England and Wales Court of Appeal (Civil Division) Decisions
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Farah v Commissioner Of Police For Metropolis [1996] EWCA Civ 684 (9th October, 1996)
URL: http://www.bailii.org/ew/cases/EWCA/Civ/1996/684.html
Cite as:
(1997) 9 Admin LR 601,
[1997] 2 WLR 824,
[1997] 1 All ER 289,
[1998] QB 65,
[1996] EWCA Civ 684
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FARAH v. COMMISSIONER OF POLICE FOR METROPOLIS [1996] EWCA Civ 684 (9th October, 1996)
IN
THE SUPREME COURT OF JUDICATURE
No
CCRTI 96/0603/G
IN
THE COURT OF APPEAL (CIVIL DIVISION)
ON
APPEAL FROM ORDER OF HIS HONOUR JUDGE HARRIS
(Sitting
at Central London County Court
)
Royal
Courts of Justice
Strand
London
WC2
Wednesday
9th October 1996
B
e f o r e:
LORD
JUSTICE PETER GIBSON
LORD
JUSTICE OTTON
LORD
JUSTICE HUTCHISON
-
- - - - -
FARAH
-
v -
COMMISSIONER
OF POLICE FOR THE METROPOLIS
-
- - - - -
(Handed
down transcript prepared by
Smith
Bernal Reporting Limited, 180 Fleet Street,
London
EC4A 2HD
Tel:
0171 831 3183
Official
Shorthand Writers to the Court)
-
- - - - -
MR
A NICOL QC
and
MISS
H WILLIAMS
(Instructed by Deighton Guedall, Islington N1) appeared on behalf of the
Appellant
MR
R SEABROOK QC
and
MR
D MACLEOD
(Instructed by Metropolitan Police Solicitors) appeared on behalf of the
Respondent
-
- - - - -
J
U D G M E N T
(As
Approved by the Court
)
-
- - - - -
Crown
Copyright
LORD
JUSTICE HUTCHISON: This is an appeal by the defendant from the order of Judge
Harris in the Central London County Court on 21st December 1995 refusing to
strike out part of the plaintiff's Statement of Claim.
The
action arises out of an occurrence on 17th July 1994. The case pleaded by the
plaintiff, who is a citizen of Somalia and a refugee and who was aged seventeen
at the time, is that on that date she and her 10 year old cousin were attacked
near their home by some white teenagers, who set a dog on her and injured her.
By a 999 call she summoned police assistance, but the police officers who came
in response, instead of helping her and seeking to detain her attackers,
arrested her without cause, detained her for a time, and charged her with
affray, common assault and causing unnecessary suffering to a dog. She was
released on bail the same day. On 12th January 1995 she appeared to answer the
charges and, no evidence being offered, was acquitted.
The
plaintiff's claim against the Commissioner of Police for the Metropolis in
proceedings began on 13th January 1995, is for damages, including aggravated
and exemplary damages, for inter alia false imprisonment, assault and battery,
and malicious prosecution. These claims, denied by the defendant in his
defence, are accepted as disclosing causes of action.
However,
the plaintiff also included in her Particulars of Claim an allegation that the
conduct of the attending police officers amounted to unlawful racial
discrimination, and it was this that the defendant sought to strike out. It is
necessary to outline the way this claim is pleaded, and in doing so I refer to
the Amended Particulars of Claim (Judge Harris, having dismissed the
defendant's application to strike out, allowed an amendment sought by the
plaintiff). What the plaintiff alleges is this:
She
says that the defendant was the employer of the officers and that, by virtue of
section 32 of the Race Relations Act 1976 he is liable for anything done in the
course of their employment. This allegation is not, however, (subject to a
qualification which will appear from what I say later) now pursued.
Alternatively (this is the amendment) she says they were acting as the
defendant's authorized agents within the meaning of section 32 (2) of the Act.
She contends that the defendant is vicariously liable for the conduct of the
officers. She puts her claim on the basis that she was a person seeking to
obtain the use of services from a person concerned with the provision of
services to the public within the terms of section 20 of the Act, and that the
officers deliberately omitted to provide her with the services she sought or
with services of a like quality or in like manner or on the like terms to
those normally provided by the officers to other members of the public. She
particularises, in support of this assertion, the acts or omissions of which
she says the officers were guilty as follows:
(a) officers
in the employment of the defendant failed to react alternatively chose to
ignore her call for assistance by way of an emergency telephone call to the
police emergency service before the attendance of the said officers;
(b) the
said officers at the scene of her detention and involved with the interview of
the plaintiff failed to investigate her account of events both at the scene of
her apprehension and thereafter;
(c) the
defendant and the officers in his employment failed to afford the protection
accorded victims of crime in like manner to the plaintiff as to white members
of the public.
Then
in paragraph 12 (iv) the plaintiff says that the officers brought the criminal
proceedings against her, on racial grounds, and so treated her less favourably
than they would treat other persons.
All
of this was sought to be struck out as disclosing no cause of action.
Judge
Harris correctly approached the matter on the basis that for the purpose of
deciding such a striking out claim he should consider the pleading and only
accede to the application to strike out if he was satisfied that the impugned
parts of the pleading disclosed no cause of action. He rightly accepted that
if the pleading was arguably good the matter must be left for trial - the
remedy of striking out was available only in a plain and obvious case.
Having
considered each of the arguments advanced by the defendant the judge felt
unable to say that the Race Relations Act claim was unarguable and dismissed
the application. I now consider the arguments as they have been presented
before us on the appeal from the judge's order.
I
begin by referring to those provisions of the Race Relations Act 1976 ("the
Act") and the Police Act 1964 which are material. Part I of the Act defines
discrimination and it is necessary to cite only section 1 (1) (a) which reads:
A
person discriminates against another in any circumstances relevant for the
purposes of any provision of this Act if-
(a) on
racial grounds he treats that other less favourably than he treats or would
treat other persons....
