Trigger warning: Girl gets arrested, seemingly for being Autistic in a built up area.

So we have more news. https://www.dailymail.co.uk/news/article-12399911/Revealed-Mother-autistic-daughter-16-dragged-home-police-saying-female-officer-lesbian-like-nana-set-SUE-force.html

First hugely pleased to see the police are likely to get sued over this. Secondly we now know the domestic setting clause of section 5 does not apply. The police women was stood outside of the house when the alleged comments were made. The exemption for domestic activity only applies if both parties are inside a house. The logical conclusion then since the police are taking no further action is that they have determined that the comments themselves (by virtue of the context and content) were not actionable which is what I would expect and the question now arises as to why the police on the scene thought they were actionable.

In terms of the equality act there are likely to be 2 torts (civil offences). One relating to section 15 Discrimination arising from disability and one relating to sections 20-22 failiour to make reasonable adjustments.

First people will ask, isn't the police exempt as they were only enforcing the law? Well probably not, section 29(6-7) clearly states "A person must not, in the exercise of a public function that is not the provision of a service to the public or a section of the public, do anything that constitutes discrimination, harassment or victimisation. A duty to make reasonable adjustments applies to <...> a person who exercises a public function that is not the provision of a service to the public or a section of the public."

Now schedule 3: 3(1)(d) says "Section 29 does not apply to <...> anything done for the purpose of reaching, or in pursuance of, a decision not to commence or continue criminal proceedings." And if they have a defence under the equality act that is likely to be it. However this is unlikely to work. The EHRC in its statutory code of practice identifies arrest as a situation in which reasonable adjustments must be made. Which suggests 3(1)(d) is not construed so widely as to cover all action taking place in criminal investigations but maybe just the narrower issue of the process of deciding whether or not to bring charges. For example the police / CPS could probably not be sued for failing to take expert advice from an autism specialist on whether or not to bring charges.

So the question of whether to make an arrest and when and how is likely subject to the equality act.

So section 15 is as follows

1. A person (A) discriminates against a disabled person (B) if—
   1. A treats B unfavourably because of something arising in consequence of B's disability, and
   2. A cannot show that the treatment is a proportionate means of achieving a legitimate aim.
2. Subsection (1) does not apply if A shows that A did not know, and could not reasonably have been expected to know, that B had the disability.

In this case lets say the unfavourable action was the making of the arrest. We know subsection 2 does not apply we've seen the video evidence of them being told she was autistic. Does 1a apply? Well expert evidence will probably be called for but I think there is a clear argument that autism could cause someone not to realise that saying someone looked like a lesbian might be seen as insulting. The police might offer a defence that a neurotypical would also not have thought this offensive but if they do that they are likely to shoot themselves in the foot for a separate false imprisonment tort.

Assuming they assert and the court accepts that the statement could be reasonably interpreted as potentially offensive by most people, and assuming the court accepts that autism caused the girl to be unaware of this section 1a is satisfied.

Because of section 136 that says "If there are facts from which the court could decide, in the absence of any other explanation, that a person (A) contravened the provision concerned, the court must hold that the contravention occurred. ... But subsection (2) does not apply if A shows that A did not contravene the provision." In short once there is enough evidence for the plaintiff for the judge to decide the defendant did it, in the absence of their defence, the defendants now effectively has to prove their innocence with their defence."

What this usually means is once 1a is satisfied its upto the defence to come up with an excuse in section 1b. Case law (Akerman-Livingstone v Aster Communities ) indicates that the objective test has 4 components

1. was there a legitimate aim (enforcing the law is clearly legitimate)
2. was the aim logically connected to the action taken
3. was the action taken as minimal (in terms of being unfavourable to the disabled person) as possible
4. was the impact of the action on the disabled person outweighed by other benefits.

The police are likely to struggle with points 2 and 3. 2 because they didn't charge the disabled person and arguably should have known the statements weren't likely to rise to the level necessary for charges at the time. Especially in the context of the girl being autistic (because state of mind does have baring on a section 5 public order offence). Again on point 2 there is overlap with false imprisonment although the standards of proof are likely to be different. They will struggle with point 3 because there may have been other options open to them. There was no urgency to make the arrest. The principal physical evidence was on the body cam footage already acquired. The girl could have been arrested the day after after calming down, questioned under caution in her own home or asked to attend interview under caution voluntarily. At the very list the officers present could have waited until there was an officer with suitable training present to make the arrest.

