Bianca Durrant v Chief Constable of Avon & Somerset Constabulary
| Jurisdiction | England & Wales |
| Judge | Lord Justice Sales,Lord Justice Moylan,Lady Justice Black |
| Judgment Date | 17 August 2017 |
| Neutral Citation | [2017] EWCA Civ 1275 |
| Docket Number | Case Nos: A2/2014/3747 and A2/2015/0292 |
| Court | Court of Appeal (Civil Division) |
| Date | 17 August 2017 |
[2017] EWCA Civ 1275
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
AND THE COUNTY COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Lady Justice Black
Lord Justice Sales
and
Lord Justice Moylan
Case Nos: A2/2014/3747 and A2/2015/0292
Timothy Adkin (instructed by direct access) for the Appellant
Alan Payne (instructed by Legal Services Directorate, Avon & Somerset Police) for the Respondent
Hearing date: 27 July 2017
Approved Judgment
This is the hearing of two appeals from a decision of HHJ Seys Llewellyn QC in relation to a race discrimination claim brought by the appellant against Avon and Somerset Police in respect of matters arising from an incident in Bristol in the early hours of 13 June 2009 when the appellant was arrested by the police. The first appeal relates to liability. The second appeal relates to quantum of damages.
The appellant is a woman of mixed race. She was partially successful before the judge in her race discrimination claim. The judge found there had been two acts of unlawful discrimination in relation to her, but on this appeal she contends that further findings of acts of discrimination should have been made by him. She also submits that the damages awarded by the judge in the sum of £4950 were too low. Since the relevant events took place some years ago and preceded the coming into force of the Equality Act 2010, the judge was required to apply the law on race discrimination as set out in the Race Relations Act 1976 (as amended).
The claim of discrimination was based on section 57 of the 1976 Act, which covers alleged discrimination by the police in carrying out their functions. Section 1(1)(a) of the 1976 Act defines racial discrimination thus: "a person discriminates against another in any circumstances relevant for the purposes of any provision of this Act if – (a) on racial grounds he treats that other less favourably then he treats or would treat other persons".
The judge dismissed further claims by the appellant based on Article 3 of the European Convention on Human Rights ("ECHR") and the Human Rights Act 1998, misfeasance in public office, defamation and allegations of unlawful arrest and unlawful assault. The appellant has not been granted permission to appeal in relation to these aspects of the judgment. For the purposes of those claims the judge sat as a deputy judge of the High Court. For the purposes of the race discrimination claim pursuant to the 1976 Act, the judge sat as a judge of the County Court, which is the court with jurisdiction for such claims. Accordingly, the present appeal is an appeal from the County Court.
This appeal addresses the intersection of the substantive law of discrimination under the 1976 Act, the law of evidence as modified by section 57ZA of the 1976 Act and the operation of procedural law. As to substantive law, unlawful race discrimination may arise if there is conscious and deliberate detrimental treatment applied to an individual on grounds of their race or if there is detrimental treatment on the basis of an unconscious bias against a person with that racial profile, for instance where there is unconscious racial stereotyping. The difference may be relevant to the assessment of damages.
Section 57ZA provides in relevant part as follows:
"(1) This section applies where a claim is brought under section 57 and the claim is that the respondent –
(a) has committed an act of discrimination, on grounds of race or ethnic or national origins, which is unlawful by virtue of any provision referred to in section 1(1B)(b) to (d), or Part IV in its application to those provisions …
(2) Where, on the hearing of the claim, the claimant proves facts from which the court could, apart from this section, conclude in the absence of an adequate explanation that the respondent –
(a) has committed such an act of discrimination or harassment against the claimant, …
the court shall uphold the claim unless the respondent proves that he did not commit or, as the case may be, is not to be treated as having committed, that act."
Prior to trial the police were subject to orders to serve on the appellant any witness statements by relevant police officers in answer to the claim. This they failed to do and accordingly, and as confirmed by a ruling in this court, they were debarred from relying on such witness statements at the trial in order to give an account of why individual officers acted in the way they did. This meant that the trial proceeded on the basis of witness statements and oral evidence from the appellant and Lisa Putterill (a friend of the appellant who was arrested with her), together with documentary materials relating to the claim which had been disclosed by the police and videos taken from CCTV cameras in Bristol city centre and at the police station. Ms Putterill is white and parts of the appellant's race discrimination claim rested on a comparison with how Ms Putterill was treated by the police. The judge found that the acts of discrimination identified by him arose on the basis of unconscious bias on the part of the police officers involved.
