Police officers are subject to race bias Act, but the Chief Constable is not vicariously liable.
(1996) The Times, October 10th Court of Appeal
Farah v Commissioner of Police of the Metropolis
THE STATUTE
Section 20 of the Race Relations Act 1976 provides:
"(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 . . . (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. . .
"(2) The following are examples of the facilities and services mentioned in subsection (1) &; . . . (g) the services of any profession or trade, or any local or other public authority."
Section 53 provides:
"(1) 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."
THE FACTS
LORD JUSTICE HUTCHISON said Farah was a Somali citizen and refugee, aged 17 in 1994 when she was attacked in Lee with her cousin aged 10 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 and charged her with affray, common assault and causing unnecessary suffering to a dog. No evidence was offered when she appeared to answer the charges and she was acquitted.
She had brought an action for damages against the Commissioner of Police of the Metropolis alleging false imprisonment, assault and battery and malicious prosecution.
She had also included in her statement of claim an allegation that the conduct of the attending police amounted to unlawful racial discrimination. Judge Harris had refused to strike out that allegation and allowed Farah to amend that part of her particulars of claim.
By the amended pleadings she alleged that the officers were acting as the commissioner's agents and because of her race had failed to afford her the protection afforded victims of crime who were white and had brought the proceedings against her on racial grounds, so treating her less favourably than they would treat other persons.
The six-month period under which she could have brought such an action against the individual officers had expired.
The important issues to be determined were: first, whether a police officer came within section 20 of the Race Relations Act 1976 and second, whether, if he did, his chief officer of police was answerable in law for any breaches of the Act he might have committed.
Answering the first question in the affirmative, his Lordship said it was arguable that the limited service for which Farah looked to the police came within the test laid down by Lord Fraser of in In re Amin [1983] 2 AC 818, that the service done on behalf of the chief officer be of a kind similar to acts that might be done by a private person.
His Lordship rejected counsel for the Commissioner's argument that it would be contrary to public policy to bring police officers within section 20 of the 1976 Act. He accepted counsel for Farah's contention that section 20(2)(g) was entirely apt to cover those parts of a police officer's duties involving assistance to or protection of members of the public.
Farah's claim was that she sought the service of protection and because of her race was denied the protection others would have been afforded.
It seemed to his Lordship that was no less the provision of a service than was the giving of directions or other information to a member of the public who sought them. Nothing in the subsection excluded police officers.
There was no reason why a person performing a public service might not also be providing a service: Savjani v Inland Revenue Commissioners [1981] QB 458, 467 per Lord Justice Templeman.
There were powerful public policy arguments on both sides and his Lordship did not find the spectre of racial discrimination claims against the police to be more disturbing that the prospect that a member of the public who, seeking assistance in dire need had been the subject of racial discrimination, should be without remedy.
A claim of racial discrimination could plainly be made against an individual police officer by a member of the public. But there were difficult problems with the issue whether the commissioner was vicariously liable.
As a matter of strict construction the prohibition in section 53(1) of the 1976 Act affected both types of claim and identity of parties. The section was very restrictive and expressed in clear language.
Ordinary vicarious liability apart from the Act did not suffice to found a claim; it was only to the extent that the Act permitted vicarious liability claims that they could be maintained.
His Lordship rejected a submission by counsel for Farah that police officers should be regarded, since Hawkins v Bepey [1980] 1 WLR 419 as agents of their chief officer.
But in that case, the police officer had acted on the express instructions of the chief constable. There was no valid ground in the present case for concluding that the officers were the commissioner's agents.
Lord Justice OTTON and Lord Justice Peter Gibson agreed.
THE DECISION
Police officers were subject to section 20(g) of the Race Relations Act 1976 so that it was unlawful for them to discriminate in the provision of services, including the provision of protection from crime. But while a claim might be maintained against individual officers, the chief officer of police was not vicariously liable for their acts of racial discrimination.
The Court of Appeal so held allowing an appeal by, the Commissioner of Police of the Metropolis, against the refusal in Central London County Court on December 21, 1995 to strike out certain passages in the particulars of claim of Farah, for false imprisonment, assault and battery, malicious prosecution and unlawful racial discrimination.
Public may sue police officers for racism
Comment
Racially discriminatory behaviour is an offence under the Police Discipline Code: Where a member of a police force:-(a)While on duty, on the grounds of another person's colour, race nationality or ethnic or national origins, acts towards that other person in a way involving abuse of authority As defined) or
(b)In any other way, or any of these grounds, treats improperly a person with whom he may be brought into contact while on duty.
Other cases of significance because they relate to Race are:-
1 R v George and others (1994) The Times, April 9 where it was held inappropriate for a Judge to comment on the colour of a defendant before passing sentence as it was likely to leave a lingering feeling that their colour had affected the length of their sentence.
2 R v Ribbans and others (1994) The Times, November 25 where it was held that a proven racial element in an offence of violence was a gravely aggravating feature justifying an increase of sentence.
Reading the two cases above leads to the conclusion that judges could be faced with a dilema.
Rob Jerrard