Durrant v Chief Constable of Avon & Somerset Constabulary

The Court of Appeal considered an appeal against a County Court judge's findings in a race discrimination claim brought under section 57 of the Race Relations Act 1976, as read with section 57 ZA. The appeal turned on the correct application of the two-stage burden‑shifting approach in section 57 ZA (prima facie facts from which discrimination could be inferred; and then whether the respondent adduces an adequate non‑racial explanation), and on the consequences of the trial judge not having available to him witness statements from police officers because of an earlier procedural ruling.

The court held that the judge had not applied section 57 ZA correctly in one respect: on the evidence the delay in responding to the appellant's repeated requests to use a toilet met the prima facie threshold and, in the absence of any adequate explanation from the police (whose witness statements were debarred), the court substituted a finding that that delay was an act of race discrimination caused by unconscious racial stereotyping. The court dismissed the appellant's other challenges: (i) a submission that laughter in the van constituted a separate, unpleaded act of discrimination (not pleaded at trial and unfair to the respondent); and (ii) the suggestion that differential treatment at a later interview was discriminatory (the judge's finding that the different treatment was explained by differences in presentation between the two women was open on the facts). The court also upheld the judge's finding that the identified acts were not the product of conscious racial animus but rather unconscious stereotyping.

The appellant, a woman of mixed race, appealed the County Court judgment that had found two acts of race discrimination during her arrest and custody on 13 June 2009 but rejected other complaints. The claim was pursued under section 57 of the Race Relations Act 1976; because the events predated the Equality Act 2010 the 1976 Act governed the legal test. The trial proceeded without admissible witness statements from police officers as a result of a pre‑trial order which the police had failed to comply with, so their officers could not give evidence by witness statement at trial.

The appellant alleged further acts of race discrimination: (a) police officers laughing while the appellant was being thrown about in the rear of the police van; (b) failure to provide timely access to a toilet while detained; and (c) differential treatment compared with a white companion when attending for interview on a later date. The appellant argued the trial judge had failed to apply section 57 ZA's two‑stage approach to the burden of proof and that, because the police were debarred from adducing their witness statements, the judge should have drawn adverse inferences or otherwise concluded additional acts of discrimination were proved. She also asked that some findings be characterised as conscious racial bias.

The Court of Appeal reviewed the proper legal approach under section 57 ZA, following the guidance in Igen Ltd v Wong and Madarassy and confirmed in Hewage v Grampian Health Board: first, whether the claimant had proved primary facts from which a court could, absent an adequate explanation, conclude there had been unlawful discrimination; second, if so, whether the respondent had proved a non‑racial explanation on the balance of probabilities. The court found that the trial judge had not applied that structured analysis properly in respect of the toilet complaint. On the facts found at trial (including earlier findings that the appellant had been targeted for arrest and rear handcuffed because of unconscious racial stereotyping), the delay in responding to repeated toilet requests met the prima facie stage and, with no admissible explanation from the police (because of the debarment), the respondent failed to discharge the burden at stage two. The court therefore allowed the appeal in part and substituted a finding that the delay in providing toilet facilities was an act of race discrimination attributable to unconscious racial stereotyping by PS Thorpe. The court dismissed the appeal in relation to the laughter in the van (because the allegation had not been pleaded and the police had no fair notice) and the different treatment at the interview (the judge’s explanation that it was due to the parties’ different demeanours was open on the facts). The court refused to characterise any of the acts as consciously motivated by racial bias. Permission to appeal the quantum of damages was granted and directions were given for written submissions on quantum.

Appeal allowed in part. The Court of Appeal concluded the trial judge had not properly applied section 57 ZA of the Race Relations Act 1976 in relation to the appellant's complaint about delay in providing access to a toilet. On the findings of fact at trial, and in the absence of an adequate explanation from the police (whose witness statements had been debarred), the court substituted a finding that the delay amounted to race discrimination by reason of unconscious racial stereotyping. The court dismissed the appellant's other s57ZA challenges (laughing in the van was unpleaded; differential treatment at interview was explicable by differences in presentation) and upheld the judge's conclusion that the discrimination found was unconscious rather than conscious. Permission to appeal on quantum was granted and directions for written submissions on damages were given.

Appeal to the Court of Appeal (Civil Division) from the County Court judgment delivered by HHJ Seys Llewellyn QC (sitting as a County Court judge for the race discrimination claim) on the underlying proceedings also reported as [2014] EWHC 2922 (QB) in part. Permission in relation to the section 57 ZA points was granted at an oral hearing by McCombe LJ. This judgment is the Court of Appeal determination: [2017] EWCA Civ 1275.