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

A public authority’s equality duty requires substantive, rigorous and open-minded consideration of the statutory equality aims before, and during, an important policy decision. The duty concerns due regard to those aims, rather than an obligation to achieve them or to carry out a formal equality impact assessment. Judicial review examines whether due regard was actually given, not merely whether the decision was irrational in the Wednesbury sense. Where local conditions materially affect the appropriate policing response, responsibility may lawfully be devolved to Chief Constables, provided relevant equality considerations are addressed and the decision remains under review. Disproportionality statistics require careful evaluation and do not, without more, establish discriminatory policing.

The claimant sought permission to challenge amendments to Police and Criminal Evidence Act 1984 Code A, made by the Police and Criminal Evidence Act 1984 (PACE) (Codes of Practice) (Revision of Codes A, B and D) Order 2011, which removed the national requirement to record self-defined ethnicity during Stop and Account encounters. He also challenged the decision of the Chief Constable of Hertfordshire Constabulary to discontinue such recording locally.

The challenges alleged breach of the public sector equality duty under section 71 of the Race Relations Act 1976 and section 149 of the Equality Act 2010, irrationality, and inconsistency with section 95 of the Criminal Justice Act 1991. The central questions were whether the Secretary of State and the Chief Constable had given due regard to the equality aims and whether the decisions were rational and lawful.

1. Claim against the Secretary of State. The challenge was not arguable. The amendment did not prohibit recording Stop and Account encounters. It gave each Chief Constable discretion to require recording where local concerns made monitoring disproportionality necessary.

2. The public sector equality duty required due regard to eliminating discrimination, advancing equality of opportunity and fostering good relations. It was a duty to consider those aims, not a duty to achieve them. The assessment had to be substantive, rigorous and undertaken with an open mind before and during the policy decision. The court reviewed whether due regard had been paid as a matter of substance. No equality impact assessment was legally mandatory.

3. The Secretary of State was entitled to balance police efficiency, the potential benefits and burdens of recording ethnicity, local conditions and the promotion of good race relations. The disputed estimates of police-time savings did not make the decision irrational. The consultation responses and parliamentary debates showed that the potential equality effects had been considered.

4. Disproportionality ratios required caution. They did not, without reliable contextual evidence, establish discriminatory police practice. The continuing national recording requirement for the more intrusive Stop and Search procedure, together with local information and representations available to Chief Constables, was relevant to the rationality and proportionality of the policy.

5. Claim against the Chief Constable. The Chief Constable had considered the local ratios, community representations and other relevant information. He was entitled to conclude that there was no genuine and legitimate local concern requiring continued recording. His decision was rational and lawful, but had to remain under review and respond to material changes in local conditions.

6. Permission was refused in respect of both challenges. The claim against the Secretary of State was also brought out of time.