Part
II of the Act deals with discrimination in the employment field. Section 16
headed "Police" provides in subsection (1):
For
the purposes of this Part, the holding of the office of constable shall be
treated as employment -
(a) by
the chief officer of police as respects any act done by him in relation to a
constable or that office;
(b) by
the police authority as respects any act done by them in relation to a
constable or that office.
Part
III of the Act deals with discrimination in other fields, and in that part is
to found section 20, relating to discrimination in the provision of goods,
facilities or services. Its material provisions are as follows:
(1)
It is unlawful for any person concerned with the provision (for payment or
not) of goods, facilities or services to the public or a section of the public
to discriminate against a person who seeks to obtain or use those goods,
facilities or services
(a) by
refusing or deliberately omitting to provide him with any of them; or
(b) by
refusing or deliberately omitting to provide him with goods, facilities or
services of the like quality, in the like manner and on the like terms as are
normal in the first-mentioned person's case in relation to other members of the
public or (where the person so seeking belongs to a section of the public) to
other members of that section.
(2)
The following are examples of the facilities and services mentioned in
subsection (1) -
(a) access
to and use of any place which members of the public are permitted to enter;
(b) accommodation
in a hotel, boarding house or other similar establishment'
(c) facilities
by way of banking or insurance or for grants, loans, credit or finance;
(d) facilities
for education;
(e) facilities
for entertainment, recreation or refreshment;
(f) facilities
for transport or travel;
(g) the
services of any profession or trade, or any local or other public authority.
In
Part IV of the Act, dealing with other unlawful acts, is section 32, headed
"Liability of employers and principals"; it provides:
(1) Anything
done by a person in the course of his employment shall be treated for the
purposes of this Act (except as regards offences thereunder) as done by his
employer as well as by him, whether or not it was done with the employer's
knowledge or approval.
(2) Anything
done by a person as agent for another person with the authority (whether
express or implied, and whether precedent or subsequent) of that other person
shall be treated for the purposes of this Act (except as regards offences
thereunder) as done by that other person as well as by him.
Part
VI of the Act contains general exceptions from Parts II to IV (for example, by
section 41 acts done under statutory authority and by section 42 acts
safeguarding national security).
Part
VIII of the Act relates to enforcement. Section 53 (1) reads:
Except
as provided by this Act no proceedings, whether civil or criminal, shall lie
against any person in respect of an act by reason that the act is unlawful by
virtue of a provision of this act.
Section
57, headed "Claims under Part III provides, as
material:
(1) A
claim, by any person ("the claimant") that another person ("the respondent") -
(a) has
committed an act of discrimination against the claimant which is unlawful by
virtue of
Part
III; or
(b) is
by virtue of section 32 or 33 to be treated as having committed such an act of
discrimination against the claimant,
may
be made the subject of civil proceedings in like manner as any other claim in
tort .....
Section
48 (1) of the Police Act 1964 provides as follows:
The
chief officer of police for any police area shall be liable in respect of torts
committed by constables under his direction and control in the performance or
purported performance of their functions in like manner as a master is liable
in respect of torts committed by his servants in the course of their
employment, and accordingly shall in respect of any such tort be treated for
all purposes as a joint tortfeasor.
There
are in my view two important issues which have to be determined in this case.
The first is whether a police officer comes within section 20 of the Race
Relations Act. The second is whether, if he does, the chief officer of police
for the area in which he serves is answerable in law for any breaches of the
Act which the police officer has committed. The first of these issues is
obviously of fundamental and general importance; the second, while its
resolution in the appellant's favour might be fatal to the plaintiff's claim
under the Act in this case, is unlikely to preclude such claims being advanced
in other cases. This is because, if we were to decide the first issue against
the appellant and the second in his favour, any future plaintiff alleging
racial discrimination against the police would join the officer or officers
said to be the actual offenders. (It would not be possible for the present
plaintiff to do that as the 6 months period within which proceedings are to be
brought has long since expired - see section 68 (2) - unless she can persuade
the court to consider the claim out of time under section 68 (6)). I ventured
to suggest during the argument that such an outcome, while disposing of the
claim in the instant case, would be for the Commissioner a Pyrrhic victory, and
I remain of that view. The provisions of section 48 of the Police Act are, it
seems to me, beneficial to both plaintiffs and the police, for reasons which
are too obvious to need elaboration; and if the police are susceptible to a
claim under the Act, it would be unfortunate if that, like other tortious
claims, could not be brought against the Commissioner. However, such
considerations are only of relevance if the first and crucial issue is decided
against the appellant
and
if there is any room for doubt as to the interpretation of the statutory
provisions bearing on the matter of the Commissioner's vicarious liability. It
is to the first of those questions that I now turn.
Mr.
Seabrook invites us first to consider the scheme of the Act. He makes the
following points:
(a) It
is implicit in section 16 (1) (and indeed section 48 of the Police Act) that
there is no relationship of employer/employee between the chief officer and
constables. This is common ground - it is, as Mr. Nicol for the plaintiff
concedes, well-established that police constables are office-holders not
employees.
(b) Section
53, which is in specific and restrictive terms, prevents proceedings for breach
of the provisions of the Act unless authorised by the Act itself. Section 57
provides the only authorization on which the plaintiff in this case can rely.
The commissioner is not alleged to have personally committed any act of
discrimination and can only be vicariously liable for the constables' acts if
they were acting as his agents with his authority - see section 32 (2): but,
says Mr. Seabrook, section 32 has no application to the commissioner. The
constables were not acting as agents or with the authority of the commissioner,
but were exercising an original authority by virtue of their office. Section
48 does not avail the plaintiff because section 53 prohibits one from looking
outside the provisions of the Race Relations Act.
Mr.
