Durrant v Chief Constable of Avon & Somerset Constabulary

In a race-discrimination claim against the police, the statutory burden-of-proof analysis requires two distinct stages. The claimant must first prove facts from which a reasonable court could conclude, in the absence of an adequate explanation, that discrimination occurred. The respondent must then prove that the treatment was in no sense on racial grounds. A procedural default preventing police officers from giving evidence may be decisive at the second stage, because the respondent may be unable to discharge that burden. The statutory approach applies to unconscious as well as conscious racial stereotyping. However, an appellate court should not determine a new allegation of discrimination which was not pleaded and which the respondent had no fair opportunity to meet.

The appellant, a mixed-race woman, brought race-discrimination proceedings against the respondent police force concerning her arrest and detention in June 2009 and her later attendance for voluntary interview. HHJ Seys Llewellyn QC, sitting in the County Court for the race claim, found two acts of unlawful discrimination but rejected further allegations and awarded £4,950. The appellant appealed on liability and sought permission to appeal on damages.

The appeal concerned whether the judge had applied the burden-of-proof mechanism in section 57 ZA of the Race Relations Act 1976 to three further allegations: police laughter during transport, delay in providing toilet facilities, and different treatment at interview. The central issue was whether the facts required a prima facie finding and, if so, whether the police had proved a non-racial explanation.

1. Disposition. The appeal on liability was allowed in part. A further act of race discrimination was established in relation to the delay by PS Thorpe in responding to the appellant’s requests to use a toilet. The finding was that the discrimination resulted from unconscious racial stereotyping. The appeals concerning the alleged laughter in the police van and the different treatment at the later interview were dismissed.
2. Section 57 ZA of the Race Relations Act 1976 requires a two-stage analysis. First, the claimant must prove primary facts from which a reasonable court could conclude, in the absence of an adequate explanation, that an unlawful act of discrimination occurred. The court must assume at that stage that there is no adequate explanation. Secondly, the respondent must prove on the balance of probabilities that the treatment was in no sense whatsoever on racial grounds. The respondent’s explanation must be adequate, and cogent evidence would normally be expected where the relevant facts are within its possession.
3. The trial judge had not applied that structured analysis. His reliance on the general principle concerning adverse inferences from a missing witness, and his general review of the evidence, did not address the distinct statutory burden under section 57 ZA.
4. The toilet allegation satisfied the first stage. The appellant had made four requests, had been detained without access to a toilet for a considerable period, and PS Thorpe had passed on only one request. At the second stage, the police had no admissible evidence from PS Thorpe capable of explaining the delay. The procedural order excluding police witness statements therefore meant that the respondent had not discharged the statutory burden.
5. The statutory provision did not create a presumption that discrimination was conscious and deliberate. The circumstances supported the conclusion that the additional discrimination was unconscious racial stereotyping, consistently with the judge’s findings concerning the other discriminatory acts.
6. The allegation concerning laughter was not pleaded as a distinct discriminatory act. It was raised for the first time on appeal, so fairness required its rejection. The allegation concerning the later interview did not pass the first-stage threshold because the difference in treatment was satisfactorily explained by the parties’ different presentation and circumstances, rather than race.
7. The court granted permission to appeal on quantum. Unless damages were agreed, the parties were directed to make written submissions on quantum according to the timetable stated at paragraph [56].

• Court of Appeal (Civil Division) — The court allowed the liability appeal in part, substituted a finding of one further act of race discrimination, granted permission to appeal on quantum, and directed written submissions unless damages were agreed: [2017] EWCA Civ 1275.
• High Court and County Court — HHJ Seys Llewellyn QC decided the claim at first instance under [2014] EWHC 2922 (QB). He found two acts of unlawful race discrimination, rejected the further allegations, and awarded £4,950 in damages.