Commission for Racial Equality v Dutton
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE NICHOLLS,LORD JUSTICE TAYLOR,LORD JUSTICE STOCKER |
| Judgment Date | 27 July 1988 |
| Judgment citation (vLex) | [1988] EWCA Civ J0727-8 |
| Docket Number | 88/0681 |
| Court | Court of Appeal (Civil Division) |
| Date | 27 July 1988 |
[1988] EWCA Civ J0727-8
Lord Justice Stocker
Lord Justice Nicholls
and
Lord Justice Taylor
88/0681
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE WESTMINSTER COUNTY COURT
(His Honour Judge Harris)
Royal Courts of Justice
MR. S. J. SEDLEY, Q.C. and MR. K. HORNBY (instructed by Messrs Bindman & Partners) appeared on behalf of the Appellants/Plaintiffs.
MR. J. SAMUELS, Q.C. and MR. R. McCARTHY (instructed by Messrs Edward Fail Bradshaw and Waterson) appeared on behalf of the Respondent/Defendant.
This case concerns gipsies, and whether they are a racial group within the Race Relations Act 1976. Mr. Patrick Dutton has been the licensee of the Cat and Mutton public house, at Broadway Market, London Fields, London E.8, for four years. Previously he was the licensee for a year at the Earl of Beaconsfield, in Southwark, and before that he was at the Lord Cecil, in Clapton, from 1978. At both those houses Mr. Dutton had unpleasant experiences with people who came from caravans which were parked illegally on nearby sites. They caused damage. They threatened Mr. Dutton and terrorised his wife. They behaved generally in such a way as to upset Mr. Dutton's regular customers. So much so that, after such incidents, he put up a sign in the windows of the Earl of Beaconsfield and, subsequently, the Lord Cecil, which read "No travellers". By that he meant, as he said in evidence, a person who travels around in a caravan and parks on illegal sites and gives him "hassle". He wanted only to stop such people coming into his public house. Had the incidents continued he would have lost all his customers. After he put up the signs he had no more problems with such people.
One weekend, after Mr. Dutton had been at the Cat and Mutton for about 18 months, some 15 or so caravans parked opposite the public house on London Fields, illegally, about 150 yards away. On Sunday morning some of these "travellers" came into the Cat and Mutton. Mr. Dutton refused to serve one of them on the ground he was from the site. There was an incident. Mr. Dutton then put up handwritten signs in the windows of the Cat and Mutton: "Sorry, no travellers". Since then Mr. Dutton has had no more trouble with "travellers".
In June 1985 a local resident, who does not use the Cat and Mutton, brought these signs to the attention of the Commission for Racial Equality. The commission took the view that the signs discriminated against gipsies. After correspondence this action was brought by the commission, in the exercise of its functions under section 63. The commission seeks a declaration that by displaying the signs Mr. Dutton has contravened section 29 of the Race Relations Act 1976 and an injunction restraining him from continuing to display the signs. The action was heard by Judge J.P. Harris, Q.C. at the Westminster County Court. He sat with two assessors appointed from the list maintained by the Secretary of State under section 67(4) of persons who appear to him to have special knowledge and experience of problems connected with relations between persons of different racial groups. On 29th June 1987 the judge dismissed the action. The commission has appealed from that decision.
The Statute
Section 29 (1) provides:
"It is unlawful to publish or to cause to be published an advertisement which indicates, or might reasonably be understood as indicating, an intention by a person to do an act of discrimination, whether the doing of that act by him would be lawful or, by virtue of Part II or III, unlawful".
Discrimination for the purposes relevant in the present case is defined in section 1 (1). Two types of conduct are within the definition. Paragraph (a) defines what is generally called "direct" discrimination, although not so called in the Act, as follows:
"(1) 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 than he treats or would treat other persons
…".
Section 3 (1) defines "racial grounds" as meaning any of the following grounds, namely, colour, race, nationality, or ethnic or national origins.
Mr. Dutton's notices are advertisements within the definition in section 78 (1). Further, they indicate an intention by him to treat "travellers" less favourably than he treats other persons, in circumstances relevant for the purposes of the Act. By the notices he is informing would-be customers that he will not service any who are "travellers". They cannot use the Cat and Mutton. That is discrimination in the provision of goods, facilities or services (see section 20). Thus arises the question on this part of the case: is that discrimination "on racial grounds"? On this, the first issue to be considered is the meaning of the expression "travellers" in the context in which the signs are being displayed.