Seabrook also submits that the constables themselves are not within the
enforcement provisions of the Act. If, he says, those provisions do not extend
to the commissioner, it is inconceivable that they should extend to the
constables. He submits that the omission to make special provision, such as
for example is made in relation to Part II of the Act by section 16 indicates
that it was never intended that individual constables should be caught by
section 20.
As
a matter of construction, Mr. Seabrook submits, section 20 does not apply to
police officers performing the duties of their office - they are not providing
services. The acts alleged against them all entail the exercise of discretion
and judgment. What they were engaged on, from the moment the 999 call was
received, was the exercise of their powers of investigation, detection and the
bringing of offenders to justice.
In
this connection Mr. Seabrook referred us to a number of authorities. The first
was
R
v Imm. App. Trib. Ex parte Kassam
[1980] 1 WLR 1037. In that case a question arose as to whether a complaint of
discrimination contrary to the Sex Discrimination Act 1975 was maintainable in
respect of a provision of the Immigration Rules which required the wife or
child of a male student who had been given leave of entry to study to be
admitted for the period for which the husband had been authorized to enter but
contained no corresponding provision in respect of the husband of a female
student. Section 29 of that Act is in terms essentially similar to those of
section 20 of the 1976 Act. It was held that the Secretary of State was not a
person concerned with the provision of facilities to a section of the public.
Stephenson LJ. said, at 1042:
I
am of the opinion that the Secretary of State is not a person concerned with
the provisions of facilities to a section of the public. Section 29 (1) and
(2) repeat, mutatis mutandis, section 2 (1) and (2) of the Race Relations Act
1968 (now repealed and re-enacted in section 20 (1) and (2) of the Act of 1976)
and so are not free from judicial interpretation. But read in their natural
and ordinary meaning they are not aimed at, and do not hit, the Secretary of
State concerned with giving leave to enter or remain in the exercise of his
powers under the Immigration Act 1971. The kind of facilities with which the
sections of the Acts of 1975 and 1976 are concerned is of the same order as
goods and services, and though it may not always be easy to say whether a
particular person (or body of persons) is a person concerned with the provision
of any of those three things to the public or a section of the public and
although a Minister of the Crown or a government department might be such a
person (for instance, in former days the Postmaster General, as Sir David
Cairns suggested in argument), I am clearly of the opinion that the Secretary
of State in acting under the Immigration Act and Rules is not such a person,
and he cannot be held to have unlawfully discriminated against the applicant by
refusing to give him leave to remain here while his wife was a student, or by
refusing to interpret or alter the immigration rule, paragraph 22 of H.C. 79,
which is relevant to this appeal. He is operating in a field outside the
fields in which Parliament has forbidden sex discrimination.
Ackner
LJ. agreeing, said at 1043:
In
my judgment, when the Secretary of State is exercising his discretion in
relation to powers granted to him by the Immigration Act 1971, he is not
providing a facility within the meaning of section 29 of the Act. The word
"facilities" in that section is flanked on one side by the word "goods" and on
the other by the word "services". This suggests to my mind that the word
"facilities" is not to be given a wholly unrestricted meaning but must be
limited or confined to facilities that are akin to goods or services. Section
29 (2) provides examples of the facilities and services mentioned in section 29
(1). These examples support the view which I have expressed above.
Ex
parte Kassam
was distinguished in
Savjani
v IRC
[1981] 1 QB 458, a case which gave rise to the question whether the Inland
Revenue were concerned with the provision of services under section 20 of the
1976 Act. This court held that they were and in the course of his judgment
Lord Denning MR said at 466:
I
would only mention
Reg.
v Immigration Appeal Tribunal, Ex parte Kassam
[1980] 1 WLR 1037, which was before another division of this court. In that
case discrimination was alleged against the immigration authorities. The court
held that, in dealing with people coming in under the immigration rules, the
immigration authorities were not providing "services" within the meaning of the
Act. This case is very different. The revenue are providing "services" in
regard to relief from tax or repayment of tax. Those services come within the
provisions of the Act. If there is discrimination in the carrying out of those
services, it is unlawful.
Templeman
LJ. said at 466:
The
Race Relations Act 1976 undoubtedly poses and is continually posing a large
number of administrative difficulties both for the Crown and for large
organisations; and in the present instance the Inland Revenue are to be treated
with sympathy rather than criticism. Undoubtedly their task has been made more
difficult by the Act if it applies to them. On the other hand, the Act was
brought in to remedy very great evil. It is expressed in very wide terms, and
I should be very slow to find that the effect of something which is
humiliatingly discriminatory in racial matters falls outside the ambit of the
Act. Nevertheless, of course, one must look at the Act and construe its
provisions.
A
little later he said at 467:
As
Mr. Moses on behalf of the revenue submitted, the board and the inspector are
performing duties - those duties laid upon them by the Act which I have
mentioned - but, in my judgment, it does not necessarily follow that the board
and the inspector are not voluntarily, or in order to carry out their duty,
also performing services for the taxpayer. The duty is to collect the right
amount of revenue; but, in my judgment, there is a service to the taxpayer
provided by the board and the inspector by the provision, dissemination and
implementation of regulations which will enable the taxpayer to know that he is
entitled to a deduction or a repayment, which will entitle him to know how he
is to satisfy the inspector or the board if he is so entitled, and which will
enable him to obtain the actual deduction or repayment which Parliament said he
is to have. For present purposes, in my judgment, the inspector and the board
provide the inestimable services of enabling a taxpayer to obtain that relief
which Parliament intended he should be able to obtain as a matter of right
subject only to proof.