This dovetails neatly into reasonable adjustments. There are plenty of reasonable adjustments that should have been made regarding the way she was arrested. section 20(2) says "The first requirement is a requirement, where a provision, criterion or practice of A's puts a disabled person at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, to take such steps as it is reasonable to have to take to avoid the disadvantage."

I think there is a clear argument that being manhandled in an arrest is more disadvantageous to an autistic person who finds physical contact with strangers distressing. Also deciding how physical force or restraint is or isn't used in an arrest is clearly a form of provision, criterion or practice. Section 20 is likely to apply. So what reasonable steps could they have taken? Again the lack of urgency will work against the police. They could have taken more time to calm her down. Found an adult who might be able to talk her into voluntarily going with the police with out restraint / force. They could have waited for a police officer with suitable training to be available to advise them how to make the arrest.

In this case the relevant mater is determined in schedule 2 2(4) "In relation to each requirement, the relevant matter is the provision of the service, or the exercise of the function, by A." In this case the function being making an arrest.

As mentioned the family will also likely bring a false imprisonment claim. Here the baseline is to prove the girl was imprisoned (which is trivial) and it is then for the police to justify the arrest. There only real defence to this is likely to be that it was a lawful arrest under the pace act section 24(2) "If a constable has reasonable grounds for suspecting that an offence has been committed, he may arrest without a warrant anyone whom he has reasonable grounds to suspect of being guilty of it." Is it reasonable to infer someone saying 'she's a lesbian like my nana' as an offence especially when you are told the person is autistic. If not the arrest is likely to be illegal in and of itself.

I'm looking forward to this case.

So we have more news. https://www.dailymail.co.uk/news/article-12399911/Revealed-Mother-autistic-daughter-16-dragged-home-police-saying-female-officer-lesbian-like-nana-set-SUE-force.html

First hugely pleased to see the police are likely to get sued over this. Secondly we now know the domestic setting clause of section 5 does not apply. The police women was stood outside of the house when the alleged comments were made. The exemption for domestic activity only applies if both parties are inside a house. The logical conclusion then since the police are taking no further action is that they have determined that the comments themselves (by virtue of the context and content) were not actionable which is what I would expect and the question now arises as to why the police on the scene thought they were actionable.

In terms of the equality act there are likely to be 2 torts (civil offences). One relating to section 15 Discrimination arising from disability and one relating to sections 20-22 failiour to make reasonable adjustments.

First people will ask, isn't the police exempt as they were only enforcing the law? Well probably not, section 29(6-7) clearly states "A person must not, in the exercise of a public function that is not the provision of a service to the public or a section of the public, do anything that constitutes discrimination, harassment or victimisation. A duty to make reasonable adjustments applies to <...> a person who exercises a public function that is not the provision of a service to the public or a section of the public."

Now schedule 3: 3(1)(d) says "Section 29 does not apply to <...> anything done for the purpose of reaching, or in pursuance of, a decision not to commence or continue criminal proceedings." And if they have a defence under the equality act that is likely to be it. However this is unlikely to work. The EHRC in its statutory code of practice identifies arrest as a situation in which reasonable adjustments must be made. Which suggests 3(1)(d) is not construed so widely as to cover all action taking place in criminal investigations but maybe just the narrower issue of the process of deciding whether or not to bring charges. For example the police / CPS could probably not be sued for failing to take expert advice from an autism specialist on whether or not to bring charges.

So the question of whether to make an arrest and when and how is likely subject to the equality act.

So section 15 is as follows

1. A person (A) discriminates against a disabled person (B) if—
   1. A treats B unfavourably because of something arising in consequence of B's disability, and
   2. A cannot show that the treatment is a proportionate means of achieving a legitimate aim.
2. Subsection (1) does not apply if A shows that A did not know, and could not reasonably have been expected to know, that B had the disability.

