In ZH v Commissioner of Police for the Metropolis [2013] EWCA Civ 69 the Court of Appeal found that the police had acted unlawfully, violated an autistic boy’s human rights and discriminated against him by not having proper regard to his condition.
This judgment concerns an appeal by the Metropolitan Police Service against liability for assault and battery, false imprisonment and breaches of the Human Rights Act 1998 and the Disability Discrimination Act 1995 (DDA). The human rights claims were based on articles 3, 5 and 8 of the European Convention on Human Rights: inhuman or degrading treatment, the right to liberty and the right to privacy respectively. The DDA claim alleged a failure to make reasonable adjustments to the MPS’s usual practice, policy and procedures for control and restraint.
ZH was a young man with autism and epilepsy. He was taken by his carers on a familiarisation visit to a public swimming pool. He became fixated by the water and unresponsive to instruction. The pool manager called the police and reported that ZH was becoming aggressive. The trial judge found after witness evidence that this was an overstatement: ZH was not behaving aggressively; indeed he was relatively still and fixated. Two officers attended and when they arrived there can be no doubt that they faced an unusual, challenging scenario. In good faith, the officers sought to take control of the situation and to engage with ZH. But their efforts were, unfortunately, ill-informed and backfired. Reliance by the MPS on the ‘best interests’ defence under the Mental Capacity Act 2005 failed.
The facts are outlined in detail in the judgment, and canvassed in an article by myself and Bridget Dolan for Police Professional that will appear on this Blog in due course. But for readers in a hurry, it pays to heed the concluding remarks of the Master of the Rolls at paragraph [90], affirming the decision of the High Court against the MPS on every ground:
“…I reject [Counsel for the MPS’s] submission that this decision unreasonably interferes with the operational discretion of the police or that it makes practical policing impossible. I accept that operational discretion is important to the police. This was recognised by the [trial judge]. It has been recognised by the [European Court of Human Rights]. And I have kept it well in mind in writing this judgment. But operational discretion is not sacrosanct. It cannot be invoked by the police in order to give them immunity from liability for everything that they do. I doubt whether [Counsel for the MPS] intended to go so far as to suggest that it can. Each case must be carefully considered on its facts. I do not believe that anything said by the judge or by me in this judgment should make it impossible to carry out policing responsibly. One is bound to have some sympathy for the police in this case. They were intent on securing the best interests of everyone, not least ZH. But as the judge said, they behaved as if they were faced with an emergency when there was no emergency; and [the two Police Constables involved] did not in fact believe that there was an emergency. Had they consulted the carers, the likelihood is that ZH would not have jumped into the pool in the first place. The police should also have consulted the carers before lifting ZH from the pool. Had they done that, it is likely that with their help, the need to restrain him would have been avoided. Finally and most seriously of all, nothing could justify the manner in which they restrained ZH.”
Commentary
While courts around the country are subjecting police decision-making to increasingly rigorous scrutiny, this case need not be read as a landmark incursion into operational discretion. The decision turned on the finding of fact that the Police Constables who were called to the scene were not faced with an ‘emergency’.
What escalated the incident by the poolside was when one officer made a friendly approach and gently touched ZH to get his attention. Part of ZH’s autistic condition was an aversion to being touched. He reacted very badly and jumped into the pool, from which point the situation escalated further. One of ZH’s carers was by the pool, and more carers on the way. ZH was clearly, the trial judge found, labouring under some disability which would have been apparent to those present. The officers could and should have approached the carer for information as to how best to handle him. Consulting, where practical and appropriate, carers or family members of a vulnerable person is the bare minimum for reliance on the ‘best interests’ defence. In the present case, armed with information from the carer about ZH’s condition and needs, the officers could then have taken a more careful approach, in particular one that did not involve touching ZH.
The way the police engaged ZH from the point he jumped into the pool was also not reasonably adjusted to his disability and, again, both the High Court and Court of Appeal made clear that nothing could justify the way ZH was detained once he was removed from the pool.
These may seem very easy assessments in hindsight, from the calm and forensic vantage of the Court (and, to a less forensic extent, this Blog). But the key point here is that when police engage disabled and vulnerable members of the public, adjustments have to be made: to the way an incident is appraised (including whether police involvement is even necessary), the way the subject of the response is spoken to or otherwise engaged, and to usual police strategies of control and restraint. The police are of course not expected to understand all the nuances of mental illnesses. Judges know this and liability is not strict: allowance will be made for operational discretion in emergency or fast-moving circumstances.
But again, in this case, the trial judge found that there were ample opportunities, in terms of both time and information, available to the officers at the scene to appraise and adjust. Those opportunities were missed and that had a seriously adverse impact on ZH. The Court of Appeal’s judgment serves as stark reminder of the need for front line officers to adapt conventional policing strategies when they are called to deal with cases involving vulnerable people.