At
468 he said:
On
behalf of the revenue Mr. Moses submitted that the Race Relations Act 1976 does
not apply to the Inland Revenue at all, but he naturally and wisely recoiled
from the suggestion that the inspector of taxes might decline to interview a
taxpayer if the taxpayer were coloured. He makes forcibly the submission that,
when the board decides for sensible reasons that a higher standard of proof is
required from taxpayers who come from the Indian sub-continent, the board are
not providing a service to that taxpayer; they are carrying out their duty to
the Crown. As I have already indicated, it does not seem to be that the two
concepts are mutually exclusive. The board and the inspectors perform their
duty and carry out a service and, in my judgment, it is a service within the
meaning of section 20 of the Race Relations Act 1976.
Both
these cases were considered by the House of Lords in
In
re Amin
[1983] 2 AC 818 where an issue was whether the grant of special vouchers under
the special voucher scheme introduced by paragraph 38 of HC 79 came within
section 29 of the 1975 Act. It was held that by the majority that it did not.
The contention that
Ex
parte Kassam
was wrongly decided was rejected by the majority. In the course of his speech
Lord Fraser said, at 834:
My
Lords, I accept that the examples in section 29 (2) are not exhaustive, but
they are, in my opinion, useful pointers to aid in the construction of
subsection (1). Section 29 as a whole seems to me to apply to the direct
provision of facilities or services, and not to the mere grant of permission to
use facilities. That is in accordance with the words of subsection (1) and it
is reinforced by some of the examples in subsection (2).... Example (g) seems
to me to be contemplating things such as medical services, or library
facilities, which can be directly provided by local or other public
authorities. So in
Savjani,
Templeman LJ. took the view that the Inland Revenue performed two separate
functions - first a duty of collecting revenue and secondly a service of
providing taxpayers with information. He said at page 467:
[and
Lord Fraser quotes the second of the passages I have cited from the judgment of
Templeman LJ, save for the last sentence].
In
so far as that passage states the ground of the Court of Appeal's decision in
that case I agree with it. If Lord Denning M.R., at pages 465-466, intended to
base his decision on wider grounds, I would respectfully disagree with him. In
the present case the entry clearance officer in Bombay was in my opinion not
providing a service for would-be immigrants; rather he was performing his duty
of controlling them.
Counsel
for the appellant sought to draw support for his contention from section 85 (1)
of the Act of 1975 which provides:
"This
Act applies - (a) to an act done by or for purposes of a Minister of the Crown
or government department, or (b) to an act done on behalf of the Crown by a
statutory body, or a person holding a statutory office, as it applies to an act
done by a private person".
That
section puts an act done on behalf of the Crown on a par with an act done by a
private person, and it does not in terms restrict the comparison to an act
of
the same kind
done
by a private person. But in my opinion it applies only to acts done on behalf
of the Crown which are of a kind similar to acts that might be done by a
private person. It does not mean that the Act is to apply to any act of any
kind done on behalf of the Crown by a person holding statutory office. There
must be acts (which include deliberate omissions - see section 82 (1)), done in
the course of formulating or carrying out government policy, which are quite
different in kind from any act that would ever be done by a private person, and
to which the Act does not apply.
Mr.
Seabrook places particular reliance on Lord Fraser's concluding words in this
citation. However, he was there dealing with an argument that section 85 of
the 1975 Act (the equivalent of section 75 of the 1976 Act) provided support
for the argument based on section 29 (section 20). I shall consider in a
moment what is the significance of section 75 of the Race Relations Act but
before doing so I should say that in my view the most important feature of Lord
Fraser's speech in the context of the present case is his approval of the
passage in Templeman LJ's judgment in
Savjani.
Section
75 of the Act is headed "Application to the Crown etc" and its material
provisions are as follows.
(1)
This Act applies -
(a) to
an act done by or for purposes of a Minister of the Crown or government
department; or
(b) to
an act done on behalf of the Crown by a statutory body, or a person holding a
statutory office,
as
it applies to an act done by a private person.
(2) Parts
II and IV apply to -
(a) service
for purposes of a Minister of the Crown or government department, other than
service of a person holding a statutory office; or
(b) service
on behalf of the Crown for purposes of a person holding a statutory office or
purposes of a statutory body; or
(c) service
in the armed forces,
as
they apply to employment by a private person, and shall so apply as if
references to a contract of employment included references to the terms of
service.
(3) Subsections
(1) and (2) have effect subject to section 16.
Mr.
Seabrook relies on the passage from Lord Fraser's speech cited above as
authority that the relevant act must be similar to an act done by a private
person - and certainly that is what Lord Fraser says, though it might be argued
that his observations are obiter. Mr. Nicol, while not accepting that what
Lord Fraser said is applicable to the present case, argues that the assistance
and protection that the plaintiff sought from the police were similar to acts
which might have been performed by a private person - for example a security
firm - and that accordingly Lord Fraser's test is satisfied in this case.
Mr.
Nicol also submits that it is arguable that section 75 applies to police
constables since theirs is a service on behalf of the Crown for the purposes of
a person holding statutory office or of a statutory body, and that section 32
(included in Part IV to which section 75 (2) refers) applies to constables'
service as it applies to employment by a private person and as if reference to
contracts of employment included reference to their terms of service.
Acknowledging that this is, as he puts it, "a somewhat strained construction",
Mr. Nicol points out that unless the police are within section 75 (2) (and, he
might have added, section 75 (1)) section 75 (3) makes no sense. Mr.
Seabrook's response to this is that Part III of the Act is not referred to in
section 75 (2). Mr. Nicol in turn suggests that the explanation for this
omission is that Part III of the Act is not concerned with employment.
These
arguments are not easy to resolve, and the statutory provisions are by no means
clear. However my conclusion is that it is arguable that the limited service
for which the plaintiff looked to the police comes within Lord Fraser's test.
As to Mr. Nicol's second submission, I agree that it is strained and I consider
that the most that can be said is that section 75 (3) shows that section 75 (1)
and (2) might easily apply to the police, not that they do so apply.
Mr.
