disability discrimination newsletter disability hate crime and … · 2019-07-26 · disability...

Disability Discrimination Newsletter

Disability Hate Crime and Suing the State

By Andrew Hogan

2 / 9

Personal Injury Special Interest Group

Introduction

1. In October 2010 the Equality and Human Rights Commission published the report“Hidden in plain sight -

inquiry into disability related harassment”. This documentmakes shocking reading, not only in respect of the

extent to which disabled peoplecan be subject to harassment, crime, assault, violence and murder but also

due tothe scale of neglect on the part of those agents of the State responsible forsafeguarding people who find

themselves in a vulnerable situation.

2. The purpose of this paper is to consider both the findings of “Hidden in plain sight”

and also to consider to what extent the Human Rights Act 1998 gives disabled

victims of hate crime scope for redress against the police or other State agencies

which fail to protect them and they suffer personal injury or death by reason of state

neglect.

Hidden in plain sight

3. For the purposes of the inquiry, the Commission defined disability related harassment as “unwanted

exploitative or abusive conduct against disabled people which has the purpose or effect of either violating the

dignity, safety, security or autonomy of the person experiencing it or creating an intimidating hostile degrading

or offensive environment.”

4. The Commission set its terms of reference to investigate the causes of disability related harassment and the

actions of public authorities and public transport operators to prevent and eliminate it.

5. The inquiry covered England, Scotland and Wales and harassment carried out by individuals or groups of

people including strangers, neighbours, acquaintances, friends, family relatives and partners taking place in

public places such as streets, parks, schools and leisure facilities or in private, such as the home.

6. The report noted that according to the Office for Disability Issues (part of the Department for Work and

Pensions) there are 10.1 million adults in Great Britain who are disabled. The percentage of adults in Britain who

are disabled is about 21%, including the number of people with longstanding illness, disability or infirmity and

who have significant difficulty with day to day activities.

7. The report further noted that as part of the legal framework the Human Rights Act 1998 makes the rights and

freedoms guaranteed under the European Convention on Human Rights enforceable in British Courts.

8. As a result, individuals can take human rights’ cases to domestic courts rather than

3 / 9


having to go through the European Court of Human Rights. All public authorities are obliged to ensure that

everything they do is compatible with European Convention rights subject to any statutory requirement to the

contrary.

9. In particular it was noted that all public authorities such as courts, police, councils, hospitals, publicly funded

schools and other bodies carrying out public functions have to comply with the Convention which includes the

right to life, the right to respect for private and family life, freedom from torture and inhuman or degrading

treatment or punishment.

10. It further noted that in its consideration of two British cases, Z and Others .v. The United Kingdom (No.

29392/95) Judgment 10 of May 2001 at paragraph 73 and 74 and A .v. The United Kingdom Application No.

25599/94 Judgment of the 23rd September 1998 at paragraph 22 the European Court of Human Rights

confirmed that the status obliged to take measures to protect individuals from ill-treatment and to take

reasonable steps to prevent ill-treatment of which the authorities had or ought to have had knowledge.

11. The report also noted that in England and Wales two policy frameworks “No Secrets” and “In Safe Hands” are

the policy frameworks for adult protection. Launched in 2000, the two frameworks were developed in parallel

and contain broadly similar provisions based around the protection of vulnerable adults.

12. In England and Wales, local councils working with other agencies have a responsibility to investigate and

take action to prevent abuse. Both frameworks are guidance rather than legislative requirements. The report

noted that each has been recently reviewed and changes might be anticipated and the situation contrasted with

Scotland where safeguarding was put on a statutory footing by the Adult Support and Protection (Scotland) Act

2007.

13. The report considered an extensive body of evidence and in Part 2 of the report considered in detail ten

particular cases of individual disabled people who had been killed as a result of the escalation of disability

related harassment, often over a considerable or extended period of time and where, in many cases, it could

be seen or shown that there were failings of State Agencies either in the safeguarding of those individuals or in

the prosecution, conviction or sentencing of the individuals who were culpable for the murder of the disabled

person. As the report noted on page 21:

As part of this inquiry we examined 10 very serious cases in which disabled people have died or been seriously injured.

