Diedrick, R (On the Application of) v Hampshire Constabulary & Ors

The claimant sought judicial review of (i) the Secretary of State's amendment to PACE Code A by the PACE (Codes of Practice) (Revision of Codes A, B and D) Order, SI 2011 No. 412, which removed the national mandatory requirement to record the self-defined ethnicity of persons the police asked to account for themselves in public ("Stop and Account"); and (ii) the decision of the Chief Constable of Hertfordshire not to direct officers to record Stop and Accounts. The primary legal issues were whether those decisions breached the public sector equality duty in s.71 Race Relations Act 1976 and/or s.149 Equality Act 2010, and whether the Secretary of State and the Chief Constable had acted lawfully, rationally and with due regard to equality.

The court held that devolving the decision whether to record Stop and Account to Chief Constables was a lawful exercise of policy discretion, that the Secretary of State had had due regard to the equality aims in s.149(1) when making the amendment and that the policy change was rational and proportionate. The court also held that the Chief Constable of Hertfordshire had considered relevant local factors, engaged with local groups and had due regard to equality aims in deciding to discontinue local reporting. The application for permission to apply for judicial review was refused.

Background and nature of the claim

• The claimant challenged two decisions by judicial review: the amendment to PACE Code A by SI 2011 No. 412 removing the national requirement to record self-defined ethnicity for Stop and Account; and the Chief Constable of Hertfordshire's decision to discontinue local recording of Stop and Account from 2 March 2011. Relief sought was permission to judicially review and quash those decisions.

Factual and statutory context

• Stop and Account is an encounter where an officer asks someone to account for themselves but does not search. Recording of Stop and Account had been introduced following the Stephen Lawrence Inquiry and subsequently amended in 2009 to require recording only of self-defined ethnicity. The 2011 Order removed the national automatic requirement to record such encounters and devolved discretion to Chief Constables to require local recording where local disproportionality concerns existed.
• The legal framework included the public sector equality duties under s.71 Race Relations Act 1976 (replaced by s.149 Equality Act 2010), s.95 Criminal Justice Act 1991 reporting, and provisions of PACE cited in the judgment.

Issues framed by the court

1. Whether the Secretary of State's amendment complied with the public sector equality duty (s.71 RRA / s.149 EA 2010) and was otherwise lawful and rational.
2. Whether the Chief Constable of Hertfordshire had had due regard to the equality duty and lawfully exercised his discretion in discontinuing recording of Stop and Account.
3. Whether delay barred the challenge to the Secretary of State.

Court's reasoning and conclusions

• The court summarised the judicially developed content of the duty to have "due regard" and emphasised that the test is one of substance: an authority must consider relevant factors with rigour, gather relevant information and give appropriate weight to countervailing factors, but the weight to be given is for the decision-maker unless unreasonable.
• The court accepted that raw disproportionality statistics are contestable and may require local contextual adjustment; it was not persuaded that the Secretary of State had ignored or failed to consider the impact on ethnic minorities. The Secretary of State had considered savings in police time, debated the matter in Parliament, consulted interested parties and remained able to review the policy. The court found the devolved approach rational and compatible with the equality duty.
• As to the Chief Constable of Hertfordshire, the court was satisfied he had engaged with local community groups, considered local statistics and other contextual material, and properly exercised his discretion. The decision was lawful, rational and kept under review.
• The claim against the Secretary of State was also subject to delay; the court noted the claim was brought out of time and that in any event it lacked sufficient merit.

The court therefore refused permission to proceed with judicial review of both the PACE amendments and the Hertfordshire Chief Constable's decision.

The court refused permission for judicial review of both challenges. It held that the Secretary of State lawfully amended PACE Code A to devolve discretion to Chief Constables to monitor Stop and Account where local disproportionality concerns existed, having had due regard to the equality duty in s.149(1) Equality Act 2010 and acting rationally and proportionately. The Chief Constable of Hertfordshire had also had due regard to the equality aims and lawfully exercised his discretion not to require recording in his area. The claim was, in any event, out of time against the Secretary of State and lacked sufficient merit.