ZH v The Commissioner of Police for the Metropolis  EWHC 604 (QB) (14 March 2012) Summary
The England and Wales High Court has held that police who applied excessive force to a 16 year old autistic boy infringed several laws, including the European Convention on Human Rights. The Court found that the treatment of the boy by the police amounted to assault and battery, false imprisonment, unlawful disability discrimination, inhuman or degrading treatment, deprivation of liberty, and interference with private life.
ZH, an autistic, epileptic boy, was a student at a specialist school in London which took a number of students, including ZH, to the local swimming pool for a “familiarisation visit”. It was not intended that the students would actually enter the water.
At the pool, ZH became fixated upon the water, moving within centimetres of the deep end. His carer from the school, as well as the pool’s lifeguards, tried to coax him away without success. Because he had an aversion to touch, they were reluctant to use force to move him away.
Eventually, the police were called, and upon their arrival two police officers ignored the advice of ZH’s carer and approached him. One officer touched him to see how he would respond, and ZH panicked and jumped into the pool fully clothed.
The police directed the lifeguards to move him to the shallow end of the pool, and then out of the water. ZH resisted violently, and it ultimately took five police officers to lift him out of the water. Twice, he slipped and fell on his back. At one point he tried to bite one of the officers. His carer tried to comfort him, but was ordered by the police to move away. When ZH would not calm down, he was placed in handcuffs and leg restraints in the back of the police van. Shortly afterwards, he was examined by ambulance officers and released.
ZH suffered severe psychological trauma from this incident, and claimed damages for assault and battery, false imprisonment, unlawful disability discrimination and breaches of the European Convention (for which damages are available under the Human Rights Act 1998 (UK)).
The Court decided each claim in favour of ZH, and awarded damages of £28,500. The Court found that the actions of the police were “over-hasty and ill-informed” and amounted to assault, battery and false imprisonment. The Mental Capacity Act 2005 (UK) provides that any act or decision made for a person who lacks capacity must be made in that person’s best interest, after taking into account the views of that person’s carers and considering whether the person’s interests can be equally protected in a manner that is less intrusive on their rights and freedom. The Court also found that the police had breached the Disability Discrimination Act 1995 (UK) by failing to take account of ZH’s condition when deciding to follow standard procedure and place him in restraints.
ZH’s human rights claims were brought under section 6 of the Human Rights Act, which states that it is an offence for a public authority to act in a way that is incompatible with any of the European Convention rights. ZH alleged the police had infringed three such rights:
Article 3: No person shall be subjected to torture or to inhuman or degrading treatment or punishment
The European Court of Human Rights held in Mayeka v Belgium that for treatment to be inhuman or degrading, it must exceed a “minimum level of severity” having regard to all of the circumstances.
The Court considered that the amount of time for which ZH was in restraints, the degree of psychological trauma suffered, and his age, health and level of vulnerability meant that this “minimum level of severity” had been exceeded. As a result, ZH’s treatment by the police constituted inhuman or degrading treatment.
The Court noted that this finding was justified even though there was no intention on the part of the police to humiliate ZH.
Article 5: Everyone has the right to liberty and security of person
Article 5(1) of the European Convention states that no person shall be deprived of liberty, except in a number of specific cases. The Court noted that “deprivation of liberty” is a broad concept that is not limited to incarceration, but requires more than a mere restriction of movement. The difference between the two is a matter of intensity, not substance, and the Court was satisfied that the circumstances in this case amounted to an unlawful deprivation of liberty.
Counsel for the police argued that the court should take the purpose of a deprivation of liberty into account, which in this case was to protect ZH from harming himself and others. Counsel for ZH argued that because the text of article 5 made no reference to the purpose behind a depravation of liberty, it was not a factor for the court to consider.
The Court found that although purpose is not specifically mentioned in article 5, it is clear from case law that courts must consider all relevant circumstances, including whether there is a need to place a person in restraints for their own protection. Nevertheless, the actions of the police in this case, while well-intentioned, still amounted to an unlawful deprivation of liberty. The conduct “involved the application of forcible restraint for a significant period of time for an autistic epileptic young man, when such restraint was in the circumstances hasty, ill-informed and damaging”.
Article 8: Everyone has the right to respect for his private and family life; his home and his correspondence
Article 8(2) of the European Convention provides that public authorities may only interfere with this right if it is “in accordance with the law” and “necessary in a democratic society in the interests of ... public safety ... for the protection of health ... or for the protection of the rights and freedoms of others”.
Because, as outlined above, the Court found the actions of the police in this case were unlawful on the other grounds brought by ZH, they were not “in accordance with the law” for the purposes of article 8(2). Further, the Court found they went beyond what was necessary in the circumstances, and that article 8 was also breached.
Despite these contraventions, the Court did not award any damages in respect of the human rights claims. Section 8(3) of the Human Rights Act states that damages should not be awarded unless the award is necessary to afford just satisfaction to the plaintiff, taking account any other relief or remedy granted by the court. In this case, the Court determined that ZH was adequately compensated by the damages awarded in respect of the other claims.
Relevance to the Victorian Charter
This decision highlights the importance of human rights considerations for public authorities, especially police officers, when dealing with people with disabilities.
Given the European Convention rights in question in this case have equivalent provisions in the Victorian Charter, police should take care not to apply excessive or unnecessary force or restraint to persons with disability. Courts will consider all relevant factors, including the condition of the plaintiff, when determining whether any human rights have been breached.
However, unlike the UK Human Rights Act, a claim cannot be brought in Victoria for the breach of a Charter right alone, and damages are not an available remedy for such breaches. As this case was brought in conjunction with other causes of action, it could be brought in Victoria under section 39(1), but the court could not consider awarding damages to compensate ZH for the breach of his human rights as it did in this case. Rather, his only available remedy under section 39(3) of the Charter would be a declaration that his rights were infringed.
The decision can be found online at http://www.bailii.org/ew/cases/EWHC/QB/2012/604.html
James Brownstein is a graduate at DLA Piper.