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ZH v The Commissioner of Police for the Metropolis

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Last updated 17th February, 2013.

An autistic boy had become “stuck” at the side of a swimming pool, and jumped into the water when approached by police. He ended up being restrained by the police, and put in the cage at the back of a police van. The Court of Appeal upheld a decision that the police had failed to make reasonable adjustments, in breach of disability discrimination legislation. Their treatment of him was also in breach of human rights law.

Court of Appeal, Feb 2013. Full judgement: bailii.org. (Also previous County Court judgment {judiciary.uk}).

A severely autistic and epileptic boy was on a school trip to a swimming pool. He could not communicate by speech and had an aversion to being touched. He stood at the edge of a swimming pool and would not move (autistic children can become “stuck”).

The pool staff called the police. After the boy was approached by the police, he jumped into the water. He was encouraged to the shallow end. The police physically pulled him out of the water, put on handcuffs and leg restraints, and put him in the cage at the back of a police van.

Held: There was a breach of the duty to make reasonable adjustments in relation to public functions, under the Disability Discrimination Act 1995. The police should have consulted the boy’s carers from the school (at least one carer was present the whole time), to inform themselves properly before taking any action which led to the application of force.

The police were also held liable for assault and false imprisonment, and for breaches of human rights. Amongst other things, the court held that there was inhuman or degrading treatment contrary to Article 3 of the European Convention of Human Rights.

The court awarded £28,250 in damages.

The Court of Appeal, upholding the decision of the County Court, rejected an argument that the County Court had failed to allow the police a reasonable degree of operational discretion. It accepted that operational discretion is important to the police. However, the County Court’s judgment did not remove the officers’ operational discretion, or impose an obligation on officers to speak to any carer present whatever the circumstances. These matters will always be fact-sensitive. In another situation, a court might find that officers genuinely and reasonably believed that they were faced with an emergency that gave them no time to consult. The Court of Appeal said:

90… Each case must be carefully considered on its facts. I do not believe that anything said by the [County Court] 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 PC Colley and PC McKelvie 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.


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