaf persons as a class by the PPP to her officers communicating in spoken English during their searches. The judge merely held that no adjustment was required. But that was because he found as a fact that effective communication was achieved with Mr Finnigan as an individual during the two searches where he made this possible. On the material before us, it is not possible to decide either what adjustment (if any) was made or what adjustment ought reasonably to have been made to the PPP to deaf persons as a class. I am satisfied that the judge's decision that there was no breach of the duty to make reasonable adjustments cannot be upheld. I reach this conclusion without reference to the incidence of the burden of proof. But I should add that I see much force in the submission of Ms Casserley that the Chief Constable also fails on the burden of proof point: see para 38 above.
40. I should say a word about the judge's concern as to the practical implications of a requirement to have a BSL interpreter in attendance or on standby whenever there is to be a search of the premises of a person known or believed to be deaf. As Sedley LJ said at para 13 in Roads, the policy of the legislation is to place disabled persons in a position as close as reasonably possible to that of the public at large. There was no evidence as to the numbers of searches in Northumbria of premises occupied by persons known or believed to be deaf and I do not find the practical difficulties to which the judge referred at para 42 of his judgment particularly convincing. Even if interpreters cannot enter the premises until they have been checked and secured, they can still take part in the process of communication once these steps have been taken. In any event, as I have said, BSL interpreters may not be the only reasonable solution to the problem.
41. As I shall explain in the concluding part of this judgment, however, it does not follow from the fact that the judge erred on the issue of the duty to make reasonable adjustments that the appeal must be allowed.
42. Before turning to my decision on this appeal, I wish to emphasise that, in cases of this type, it is of critical importance that evidence be adduced to the court by the relevant public authority as to (i) the content of its PPP (now "provision, criterion or practice") and (ii) what adjustments it has made to alleviate the detrimental effects of the PPP on disabled persons.

Decision on this appeal

43. For the reasons I have given, the PPP was conducting searches in spoken English and the judge erred in his approach to the question whether there had been a failure to make reasonable adjustments during the searches of Mr Finnigan's premises. I would nevertheless dismiss this appeal. It is common ground that a six-step approach is required to be adopted to section 21 of the DDA as endorsed by Blake J in R (Lunt) v Liverpool City Council [2009] EWHC 2366 (Admin) at para 53 and that, mutatis mutandis, the same approach should be adopted to section 20 of the EA. Lunt was a case about the receipt by a disabled person of benefits. But the six-step approach also applies, mutatis mutandis, where the issue concerns a disabled person being subjected to detriment by the carrying out of a public function by a public authority. The fourth step identified in Lunt is to ask whether the public authority has failed to comply with its duty to change the PPP so that it no longer makes it impossible or unreasonably difficult for a disabled person to receive the benefit. The fifth step is: "if so, is the effect of that failure such as to make it unreasonably difficult for [the disabled person] to access such benefit?"
44. In the present case, the judge found as a fact that the absence of a BSL interpreter did not have any effect on the ability of Mr Finnigan and the officers to communicate with each other effectively on the two occasions when he was not behaving obstructively.
45. Ms Casserley draws attention to the fact that Mr Finnigan stated in evidence: "If I use a BSL interpreter then I've got more confidence in my communication, otherwise I wouldn't understand what's going on and I wouldn't feel very confident". The judge heard Mr Finnigan give evidence. He formed an unfavourable view of him. The fact that Mr Finnigan had been able to sell cannabis to undercover officers without the assistance of an interpreter could have done little to enhance his case that the absence of a BSL interpreter caused him to suffer detriment in his ability to communicate with the officers during the searches. The judge was entitled to find as a matter of fact that he had been able to achieve effective communication. In other words, the Chief Constable's failure to adjust her PPP caused no detriment to Mr Finnigan. This finding is fatal to his claim.
46. I would, therefore, dismiss this appeal.

Lord Justice Jackson:

47. I agree that this appeal should be dismissed for the reasons stated by the Master of the Rolls.

Lady Justice Gloster:

48. I agree.