The commission's case was that in these notices "travellers" is synonymous with gipsies. Before the judge there was material supporting the contention that, in recent years, the two expressions are sometimes used interchangeably. For example, a new edition of Chambers 20th Century Dictionary, published in 1983, includes under the word "travel" the sub-heading "traveller":
"travelling folk, people: the name by which itinerant people often call themselves, in preference to the derogatory names gipsies or tinkers".
Again, the 1986 supplement to the Oxford English Dictionary added a further meaning to the word "traveller:…also, a gypsy". There was also evidence to the same effect, from two expert witnesses, Dr. Donald Kenrick and Dr. Thomas Acton.
The meaning of "gipsy"
Notwithstanding this material the judge rejected the view that the words are synonymous. I agree with him. But before proceeding further it is necessary for me to comment on the word "gipsy". One of the difficulties in the present case, in my view, is that the word "gipsy" has itself more than one meaning. The classic "dictionary" meaning can be found as the primary meaning given in the Oxford English Dictionary (1933):
"A member of a wandering race (by themselves called 'Romany'), of Hindu origin, which first appeared in England about the beginning of the 16th century and was then believed to have come from Egypt".
Hence the word "gipsy", also spelled as "gypsy". It is a corruption of the word Egyptian. We find this usage in Shakespeare, where Othello says to Desdemona (Act III, scene IV):
"That handkerchief Did an Egyptian to my mother give. She was a charmer, and could almost read The thoughts of people."
Alongside this meaning, the word "gipsy" also has a more colloquial, looser meaning. This is expressed in the Longman Dictionary of Contemporary English, where two meanings are attributed to "gipsy". The first meaning is along the lines I have already quoted. The second is this:
"A person who habitually wanders or who has the habits of someone who does not stay for long in one place".
In short, a nomad.
I can anticipate here by noting that if the word "gipsy" is used in this second, colloquial sense it is not definitive of a racial group within the Act. To discriminate against such a group would not be on racial grounds, namely, on the ground of ethnic origins. As the judge observed, there are many people who travel around the country in caravans, vans, converted buses, trailers, lorries and motor vehicles, leading a peripatetic or nomadic way of life. They include didicois, mumpers, peace people, new age travellers, hippies, tinkers, hawkers, self-styled "anarchists", and others, as well as (Romany) gipsies. They may all be loosely referred to as "gipsies", but as a group they do not have the characteristics requisite of a racial group within the Act.
I give two further illustrations of this point. First, an extract from a report of the Greater London conciliation committee, set out in Appendix III to the Report of the Race Relations Board for 1967–68. This refers neatly to a difficulty arising in this field from the two meanings I have mentioned.
"There are the pubs who discriminate against Gipsies. In tackling this problem the Committee has been hampered by two ambiguities. There is, first, some doubt as to the status of Gipsies under the Act. The Committee feels that there is little or no justification for this doubt, but equally believe that it persists and that it does so largely because of the second ambiguity. This second ambiguity arises out of common parlance, for it seems that the word "Gipsy" is used to designate wanderers generally as opposed to ethnic Gipsies. The Committee is, therefore, trying to prevent discrimination against Gipsies in the one (proper) sense while being aware that it may not interfere with discrimination against Gipsies in the other (vulgar) sense, and it is in a weak position in any argument with a publican about which way he uses the words."
Secondly, the decision of the Queen's Bench Divisional Court in Mills v. Cooper [1967] 2 Q.B. 459. The court was there concerned with the meaning of the word "gipsy" in section 127 of the Highways Act 1959. So far as material the section provides:
"If, without lawful authority or excuse…
(c) a hawker or other itinerant trader or a gipsy pitches a booth, stall or stand, or encamps on a highway, he shall be guilty of an offence…."
In Mills v. Cooper it was argued that the word "gipsy" should be "given its dictionary meaning, as being 'a member of the Romany race'."Lord Parker C.J. said (at p.467):
"That...
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