Seabrook, in further support of his contention that it is plain that section 20
has no application to a police officer performing his duties, advanced a
powerful argument based on considerations of public policy. He submitted that
the law has consistently recognized the need to protect those involved in the
investigation, preparation for and giving of evidence in criminal and civil
proceedings from susceptibility to actions for damages because of the danger
that this would impede or inhibit the effectiveness of legal process. It is,
he suggested, unthinkable that Parliament would, incidentally as it were, have
infringed such well established interests. In support of this submission he
referred us to a number of authorities, including
Marrinan
v Vibart
[1963] 1 QB 234 and 529 (a case which reaffirmed the absolute immunity of a
witness from any form of civil action in respect of his evidence in judicial
proceedings and any acts done in the preparation of that evidence);
Hill
v Chief Constable of West Yorkshire
[1989] AC 53 (where it was held that there was no general duty of care owed by
the police to individual members of the public in respect of the detention and
apprehension of criminals);
Calveley
v Chief Constable of Merseyside
[1989] AC 1228, (where it was held that officers investigating allegations
against other police officers owed no duty of care to the subjects of the
investigation on the grounds, inter alia, that it would be contrary to public
policy to recognize such a duty); and
Alexandrou
v Oxford
[1993] 4 All ER 328 (where it was held that it would not be in the public
interest to impose on the police a duty of care towards the shopkeeper where
they had attended as a result of but (it was said) negligently investigated a
burglar alarm call). These and other cases to which Mr. Seabrook referred us
do, of course, exemplify a well established strand of public policy, the
reasons for which are readily understandable. As Lord Bridge said in
Calveley
(page 1238):
Where
no action for malicious prosecution would lie, it would be strange indeed if
an acquitted defendant could recover damages for negligent investigation.
Finally, all other considerations apart, if would plainly be contrary to public
policy, in my opinion, to prejudice the fearless and efficient discharge by
police officers of their vitally important public duty of investigating crime
by requiring them to act under the shadow of a potential action for damages for
negligence by the suspect.
Mr.
Seabrook, however, readily conceded that it was open to Parliament to legislate
in a manner which impinged upon such public policy immunity. The value of
these authorities, concerned as they are with whether in given circumstances a
common law duty of care should be held to exist, lies in the assistance they
may afford in interpreting statutory provisions the effect of which is
ambiguous or otherwise unclear. They certainly do not preclude the acceptance
of the plaintiff's contentions, if the words of the statute are clear.
The
same may be said of Mr. Seabrook's submission based on what I will call
inconvenience, expense and difficulty. He points to the provisions of Part VII
of the 1976 Act relating to the administration of questionnaires, to the need
for extensive discovery, to the necessity for the judge in the County Court to
sit with assessors and related matters. I do not find it necessary to make
specific reference to the relevant provisions, since I accept Mr. Nicol's
submission that such considerations cannot be decisive of the question whether
on its proper construction the Act applies to some aspects of police
activities. For the same reason I do not propose to rehearse Mr. Nicol's
submissions in support of his contention that the problems are much less
formidable than the appellant suggests they are. This case turns not on such
considerations but upon the proper construction of the Act in the light of the
directly relevant authorities.
In
my view Mr. Nicol is correct when he argues that, prima facie, section 20 is
wide enough to apply to at least some of the acts undertaken by police officers
in the performance of the duties of their office. The crucial words - to be
interpreted of course in the light of the examples given, but not on the basis
that the examples are definitive of the circumstances to which the section can
apply - are
...any
person concerned with the provision (for payment or not) of .... services to
the public.
I
accept Mr. Nicol's contention that these words are entirely apt to cover those
parts of a police officer's duties involving assistance to or protection of
members of the public. Mr. Nicol emphasised that it is in regard to that
aspect of the officers' duties that the claim in the present case is advanced -
it is not suggested that pursuing and arresting or charging alleged criminals
is the provision of a service. What is said is that the service sought by the
plaintiff was that of protection and that she did not, because of her race,
obtain the protection that others would have been afforded. It seems to me
that that is no less the provision of a service than is the giving of
directions or other information to a member of the public who seeks them.
Turning
to the examples in subsection (2) I find nothing expressly or impliedly to
exclude police officers; and in my view they can properly be regarded as
falling within subparagraph (g) - "the services of any profession or trade, or
any local or other public authority".
Furthermore,
I find in the case of
Savjani
support for the conclusion that the police, in some aspects of their
activities, fall within the Act. The passage in Templeman LJ's judgment
approved in
Amin
shows that there is no reason why a person performing a public duty may not
also be providing a service, and strongly supports the plaintiff's arguments.
The first paragraph of his judgment helpfully states and contrasts some of the
conflicting policy considerations and emphasises the necessity, notwithstanding
those matters, to construe the Act. The last of the paragraphs I have cited
from his judgment could easily be adapted to pose an example in as stark terms
but concerning a member of the public and police officers.
Finally,
I do not find in the other provisions of the Act relied upon by Mr. Seabrook
anything to indicate that the prima facie clear words of section 20 should not
apply to police officers. In my view Mr. Nicol is correct to contend that
section 16 certainly does not have that effect, since it is explicable on the
simple basis that, since police officers are not employed but hold their office
under the Crown, some such provision was necessary if they were to be afforded
the protection of Part II, concerned as it is with discrimination in the
employment field. I am, moreover, impressed by Mr. Nicol's argument that of
more significance is the fact that, whereas Part V of the Act contains
specified exceptions to its provisions, some of which are clearly based on
public policy grounds, there is no such specific exception of the police.
Taking
the view I do on construction, I do not consider that there is any basis for
entertaining Mr. Seabrook's policy arguments. I would observe, however, that
(as the judgment of Templeman LJ. recognizes) there are in any event powerful
arguments on each side of the public policy issue and I do not find the spectre
of claims of racial discrimination against the police, with the inconvenience
and expense that that may involve, to be more disturbing than the prospect that
a member of the public who, seeking assistance in dire need, has been the
subject of racial discrimination, should be without remedy.
