Court of Appeal affirms decision in ZH v Commissioner of the Police for the Metropolis

Posted by Malcolm Johnson on

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The Claimant was a severely autistic and epileptic nineteen year old, who suffered from learning difficulties and could not communication by speech. He brought a claim for assault and battery, false imprisonment, unlawful disability discrimination under the Disability Discrimination Act 1995 (DDA) and breaches of Articles 3, 5 and/or 8 under the Human Rights Act 1998 and for declaratory relief.

In September 2008, the Claimant was at a swimming baths, with a group although they were not swimming. He became fixated by the water and could not be encouraged to move away. His teacher went back to his nearby school to fetch help. His carer told pool staff not to touch him, otherwise he would jump in. The manager at the pool decided to call the police, telling them that the Claimant was aggressive.

When the police arrived, the carer explained that the Claimant was disabled, but they approached him and he jumped into the water. Fortunately it was only at chest height. The lifeguards then entered the water and grabbed the Claimant. He was then moved into the shallow end of the pool and lifted out, struggling. Leg restraints and handcuffs were applied and the Claimant was put into a police van. These were later removed.The Claimant suffered psychological trauma as a result of  the experience, and exacerbation of his epileptic seizures.

At first instance (ZH v Commissioner of the Police for the Metropolis [2012] EWHC 604 (Admin)) the Claimant won his case. The judge, Sir Robert Nelson said that the claims for assault and battery were subject to the Mental Capacity Act 2005. Once force was used upon the Claimant, or he was imprisoned, the burden was on the Defendant to establish a lawful basis for the use of such force or imprisonment. To achieve this, the Defendant had to demonstrate that the officers complied with the relevant provisions of the Mental Capacity Act 2005.

The judge was satisfied that the Defence had failed to satisfy the preconditions under the Mental Capacity Act 2005. He considered each potential trespass to the person in stages, and said that the defence on each one was not made out. There was also a false imprisonment.In relation to the Disability Discrimination Act 1995, there had been a breach and the police had failed to established the defence of justification.There had also been a breach of Article 3, Article 5 and Article 8 of the European Convention on Human Rights. Total damages would be £28,250.

Now in the Court of Appeal Commissioner of the Police for the Metropolis v ZH ([2013] EWCA Civ 69) the decision of the trial judge has been upheld.

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Malcolm is an Senior Associate in our London office, with nearly twenty years' experience.

Malcolm Johnson
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