These cases show beyond doubt that the experiences of Fiona Pilkington and her children were not a one-off. In many

other locations and circumstances, the appalling abuse of disabled people has been greeted with disbelief, ignored or

mishandled by the authorities, with tragic consequences.

14. The report noted a series of failings which can be described as follows:

4 / 9


• Public authorities were often aware of earlier less serious incidents but had taken little action to bring

harassment to an end. In some cases, no effect of action was taken to protect the disabled person even when

public authorities were aware of allegations of very serious assaults. This left the disabled person at risk of

further harm.

• Social isolation is a factor in many of the cases we reviewed. The harassment often took place in the context of

exploitative relationships.

• Left unmanaged, non criminal behaviour and petty crime has the potential to escalate into more extreme

behaviour. Several of the deaths in this chapter were proceeded by relentless non criminal and minor criminal

behaviour, which gradually increased in frequency and intensity.

• Public authorities sometimes focussed on the victim’s behaviour and suggested uncalled for restrictions for

their lives to avoid harassment rather than dealing with the perpetrators.

• The failure of public agencies to share intelligence, coordinate the responses and treat harassment as a

priority meant that opportunities to bring harassment to an end were missed. In a number of cases, the violence

subsequently escalated resulting in serious harm or death.

• Disability was rarely considered as a possible motivating factor in crime and antisocial behaviour. As a result,

the incidents are given low priority and appropriate hate incident policy and legislative frameworks are not

applied.

• Extreme violence was a frequent feature in the murders of disabled people, often accompanied by degrading

treatment and torture. Most of the murders that we investigated were not prosecuted as disability hate crimes

even though this type of dehumanising treatment appears to be more common in the murders of disabled

people than in other murders.

• These cases are obviously the extreme examples of what can happen when disability hate crime results in

murder. But much harassment takes place at a much lower level and the scope of the enquiry also included, for

example, behaviour what could be considered to be the other end of the spectrum.

15. In particular it can be noted that even something as mundane as catching the bus can be an opportunity for

harassment to take place and the report noted at page 85:

5 / 9


Seating reserved for disabled people and wheelchair spaces on public transport were reported to be a major cause

of harassment, especially when designed to be shared with groups such as pregnant women or people with young

children. The main cause of the problem was perceived by respondents to be the competition for the relatively small

number of places.

16. The report also noted on page 85:

One common theme that was reported by people who experienced harassment on public transport was that the

operator’s employees, especially bus drivers, did little to prevent the harassment from occurring or were even

the perpetrators of it. Disabled people stopped using public transport as a result, which left them more isolated and

socially excluded.

17. Having considered the evidence on what is the problem and what needs to be done about it, the report

reached in part 5 various conclusions and in particular it should be noted what the recommendations were.

In respect of the police the following were recommended as part of a move to improve measures to combat

disability related harassment.

• Police forces should develop an in-depth understanding of the characteristics and motivations of perpetrators,

design local prevention strategies accordingly and evidence their effectiveness.

• Police forces need to review their no criming and motiveless procedures to give warning triggers when the

victim is disabled, to ensure they fully capture the true incidence of harassment.

• The police must always take a prompt lead in investigating all repeat cases of disability-related harassment

that come to their attention and should not use responses such as safeguarding as a substitute. When doing so,

they should be able to identify earlier interventions, including notification of pre-criminal incidents. Police call

response priorities should be based on this data.

• Where the police identify suspected repeat victimisation or a suspected repeat disability-related harassment

perpetrator, the investigation should automatically receive a higher-priority status for resolution.

• A named officer should provide victims and witnesses with acknowledgement of their incident in an accessible

format, including incident reference numbers, contact details and advice on both what to do if further incidents

occur and accessible support services available. The named officer should also provide regular feedback and

progress updates.

• All incidents and crimes should be investigated for potential aggravated offences where disability may be a

factor, both at the beginning of a report and throughout the case. This will require officers and prosecutors

to develop intelligence around perpetrator motivation, the personal characteristics of the victims and the

6 / 9


situational vulnerability and assess likelihood of disabilityrelated harassment being either primary motivation or

secondary motivation and act accordingly.

