Durrant v Chief Constable of Avon and Somerset Constabulary

For direct racial discrimination, the court must assess whether a person was treated less favourably on racial grounds, including through unconscious racial stereotyping. The relevant conduct may be assessed cumulatively and by comparing treatment of a proper comparator. A police arrest may be lawful where the officer has a genuine and objectively reasonable suspicion based on information known at the time; direct evidence from the officer is not invariably required. Article 3 requires treatment attaining a high minimum level of severity. Serious humiliation caused by a failure to provide toilet facilities may nevertheless fall below that threshold where it is brief, inadvertent and not accompanied by intense suffering. Statutory exceptions may prevent a discrimination claim based on a decision whether to institute criminal proceedings.

The claimant brought claims arising from her arrest, detention, prosecution and the investigation of her complaints. The pleaded causes of action included unlawful arrest, assault, malicious prosecution, racial discrimination and victimisation, breach of article 3 of the Convention, misfeasance in public office and defamation.

The defendant was unable to rely on its witness evidence after failing to comply with directions for exchange of witness statements. The court considered the claimant’s treatment in comparison with her white friend, particularly at the scene of arrest, during transport and in custody. It also considered the statutory jurisdiction for the racial discrimination claim, the legality of the arrest, the article 3 threshold and the remaining tort and defamation claims.

1. Jurisdiction. Claims under the Race Relations Act 1976 had to be determined in a designated county court with assessors unless the parties consented otherwise. The parties consented to the absence of assessors, and the racial discrimination claims were transferred to the county court.
2. Arrest and assault. The principles stated in O’Hara established that reasonable suspicion concerns the arresting officer’s genuine state of mind and the objective reasonableness of the grounds known to that officer. A prima facie case was unnecessary, and direct evidence from the officer was not always required. The arrest was lawful on the available evidence. The claim of unlawful assault, including excessive handcuffing, was not proved.
3. Racial discrimination. The comparison between the claimant and her white friend was legally material. Although the claimant had not proved conscious racial discrimination, the evidence established unconscious racial stereotyping in two respects: the failure to detain or arrest the other persons whom the taxi marshals had identified, and the claimant’s rear handcuffing despite the finding that she had not resisted arrest. The discrimination claim therefore succeeded in part.
4. Non-prosecution. Section 19F of the Race Relations Act 1976 excluded a claim under section 19B based on a decision not to institute criminal proceedings, or acts done to enable that decision to be made. The claimant could not pursue discrimination based on the police failure to prosecute the taxi marshals.
5. Article 3. The failure to respond to the claimant’s repeated requests to use a toilet was serious and the resulting humiliation was established. However, the episode did not reach the high minimum level of severity required by article 3. It was not shown to involve prolonged, deliberate or intensely degrading treatment, intense physical or mental suffering, or the breaking of the claimant’s physical or moral resistance. The article 3 claim failed.
6. Other claims. The claims for malicious prosecution, misfeasance in public office and defamation were not proved. The court also declined to draw an adverse inference from the absence of the defendant’s police witnesses, because their statements were known to exist and their absence resulted from the procedural sanction.
7. Orders. Liability was established only in respect of aspects of the treatment at the time of arrest. Damages were expected to be modest. Judgment on damages and costs was reserved for further written representations or, if necessary, a further hearing.

The judgment records that the Court of Appeal had earlier allowed an appeal concerning procedural sanctions and ruled that the defendant could not rely on its proposed witness evidence. The present judgment determined liability at first instance on the substantive claims.