Farah v Commissioner of Police of the Metropolis
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE HUTCHISON,LORD JUSTICE OTTON,LORD JUSTICE PETER GIBSON |
| Judgment Date | 09 October 1996 |
| Judgment citation (vLex) | [1996] EWCA Civ J1009-3 |
| Docket Number | No CCRTI 96/0603/G |
| Court | Court of Appeal (Civil Division) |
| Date | 09 October 1996 |
[1996] EWCA Civ J1009-3
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM ORDER OF HIS HONOUR JUDGE HARRIS
(Sitting at Central London County Court)
Royal Courts of Justice
Strand
London WC2
Lord Justice Peter Gibson
Lord Justice Otton
Lord Justice Hutchison
No CCRTI 96/0603/G
MR A NICOL QC and MISS H WILLIAMS (Instructed by Deighton Guedall, Islington N1) appeared on behalf of the Appellant
MR R SEABROOK QC and MR D MACLEOD (Instructed by Metropolitan Police Solicitors) appeared on behalf of the Respondent
This is an appeal by the defendant from the order of Judge Harris in the Central London County Court on 21st December 1995 refusing to strike out part of the plaintiff's Statement of Claim.
The action arises out of an occurrence on 17th July 1994. The case pleaded by the plaintiff, who is a citizen of Somalia and a refugee and who was aged seventeen at the time, is that on that date she and her 10 year old cousin were attacked near their home by some white teenagers, who set a dog on her and injured her. By a 999 call she summoned police assistance, but the police officers who came in response, instead of helping her and seeking to detain her attackers, arrested her without cause, detained her for a time, and charged her with affray, common assault and causing unnecessary suffering to a dog. She was released on bail the same day. On 12th January 1995 she appeared to answer the charges and, no evidence being offered, was acquitted.
The plaintiff's claim against the Commissioner of Police for the Metropolis in proceedings began on 13th January 1995, is for damages, including aggravated and exemplary damages, for inter alia false imprisonment, assault and battery, and malicious prosecution. These claims, denied by the defendant in his defence, are accepted as disclosing causes of action.
However, the plaintiff also included in her Particulars of Claim an allegation that the conduct of the attending police officers amounted to unlawful racial discrimination, and it was this that the defendant sought to strike out. It is necessary to outline the way this claim is pleaded, and in doing so I refer to the Amended Particulars of Claim (Judge Harris, having dismissed the defendant's application to strike out, allowed an amendment sought by the plaintiff). What the plaintiff alleges is this:
She says that the defendant was the employer of the officers and that, by virtue of section 32 of the Race Relations Act 1976 he is liable for anything done in the course of their employment. This allegation is not, however, (subject to a qualification which will appear from what I say later) now pursued. Alternatively (this is the amendment) she says they were acting as the defendant's authorized agents within the meaning of section 32 (2) of the Act. She contends that the defendant is vicariously liable for the conduct of the officers. She puts her claim on the basis that she was a person seeking to obtain the use of services from a person concerned with the provision of services to the public within the terms of section 20 of the Act, and that the officers deliberately omitted to provide her with the services she sought or with services of a like quality or in like manner or on the like terms to those normally provided by the officers to other members of the public. She particularises, in support of this assertion, the acts or omissions of which she says the officers were guilty as follows:
(a) officers in the employment of the defendant failed to react alternatively chose to ignore her call for assistance by way of an emergency telephone call to the police emergency service before the attendance of the said officers;
(b) the said officers at the scene of her detention and involved with the interview of the plaintiff failed to investigate her account of events both at the scene of her apprehension and thereafter;
(c) the defendant and the officers in his employment failed to afford the protection accorded victims of crime in like manner to the plaintiff as to white members of the public.
Then in paragraph 12 (iv) the plaintiff says that the officers brought the criminal proceedings against her, on racial grounds, and so treated her less favourably than they would treat other persons.