• The seriousness of the offence, rather than the capacity of the victim (and especially any concerns about their

potential reliability as a witness), should form the basis for any police investigation.

• The police should identify where special measures may be required as soon as possible in any investigation.

They should also ensure that prosecutors are made aware of the need for such equalising measures in any

court proceedings, and ensure they are notified to the Courts at the earliest possible opportunity. They should

also ensure that, where required, responsible adult provisions are both understood and fully implemented.

18. In respect of Local Government the following were recommended at page 177 for Local Authorities.

• The local authority should play a lead role in driving local partnerships to deliver on preventing and tackling

disability related harassment.

• They should invest in awareness campaigns aimed at encouraging victims of disability related harassment to

come forward.

• They should ensure that good quality accessible independent advocacy is available to disabled people enabling

them to get the support that they need.

Tackling disability hate crime after “Hidden in Plain Sight”

19. In a sense none of this is new. It should also be noted that since the passage of the Equality Act 2010 and the

coming into force of the public sector equality duty in April 2011 public bodies are required to have due regard

amongst other things to the need to eliminate unlawful discrimination, harassment, victimisation and any other

conduct prohibited by the Act.

20. This is a strong and specific duty which should find reflection in the policies formulated and resources

allocated by all public bodies such as the police and local authorities when considering the need to safeguard

vulnerable disabled people.

21. In the interim however it seems likely that more cases of the kind noted in “Hidden in plain sight” will come

forward due to failings either by the police or other public authorities.

22. Against that backdrop what is the remedy that can be sought to force the state to protect its disabled

7 / 9


citizens?

Utilising the Human Rights Act 1998

23. Any claim against a State agency, be it the police or others, must be brought in the civil courts under Sections

6 and 7 of the Human Rights Act 1998 in reliance on Articles 2, 3 and 8 of the European Convention on Human

Rights noted above.

24. Already a chain of case law is building on those principles derived from the European Court of Human Rights

but applied in the domestic courts which is instructive as to the approach that a Judge is likely to take.

25. The first of the cases which bears further examination is that of the Chief Constable of the Hertfordshire

Police .v. Vancolle and Smith .v. Chief Constable of Sussex Police (2008) UKHL50 the question posed by Lord

Bingham in the opening paragraph of the case was this:

In these two appeals, heard together there is a common underlying problem: if the police are alerted to a threat that

D may kill or inflict violence on V, and the police take no action to prevent that occurrence, and D does kill or inflict

violence on V, may V or his relatives obtain civil redress against the police, and if so, how and in what circumstances?

26. The principle to be applied was derived from the case of Osman .v. The United Kingdom (1998) 29 EHRR 245

paragraph 115 where Lord Bingham noted that the State’s duty includes but extends beyond its primary duty to

secure the right to life by putting in place effective criminal law provisions to deter the commission of offences

against the person backed up by law enforcement machinery for the prevention, suppression and sanctioning of

breaches of such provisions.

27. Article 2 may also in certain well defined circumstances imply a positive obligation on national authorities to

take preventative measures to protect an individual whose life is at risk from the criminal acts of another. The

scope of this last obligation was the subject of dispute in Osman and lay in the heart of the appeal before the

House of Lords.

28. In the Osman case at paragraph 116 the European Court of Human Rights said this:

It must be established to the court’s satisfaction that the authorities knew or ought to have known at the time of the

existence of a real and immediate risk to the life of an identified individual or individuals from the criminal acts of a

third party and that they failed to take measures within the scope of their powers which, judged reasonably, might

have been expected to avoid that risk.

29. Thus it can be seen that if that test is satisfied then a claim will lie both for declaratory relief and also for

damages under the Human Rights Act 1998. However in the same case the House of Lords rejected the notion

8 / 9


that there should be an extension of the common law duty of care in negligence and in particular the case of Hill

.v. Chief Constable of West Yorkshire (1989) AC53 and its core principle that there is no tortious liability on the

part of the police for failing to investigate the crime or apprehend a particular offender was maintained.

30. It is also material to note what was said about the test of causation which might apply in a case of this nature

in the speech of Lord Brown of Eaton under Heywood at paragraph 138 while he noted this.