In this case lets say the unfavourable action was the making of the arrest. We know subsection 2 does not apply we've seen the video evidence of them being told she was autistic. Does 1a apply? Well expert evidence will probably be called for but I think there is a clear argument that autism could cause someone not to realise that saying someone looked like a lesbian might be seen as insulting. The police might offer a defence that a neurotypical would also not have thought this offensive but if they do that they are likely to shoot themselves in the foot for a separate false imprisonment tort.

Assuming they assert and the court accepts that the statement could be reasonably interpreted as potentially offensive by most people, and assuming the court accepts that autism caused the girl to be unaware of this section 1a is satisfied.

Because of section 136 that says "If there are facts from which the court could decide, in the absence of any other explanation, that a person (A) contravened the provision concerned, the court must hold that the contravention occurred. ... But subsection (2) does not apply if A shows that A did not contravene the provision." In short once there is enough evidence for the plaintiff for the judge to decide the defendant did it, in the absence of their defence, the defendants now effectively has to prove their innocence with their defence."

What this usually means is once 1a is satisfied its upto the defence to come up with an excuse in section 1b. Case law (Akerman-Livingstone v Aster Communities ) indicates that the objective test has 4 components

1. was there a legitimate aim (enforcing the law is clearly legitimate)
2. was the aim logically connected to the action taken
3. was the action taken as minimal (in terms of being unfavourable to the disabled person) as possible
4. was the impact of the action on the disabled person outweighed by other benefits.

The police are likely to struggle with points 2 and 3. 2 because they didn't charge the disabled person and arguably should have known the statements weren't likely to rise to the level necessary for charges at the time. Especially in the context of the girl being autistic (because state of mind does have baring on a section 5 public order offence). Again on point 2 there is overlap with false imprisonment although the standards of proof are likely to be different. They will struggle with point 3 because there may have been other options open to them. There was no urgency to make the arrest. The principal physical evidence was on the body cam footage already acquired. The girl could have been arrested the day after after calming down, questioned under caution in her own home or asked to attend interview under caution voluntarily. At the very list the officers present could have waited until there was an officer with suitable training present to make the arrest.

This dovetails neatly into reasonable adjustments. There are plenty of reasonable adjustments that should have been made regarding the way she was arrested. section 20(2) says "The first requirement is a requirement, where a provision, criterion or practice of A's puts a disabled person at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, to take such steps as it is reasonable to have to take to avoid the disadvantage."

I think there is a clear argument that being manhandled in an arrest is more disadvantageous to an autistic person who finds physical contact with strangers distressing. Also deciding how physical force or restraint is or isn't used in an arrest is clearly a form of provision, criterion or practice. Section 20 is likely to apply. So what reasonable steps could they have taken? Again the lack of urgency will work against the police. They could have taken more time to calm her down. Found an adult who might be able to talk her into voluntarily going with the police with out restraint / force. They could have waited for a police officer with suitable training to be available to advise them how to make the arrest.

In this case the relevant mater is determined in schedule 2 2(4) "In relation to each requirement, the relevant matter is the provision of the service, or the exercise of the function, by A." In this case the function being making an arrest.

As mentioned the family will also likely bring a false imprisonment claim. Here the baseline is to prove the girl was imprisoned (which is trivial) and it is then for the police to justify the arrest. There only real defence to this is likely to be that it was a lawful arrest under the pace act section 24(2) "If a constable has reasonable grounds for suspecting that an offence has been committed, he may arrest without a warrant anyone whom he has reasonable grounds to suspect of being guilty of it." Is it reasonable to infer someone saying 'she's a lesbian like my nana' as an offence especially when you are told the person is autistic. If not the arrest is likely to be illegal in and of itself.

I'm looking forward to this case.

Let us look at the possibilities:

(a) The officer was a lesbian. That is perfectly legal. There was no hate speech involved, just a statement of fact.

(b) The officer was NOT a lesbian. Again, that is not an accusation. Homosexuality is a normal part of the human condition. The young person perceived similarities between her Nana and the officer and verbalised the (eroneous) conclusion.

Is "lesbian" no longer a politically-correct term for females with sapphic proclivities?