All of this was sought to be struck out as disclosing no cause of action.
Judge Harris correctly approached the matter on the basis that for the purpose of deciding such a striking out claim he should consider the pleading and only accede to the application to strike out if he was satisfied that the impugned parts of the pleading disclosed no cause of action. He rightly accepted that if the pleading was arguably good the matter must be left for trial—the remedy of striking out was available only in a plain and obvious case.
Having considered each of the arguments advanced by the defendant the judge felt unable to say that the Race Relations Act claim was unarguable and dismissed the application. I now consider the arguments as they have been presented before us on the appeal from the judge's order.
I begin by referring to those provisions of the Race Relations Act 1976 ("the Act") and the Police Act 1964 which are material. Part I of the Act defines discrimination and it is necessary to cite only section 1 (1) (a) which reads:
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….
Part II of the Act deals with discrimination in the employment field. Section 16 headed "Police" provides in subsection (1):
For the purposes of this Part, the holding of the office of constable shall be treated as employment —
(a) by the chief officer of police as respects any act done by him in relation to a constable or that office;
(b) by the police authority as respects any act done by them in relation to a constable or that office.
Part III of the Act deals with discrimination in other fields, and in that part is to found section 20, relating to discrimination in the provision of goods, facilities or services. Its material provisions are as follows:
(1) It is unlawful for any person concerned with the provision (for payment or not) of goods, facilities or services to the public or a section of the public to discriminate against a person who seeks to obtain or use those goods, facilities or services
(a) by refusing or deliberately omitting to provide him with any of them; or
(b) by refusing or deliberately omitting to provide him with goods, facilities or services of the like quality, in the like manner and on the like terms as are normal in the first-mentioned person's case in relation to other members of the public or (where the person so seeking belongs to a section of the public) to other members of that section.
(2) The following are examples of the facilities and services mentioned in subsection (1) —
(a) access to and use of any place which members of the public are permitted to enter;
(b) accommodation in a hotel, boarding house or other similar establishment'
(c) facilities by way of banking or insurance or for grants, loans, credit or finance;
(d) facilities for education;
(e) facilities for entertainment, recreation or refreshment;
(f) facilities for transport or travel;
(g) the services of any profession or trade, or any local or other public authority.
In Part IV of the Act, dealing with other unlawful acts, is section 32, headed "Liability of employers and principals"; it provides:
(1) Anything done by a person in the course of his employment shall be treated for the purposes of this Act (except as regards offences thereunder) as done by his employer as well as by him, whether or not it was done with the employer's knowledge or approval.
(2) Anything done by a person as agent for another person with the authority (whether express or implied, and whether precedent or subsequent) of that other person shall be treated for the purposes of this Act (except as regards offences thereunder) as done by that other person as well as by him.
Part VI of the Act contains general exceptions from Parts II to IV (for example, by section 41 acts done under statutory authority and by section 42 acts safeguarding national security).
Part VIII of the Act relates to enforcement. Section 53 (1) reads:
Except as provided by this Act no proceedings, whether civil or criminal, shall lie against any person in respect of an act by reason that the act is unlawful by virtue of a provision of this act.
Section 57, headed "Claims under Part III provides, as
material:
(1) A claim, by any person ("the claimant") that another person ("the respondent") —
(a) has committed an act of discrimination against the claimant which is unlawful by virtue of
Part III; or
(b) is by virtue of section 32 or 33 to be treated as having committed such an act of discrimination against the claimant, may be made the subject of civil proceedings in like manner as any other claim in tort …..
Section 48 (1) of the Police Act 1964 provides as follows:
The chief officer of police for any police area shall be liable in respect of torts committed by constables under his direction and control in the performance or purported performance of their functions in like manner as a master is liable in respect of torts committed by his servants in the course of their employment, and accordingly shall in respect of any such tort be treated for all purposes as a joint tortfeasor.
There are in my view two important issues...
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