… where civil actions are designed essentially to compensate claimants for their losses, convention claims intended

rather to uphold minimum human right standards and to vindicate those rights. That is why time limits are markedly

shorter - the one year (albeit extendible) limitation period under section 7(5) of the Human Rights Act comparable to

the one year permitted for defamation claims intended analogously, to vindicate a claimant’s reputation. It is also

why section 8(3) of the Act provides that no damages are to be awarded unless necessary for just satisfaction. It is

also seems to me to explain why a looser approach to causation is adopted under the Convention than in English tort

law. Whereas the latter requires the Claimant to establish on the balance of probabilities that, but for the Defendant’s

negligence he would not have suffered his claimed loss - and so establish under Lord Bingham’s proposed liability

principle that appropriate police action would probably have kept the victim safe - under the Convention it appears

sufficient generally to establish merely that he lost a substantial chance of this.

31. The scope of Article 2 was also further considered in the case of Savage .v. South Essex Partnership NHS

Foundation Trust (2008) UKHL 74 where the House of Lords had to consider whether a patient in a mental

hospital who absconded and killed herself by throwing herself under a train gave rise to civil liability on the part

of the NHS Trust concerned for failing to take appropriate steps to safeguard her life.

32. The issue that went to the House of Lords was the question as to how Article 2 was to be applied in a context

not where the deceased had been a prisoner in custody nor where there had been demonstrable failings on the

part of the police but whether and to what extent the Osman principle had application in a case of this nature.

In this respect Baroness Hale noted at paragraph 100 the following:

The trigger is a real and immediate risk to life about which the authorities knew or ought to have known at the time.

That has rarely been shown. (See for example Younger v United Kingdom (2003) 33 EHRR CD252 where it was not

shown that the police should have known that their prisoner was a suicide risk). If the duty is triggered, it is, as it was

put in Keenan 33 EHRR 913 para 92, to do “all that reasonably could have been expected of them to prevent that risk”.

In judging what can reasonably be expected, the Court has shown itself aware of the need to take account of competing

values in the Convention, in particular the liberty and autonomy rights protected by articles 5 and 8. The steps taken

must be proportionate. If this is so in prison, it must be even more so in hospital, where the objectives of detention are

therapeutic and protective rather than penal. Developing a patient’s capacity to make sensible choices for herself, and

providing her with as good a quality of life as possible, are important components in protecting her mental health.

Keeping her absolutely safe from physical harm, by secluding or restraining her, or even by keeping her on a locked

9 / 9


ward, may do more harm to her mental health. In judging what can reasonably be expected, the Court has also taken

into account the problem of resources.

33. When the case was remitted to the High Court for trial, reported at Savage .v. South Essex Partnership NHS

Foundation Trust (2010) EWHC 865, the High Court Judge, Mr. Justice Mackay, found for the family of the dead

woman and that there had been a breach of Article 2 of the European Convention on Human Rights.

34. The High Court Judge found that the daughter of the deceased was a victim within the meaning of Article 34

of the European Convention on Human Rights and Section 7 of the Human Rights Act 1998 and went on to make

not only a declaration but also an award of damages in respect of just satisfaction of £10,000.

Conclusions

35. The spectre of disability hate crime is not going to go away. Undoubtedly there will be further cases which

indicate failings in public authorities who are subject to the Article 2 obligation noted above.

36. In extreme cases where death or personal injury results as a result due in part at least to the failings of state

agencies as well as, of course, the actions of the perpetrators there is now a reasonable prospect of obtaining

relief in the civil courts, both declarations and damages, in effect compelling public agencies to acknowledge

their responsibilities.

Andrew Hogan

February 2012

For further information on Ropewalk Chambers generally please contact the Senior Clerk, Tony Hill, on (0115)

983 8000.

Disclaimer:

This article is intended as a general overview and discussion of the subjects raised herein. It is not intended, and should not be used, as

a substitute for taking legal advice in any specific situation. Neither Ropewalk Chambers nor the author accept any responsibility for any

actions taken or not taken on the basis of this article.

disability discrimination newsletter disability hate crime and … · 2019-07-26 · disability...

Documents