The
question that remains to be considered is whether, under the provisions of
sections 53 and 57 of the Act, such a claim can prima facie be advanced by an
individual plaintiff against the police officers allegedly guilty of
discrimination (it will be recalled that I am not here considering the question
of vicarious liability which arises in this case by reason of the fact that
only the Commissioner has been made a defendant). This depends on whether a
claim of discrimination by a member of the public against a police officer
falls within section 57 (1). In my view it plainly does, for reasons too
obvious to require further discussion.
Before
turning to the issue of vicarious liability I wish to say that in this case I
am doubtful, as judges have been in many others involving striking out, of the
wisdom of deciding questions of the sort we have been asked to determine at
this stage, before the facts have been established. Mr. Nicol referred us to
Lonrho
v Tebbit
[1991] 4 All ER 973 where Sir Nicholas Browne-Wilkinson VC emphasised the
virtues of deciding difficult questions of law in a new and developing field on
the basis of the true facts once they are ascertained. It is true that the
racial discrimination claim in the present case would probably, if allowed to
proceed, increase the cost and difficulty of the hearing or hearings. Against
that, however, are the considerations (i) that its determination now, on the
basis of assumed and rather generally pleaded facts which have not even been
the subject of a request for particulars, would not dispose entirely of the
claim even if the decision were adverse to the plaintiff; and (ii) that it
might turn out, when the facts were investigated, that no basis for this
contentious claim existed. It would in my view have been better for the
difficult questions to which this application and appeal give rise to be
decided in the light of established facts rather than on the basis of the
assumed truth of the pleaded facts.
The
judge found the issue of vicarious liability the most difficult of those he had
to decide, and I agree that it raises difficult problems.
If
one begins with section 48 of the Police Act, and considers it apart altogether
from the restrictive provisions of the 1976 Act or any provisions of that Act
which might be invoked as establishing vicarious liability on the part of the
Commissioner, the position is plain beyond argument - the Commissioner is
answerable for the actions of the officers. This is because -
(1) Section
48 expressly provides that the chief officer of police is liable for torts
committed by constables under his direction and control in the performance or
purported performance of their duties as though they were committed by his
servants in the course of their employment; and that he shall be treated for
all purposes as a joint tortfeasor.
(2) An
act of racial discrimination within section 20 is a statutory tort. If there
were any doubt as to that it would be dispelled by the concluding words of
section 57 (1) "... in like manner as any other claim in tort".
It
follows that, if the appellant's argument that the Commissioner is not
vicariously liable in respect of this claim is to succeed it must be on the basis
(1) that
there is in the 1976 Act some provision which precludes the plaintiff's relying
on section 48 of the Police Act; and
(2) that
there is not in the 1976 Act any other provision which, on the assumed facts of
this case, justifies a claim based on vicarious liability of the Commissioner.
There
is no doubt that the words of section 53 (1) are prima facie very restrictive.
If
the prohibition is considered in isolation from the introductory qualification,
it is that -
....
no proceedings, whether civil or criminal, shall lie against any person in
respect of an act by reason that the act is unlawful by reason of a provision
of this Act.
Is
this a prohibition affecting both types of claim and identity of parties, or
only the former? If seems to me inescapable that as a matter of strict
construction it applies to both. It would have been perfectly possible to
frame the prohibition in terms which did not have that effect (for example by
saying "... no proceedings ... shall be brought in respect of an act etc").
I
cannot accept Mr. Nicol's contention that the section is not expressed in clear
language.
If
(relying on the introductory words to section 53) one turns to section 57 (1)
there is in my view support for this construction. That subsection draws a
distinction between the respondent who has himself committed an act of
discrimination and someone who by virtue of sections 32 or 33 is to be treated
as having committed such an act. If the section 53 prohibition were one which
did not operate to exclude claims against persons vicariously liable for the
acts of the respondent, the reference to section 32 and 33 would be
unnecessary. Thus, to take an example removed from the facts of this case, it
is in my view plain that a claim cannot be brought by virtue of section 57
against an employer in respect of his servant's discriminatory act save in
reliance on section 32 (1) (or 33). Ordinary vicarious liability
apart
from the Act does not suffice; it is only to the extent that the Act permits
vicarious liability claims that they can be maintained.
Part
of Mr. Nicol's argument involved the assertion that it cannot have been the
intention of Parliament to exclude the normal adjectival or parasitic operation
of associated legislation such as the Police Act: so he seeks to draw a
distinction between ordinary vicarious liability - i.e. that arising simply as
an incident of relationship or authority conferred - and vicarious lability
imposed (as in section 48) by statute. The Police Act was, he says, part of
the legislative background against which the 1976 Act was passed. In
advancing this argument he places particular emphasis on the concluding words
of section 48 of the Police Act.
....
and accordingly shall in respect of any such tort be treated for all purposes
as a joint tortfeasor.
However,
since the term joint tortfeasor embraces the agent who commits a tort on behalf
of his principal and the employer liable in respect of his employee's torts, I
cannot accept that there is any valid distinction in scope between the common
law relationship of principal and agent and this statutory relationship.
A
further variation of the argument is that section 48 characterises the imposed
relationship in terms not of principal and agent but of master and servant, and
it is in terms of that assumed relationship that they are for all purposes to
be treated as joint tortfeasors. Accordingly, says Mr. Nicol, there is, by
virtue of the deemed relationship a basis for saying that the Commissioner
falls within section 32 (1). The difficulty about this is that the
Commissioner and the police officer are
not
employer and employee, since deeming or treating persons as being in a
relationship is, so far from clothing them with that relationship, rather an
acknowledgment that they are not in that relationship. They do not therefore
fall within section 32 (1).
