Farah v Comr of Police of the Metropolis

A police officer may provide a service within section 20 of the Race Relations Act 1976 when assisting or protecting a member of the public. The performance of a public duty and the provision of a service are not mutually exclusive.

A chief officer is not, however, liable under that Act merely because section 48 of the Police Act 1964 makes the chief officer liable for constables’ torts. Sections 53 and 57 restrict liability to routes authorised by the 1976 Act. Constables are neither employees nor, when exercising their original authority as peace officers, agents of the chief officer for section 32 purposes. Liability under section 32(2) requires express or implied authority for the discriminatory act.

A Somali refugee alleged that police officers responding to her emergency call failed, on racial grounds, to protect her or investigate her account. They instead arrested and prosecuted her. Alongside claims for false imprisonment, assault, battery and malicious prosecution, she pleaded unlawful discrimination under section 20 of the Race Relations Act 1976 against the Commissioner of Police.

Judge Harris, sitting at Central London County Court, refused to strike out the discrimination claim and allowed an amendment alleging that the officers were the Commissioner’s authorised agents under section 32(2). The Commissioner appealed.

The Court of Appeal considered whether police assistance and protection could constitute services under section 20 and, if so, whether the Commissioner could be liable for the officers’ discrimination under the statutory provisions governing attribution and enforcement.

1. Appeal allowed unanimously. Hutchison LJ delivered the leading judgment. Otton LJ agreed with his analysis, reasoning and conclusions, and Peter Gibson LJ agreed with both judgments. The discrimination claim and the amendment alleging agency were struck out.

2. Police officers may fall within section 20 of the Race Relations Act 1976 when performing those parts of their duties which provide assistance or protection to members of the public. The performance of a public duty and the provision of a service can coexist. Protection sought by a victim of violence is capable of being a service, including a service within section 20(2)(g). The Act contains specific public-policy exceptions but no general exception for the police.

3. A person alleging such discrimination may sue the responsible officer under section 57(1). Common-law policies restricting negligence claims against the police do not preclude a statutory discrimination claim where the statutory language applies. Acts concerned solely with pursuing, arresting or charging suspected offenders do not, without more, amount to the provision of the protective service considered in this case.

4. The Commissioner was nevertheless not answerable for the alleged discrimination. Section 53(1), read with section 57(1), restricts both the causes of action and the persons against whom proceedings may be brought. Ordinary vicarious liability, including the liability imposed by section 48(1) of the Police Act 1964, cannot supplement the attribution routes authorised by sections 32 and 33 of the 1976 Act.

5. Section 32(1) did not apply because a constable is an office-holder rather than the Commissioner’s employee. Section 32(2) also did not apply on the pleaded facts. A constable exercising the original authority of the office is not thereby the Commissioner’s agent, notwithstanding the Commissioner’s direction and control of the force. Section 32(2) could apply where the discriminatory act was done with a superior officer’s express or implied authority, but no such authority was alleged.

1. Court of Appeal: The Commissioner’s appeal was allowed unanimously. The impugned parts of the claim were struck out, and the order granting leave to amend was discharged. Leave to appeal to the House of Lords was granted.

2. Central London County Court: Judge Harris refused the Commissioner’s application to strike out the discrimination claim on 21 December 1995 and permitted an amendment alleging authorised agency under section 32(2) of the Race Relations Act 1976.