Finnigan v Chief Constable of Northumbria Police

Factual and Procedural Background

These proceedings arise from allegations by the Plaintiff that the Chief Constable of Company A is liable for breaches of section 21 of the Disability Discrimination Act 1995 ("DDA") and section 20 of the Equality Act 2010 ("EA") due to lawful searches conducted by the police at the Plaintiff's home under the Misuse of Drugs Act 1971. The Plaintiff is profoundly deaf. The searches occurred on three occasions: 31 March 2010, 8 February 2011, and 9 March 2011. It was common ground that the search warrants were lawfully executed each time. The Plaintiff claimed unlawful discrimination because the searches were conducted without a British Sign Language ("BSL") interpreter, despite the police's knowledge of his profound deafness. The initial claim was dismissed by Judge Walton, and the Plaintiff appealed with permission granted by Judge Toulson LJ.

Legal Issues Presented

1. Whether the Chief Constable breached section 21 of the DDA and section 20 of the EA by failing to provide reasonable adjustments during the execution of search warrants on the Plaintiff's premises.
2. What constitutes the relevant "practice, policy or procedure" ("PPP") of the Chief Constable in relation to communication during police searches of premises.
3. Whether the Chief Constable fulfilled the anticipatory duty to make reasonable adjustments to the PPP to accommodate deaf persons as a class.
4. Whether the absence of a BSL interpreter during the searches caused detriment to the Plaintiff.

Arguments of the Parties

Appellant's Arguments

• The Plaintiff argued that the Chief Constable's PPP was to communicate with suspected offenders using spoken English during searches, which was discriminatory against deaf persons.
• The Plaintiff submitted that the PPP made it unreasonably adverse for deaf persons to undergo police searches without reasonable adjustments such as the attendance or standby availability of a BSL interpreter.
• The Plaintiff contended that the Chief Constable failed to take reasonable steps to adjust the PPP to accommodate deaf persons as a class, not merely the Plaintiff individually.
• The Plaintiff criticized the judge’s failure to properly identify the PPP and to apply the anticipatory nature of the duty to make reasonable adjustments.

Respondent's Arguments

• The Chief Constable contended that the PPP was the requirement to attempt to establish effective communication, which was achieved on the facts.
• It was argued that the police could communicate effectively with the Plaintiff through lip-reading, writing, gestures, and assistance from the Plaintiff’s wife without the need for a BSL interpreter.
• The Chief Constable submitted that it would be impractical and costly to have BSL interpreters attend or be on standby for every search involving a deaf person.
• The respondent relied on the factual findings that effective communication was achieved during the searches, and thus no detriment was caused by the absence of an interpreter.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Roads v Central Trains Limited [2004] EWCA Civ 1541	Anticipatory nature of the duty to make reasonable adjustments to accommodate disabled persons as a class.	The court applied the principle that public authorities must consider features impeding disabled persons generally, not just individual needs, in assessing reasonable adjustments.
Project Management Institute v Latif [2007] IRLR 579	Shifting burden of proof regarding reasonableness of adjustments under the DDA and EA.	The court noted that once a claimant identifies a potential reasonable adjustment, the burden shifts to the defendant to prove it was not reasonable.
R (Lunt) v Liverpool City Council [2009] EWHC 2366 (Admin)	Six-step approach to assessing breach of duty under section 21 of the DDA and section 20 of the EA.	The court endorsed applying this approach mutatis mutandis in cases involving public functions and detriment to disabled persons.

Court's Reasoning and Analysis

The court analysed the factual evidence and the relevant statutory framework under the DDA and EA. It emphasized the statutory duty of public authorities to make reasonable adjustments to their PPPs to prevent unreasonably adverse effects on disabled persons. The court clarified that the PPP represents the standard practice or procedure before adjustments are made and excludes the adjustments themselves.

The court found that the judge below erred in defining the PPP narrowly as the policy of attempting to achieve effective communication, thereby conflating the policy aim with the discriminatory means of communication (i.e., reliance on spoken English without interpreters). The court held that the relevant PPP was the practice of communicating in spoken English during police searches.

The court reiterated the anticipatory nature of the duty to make reasonable adjustments, requiring public authorities to consider the needs of disabled persons as a class in advance, not merely on an individual or ad hoc basis. The judge below failed to inquire into what anticipatory adjustments, if any, the Chief Constable had made to the PPP to accommodate deaf persons generally.

Despite these errors, the court accepted the factual findings that effective communication was achieved with the Plaintiff during the searches (except when the Plaintiff was deliberately uncooperative), and thus no detriment resulted from the absence of a BSL interpreter. The court acknowledged practical policing concerns but noted that alternative reasonable adjustments might exist beyond the presence of BSL interpreters.

The court also stressed the importance of public authorities adducing clear evidence regarding the content of their PPPs and any anticipatory adjustments made to accommodate disabled persons.

Holding and Implications

The court DISMISSED THE APPEAL.

The direct effect of this decision is that the Plaintiff's claim of unlawful discrimination was rejected because the Chief Constable's failure to provide a BSL interpreter did not cause detriment to the Plaintiff under the circumstances. The court clarified important legal principles regarding the identification of PPPs and the anticipatory duty to make reasonable adjustments but did not establish new precedent beyond applying existing principles to the facts. The judgment underscores the need for public authorities to provide evidence of their PPPs and anticipatory adjustments in discrimination claims.