Then
Mr. Nicol submits that the relationship is in any event one of agency and that
section 32 (2) applies. He points to the fact that by virtue of section 4 of
the Metropolitan Police Act 1829 the Commissioner has the direction and control
of the force for his area (compare the equivalent provisions in section 5 (1)
of the Police Act 1964). He also relies on case law which recognizes that a
chief officer commands the officers of his force. This is common ground.
However,
Mr. Seabrook, contesting the notion that a constable is to be regarded as the
agent of the chief officer of police, relies on the decision in
Fisher
v Oldham Corporation
[1930] 2 KB 364. The question at issue is that case was whether the police
appointed by the watch committee, in effecting an unlawful arrest, were acting
as the servants or agents of the corporation so as to render it liable to an
action for false imprisonment. It was held that they were not, and in the
course of his judgment McCardie J. said at 371:
Prima
facie .... a police constable is not the servant of the borough. He is a
servant of the State, a ministerial officer of the central power, though
subject in some respects to local supervision and local regulation.
Later
he cited with approval a passage from the judgment of the High Court of
Australia in
Enever
v The King
[1906] 3 Commonwealth L.R. 969 in which Griffith CJ said at 975, 977:
At
common law the office of constable or peace officer was regarded as a public
office, and the holder of it as being, in some sense, a servant of the Crown.
Now,
the powers of a constable, qua peace officer, whether conferred by common or
statute law, are exercised by him by virtue of his office, and cannot be
exercised on the responsibility of any person but himself..... A constable,
therefore, when acting as a peace officer, is not exercising a delegated
authority, but an original authority, and the general law of agency has no
application.
McCardie
J. concluded his judgment thus at 377:
The
police, in effecting that arrest and detention, were not acting as the servants
or agents of the defendants. They were fulfilling their duties as public
servants and officers of the Crown sworn to "preserve the peace by day and by
night, to prevent robberies and other felonies and misdemeanours and to
apprehend offenders against the peace". If the local authorities are to be
liable in such a case as this for the acts of the police with respect to felons
and misdemeanours, then it would indeed be a serious matter and it would
entitle them to demand that they ought to secure a full measure of control over
the arrest and prosecution of all offenders. To give any such control would,
in my view, involve a grave and most dangerous constitutional change. For the
reasons given, there must be judgment for the defendant.
This
case is commonly relied upon for the proposition that no relationship of
principal and agent exists. However, Mr. Nicol referred us to a passage in a
text book entitled Civil Actions Against the Police by Richard Clayton and Hugh
Tomlinson which, at page 39, argues as follows:
It
is submitted, however, that police officers must now be regarded as agents of
their chief officer. The contrary dicta in
Fisher
v Oldham
are, strictly, obiter as the case was directly concerned only with the
relationship of master and servant. In any event, the position has now,
arguably, been altered by the effect of section 5 of the Police Act 1964 which
places a police force under the direction and control of the chief constable.
Such direction and control suggests a subordination of the original authority
of individual constables to that of the chief constable. This contention is
supported by the case of
Hawkins
v Bepey
in which it was held that a police officer instituting a prosecution was, in
effect, doing so "on behalf of" his chief constable.
Hawkins
v Bepey
[1980] 1 WLR 419, however, was a case of express authority, where a police
officer had under instructions issued by the chief constable laid information
on behalf of the police force. On his death a question arose as to whether the
proceedings had lapsed. The court held that the real prosecutor was the chief
constable or the force under his direction and control and that the proceedings
had not lapsed. Bearing in mind the rather special facts and the fact that
Watkins J. in his judgment expressly held that the officer, in carrying out the
instructions of the chief constable whose orders he had to obey, was acting in
a representative capacity, I do not consider that this decision is in conflict
with
Fisher's
case.
In
my view there is no valid ground for contending that the officers in the
instant case were acting as the agents of the Commissioner.
As
some of the observations I have already made must have shown, I should like to
be able to hold that there exists here the necessary vicarious liability to
entitle the plaintiff to maintain against the Commissioner the action for
racial discrimination which, on the basis of the facts pleaded in the
Particulars of Claim, and for present purposes assumed to be true, I have
accepted that she would have been entitled to pursue against the officers
themselves. But however the argument is put, I can find no valid ground for
holding that such a claim is maintainable against the Commissioner. On this
part of the case, moreover, it cannot be and is not suggested that further
elucidation of the facts might disclose circumstances (such as existed in
Bepey)
establishing express authorization.
Accordingly,
while holding that a claim for racial discrimination under section 20 is, in
certain circumstances, maintainable against the police, I would allow this
appeal on the second ground because the claim against the Commissioner is
defeated by the prohibition in section 53. That part of the claim must
accordingly, in my view be struck out. I should add that, had I taken a
different view on the vicarious liability point, I should nevertheless have
favoured striking our the concluding sentence of the passage I have quoted from
paragraph 12 (iv) of the Particulars of Claim, which in my view clearly goes
beyond anything that could fall within section 20. Moreover it also overlaps
an existing claim in the action.
LORD
JUSTICE OTTON: I have had the advantage of reading in draft the judgment of
Hutchison LJ. I agree with his analysis, reasoning and conclusions. I only
wish to add a few observations by way of emphasis.
Like
Templeman LJ in Savjani's case (supra) I should be slow to find that the effect
of something which is humiliatingly discriminatory in racial matters falls
outside the ambit of the Act. I accept that the police officers perform duties
in order to prevent and detect crime and to bring offenders to justice. They
are also vested with powers to enable them to perform those duties. While
performing duties and exercising powers they also provide services in providing
protection to the victims of crimes of violence.