At trial, the appellant was a litigant in person representing herself. The police were represented by Mr Payne, who also appears for the police on this appeal. The judge was not referred to section 57ZA, but Mr Payne says that the appellant herself made sufficient reference to the substantive issue of the burden of proof and the judge is experienced in trying race discrimination claims and so must have had it in mind. As appears below, I am not satisfied that the judge did in fact have it in mind or take it properly into account. Section 57ZA is a complex provision and it would have been desirable for Mr Payne to have drawn his attention to it.
On this appeal Mr Adkin appears for the appellant. He secured permission to appeal for her at an oral permission hearing before McCombe LJ at which he appeared pro bono. Mr Adkin submits that the judge failed to apply the law as set out in section 57ZA and that, since the police were prevented by the procedural ruling of the court from being able to adduce witness statements in evidence to explain the conduct of police officers, the judge should have found on the basis of that provision that three further acts of unlawful discrimination occurred, to add to his findings of two acts of unlawful discrimination which he did make in his decision. Mr Adkin also submitted, albeit faintly and, as he made clear, on the basis of instructions given him by his client in court, that the judge should have found that all the further alleged acts of unlawful discrimination occurred on the basis of conscious racial bias on the part of the police officers involved.
As I explain in the discussion below, I would allow the appeal to the extent that the judge should on proper application of section 57ZA have found one additional feature of unlawful discrimination on the part of one police officer. I would reject the appeal in relation to the other two additional acts of alleged unlawful discrimination which the appellant raises on this appeal and would reject her appeal to the effect that the additional act of discrimination should be found to have occurred on the basis of conscious racial bias on the part of the police officer involved. The parties were agreed that if we reached such a conclusion on the appeal, the determination of the appeal relating to the quantum of damages should be postponed until after the parties had made submissions in writing in the light of the outcome of the appeal on liability.
Factual background
The full factual background for all the claims made by the appellant appears in the judgment of the judge. It is not necessary to rehearse it all in this judgment. The relevant factual background can be summarised as follows.
The appellant and Ms Putterill had been out in Bristol city centre on the evening of 12 June and into the small hours of 13 June 2009. At about 2.30 am they went to get a taxi from a taxi rank supervised by two taxi marshals. Having entered a taxi they became engaged in an argument with the taxi driver when he demanded payment of the fare up-front and would not show them his licence badge. The evidence of Ms Putterill was that one of the taxi marshals made an offensive racist remark so she got out furiously to confront him.
Things escalated. The taxi marshal seized Ms Putterill and held her against some railings. The appellant was seized by the other marshal. Ms Putterill fell to the floor with the first marshal on top of her. A by-stander, a Mr Allen (who is white) intervened to pull away the marshal on top of Ms Putterill and the other marshal let go of the appellant to help detain Mr Allen. The appellant picked up her mobile phone from the floor and was then seen on the CCTV video of the event to strike one of the marshals from behind. She maintained that she did this to try to assist Mr Allen whom she believed was being assaulted.
The police were called by the team monitoring the CCTV cameras in the city centre, who reported the incident as an assault on taxi marshals by females, including one described as "black" (a reference to the appellant). A police van with a number of officers inside attended at the scene. The officers left the van and one of the marshals pointed them in the direction of a group comprising the appellant, Ms Putterill and Mr Allen. The officers' attention focused on the appellant. A female officer, PC Brett, arrested her. The police did not initially attempt to arrest Ms Putterill or Mr Allen, but rather waved them away (or even, in the case of Ms Putterill, pushed her away) from the...
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Bianca Durrant v Chief Constable of Avon & Somerset Constabulary
...in relation to her complaints of race discrimination against the respondent Chief Constable on 17 August 2017 (neutral citation [2017] EWCA Civ 1275) and gave directions for written submissions to be filed in relation to issues of quantum. This judgment should be read in conjunction with o......