Thus
applying Templeman LJ's reasoning with regard to the position of the police,
the two concepts are not mutually exclusive. In ex parte Kassam (supra) the
Entry Clearance Officer in Bombay was not providing a facility to intending
immigrants when he performed the act complained of; he was solely performing
his duty of controlling them. Ackner LJ in Kassam considered that "the word
"facilities" ..... is flanked on one side by the word "goods" and on the other
by the word "services". This suggests to my mind that the word "facilities" is
not to be given a wholly restricted meaning but must be limited or confined to
facilities that are akin to goods or services". In my view the provision of
services of protection are akin to the provision of facilities (if not goods).
Given the dual role of a policeman I can see no reason why he is not performing
those services within S.20.
I
am unable to accept the submissions of Mr Robert Seabrook QC that Public Policy
requires that Part III of the Act should not apply to the Police at all, not
even when they are providing a service. He (like Counsel in Savjani) naturally
and wisely shied away from the suggestion that a policeman might with impunity
decline to investigate a complaint or to protect a person from violence on
account of his or her colour. If an ambulance person and police officer
attended at a scene of a road accident and they deliberately withheld medical
services on the ground of a victim's race it would be illogical for the former
to be guilty of an act of discrimination and for the latter to be immune from
suit, criminal or civil.
In
my judgment if it was the intention of the Parliament to provide such immunity
it would have expressly said so. In such a sensitive area as relations between
the ethnic minorities and the police it would be to my mind surprising that
Parliament would have countenanced such an exclusion from the ambit of the Act
or allowed immunity to be inferred by the Courts as a matter of construction.
Moreover, Part VI of the Act contains specific exceptions to its provisions,
reflecting in some instances Public Policy (see S.42). It is significantly
silent on an exception for the Police, and more so for individual police
officers. To my mind the examples of facilities and services in S.20(2) (and
in particular at (g)) are wide enough to accommodate (and so not exclude) the
services of protection for individuals.
Similarly
I cannot accept that such an immunity can be properly brought in by a sidewind
on the interpretation of S.75(1) contended for by Mr Seabrook. Lord Fraser in
Amin
(supra pp 834-5) drew a distinction between acts done on behalf of the Crown
which are of a kind similar to acts that might be done by a private person and
acts done by a person holding statutory office in the course of formulating or
carrying out government policy, the latter being quite different in kind from
any act that would ever be done by a private person. The assertion in the
pleading is that officers failed to react to the plaintiff's emergency
telephone call, to investigate her account at the scene, and to afford her
protection - all on account of her colour.
These
acts (or services) which the plaintiff sought from the police were, to my mind,
acts which might have been done by a private person. The second category
envisaged by Lord Fraser covers those acts which a private person would never
do, and would normally only ever be performed by the police, eg gaining
forcible entry into a suspected drugs warehouse. Here the officers would be
carrying out government policy to which the Act would not apply. Moreover,
they would be performing duties in order to prevent and detect crime and
exercising their powers to enable them to perform those duties.
On
this analysis I do not consider it necessary to address Mr Nicol's more complex
argument based on S.75(2).
I
would therefore find against the Appellant on the first issue.
I
am unable to accept the Respondent's submissions on the second issue. I am not
persuaded that the Chief Officer of Police for an area which he serves is
vicariously liable for an act of discrimination by one of his officers who on
racial grounds has treated a person less favourably than he treated or would
have treated other persons. It is engrained in the law of the Constitution
that police constables are office holders; there is no relationship of employer
and employee. In order to provide a remedy to a police officer who is
discriminated against in the field of employment (in Part II) the Act has a
special provision in S.16. S.53 has the effect of restricting proceedings for
breach unless authorised by the Act. The sole authorisation is found in S.57.
The combined effect of these two sections, in my view, is to exclude the
plaintiff from the benefit of S.48 Police Act.
Thus
the plaintiff can only succeed against the Commissioner if she can establish
either that he personally committed the alleged act of discrimination (which is
not alleged) or that he is vicariously liable under S.32(1) or (2). subsection
(1) expressly provides that anything done by a person "in the course of his
employment" shall be treated ... as done by his employer etc". This provision
cannot be applied to the Commissioner as he is not an employer and the police
constable is not an employee (except as a 'deemed employee' under Part II
only). By Sub-section (2) anything done by a person 'as an agent for another
person with the authority (whether express or implied etc) of that other person
shall be treated --- as done by that other person".
In
my view the concept of principal and agent is inimical to the status of a
police constable. McCardie J in Fisher v Oldham Corporation 1930 2 KB 364 at
p. 372 cited with approval the statement of Griffith CJ in Enever v The King
1906
3 CLR 969 :
"Now,
the powers of a constable, qua peace officer --- are exercised by him by virtue
of his office, and cannot be exercised on the responsibility of any person but
himself ---. A constable, therefore, when acting as a peace officer, is not
exercising a delegated authority, but an original authority, and the general
law of agency has no application".
I
am prepared to accept that these observations may be strictly obiter as the
case was concerned only with the relationship of master and servant. However,
with respect to the learned authors of Clayton and Tomlinson 'Civil Actions
against the Police', I do not share their view that the effect of S.5 Police
Act which places a police force under the 'direction and control' of the Chief
Constable (or Commissioner) has the effect of changing the special status of a
police constable or of subordinating his original authority to that of the
Chief Constable. In reaching this conclusion I have considered Hawkins v Bepey
1980 1 WLR 419 which to my mind is primarily concerned with express authority,
that the police officer originally instructed was acting in a representative
capacity, and that there was a continuing authority which did not lapse on his
death.
In
my judgment the plaintiff in the present case could only bring herself within
S.32(2) if she were able to prove that a police constable acted as he allegedly
did on the express, or implied authority of a superior officer. In which case
the act precedent or subsequent would then be treated as done by that superior
officer as well as by the constable. She does not allege this.
I
too consider it unsatisfactory that the Court should be asked to determine such
fundamental issues on the basis of the vague and unparticularised allegations
in the Particulars of Claim rather than within a matrix of specific and
detailed findings of fact. However, I am unable to say that for this reason
the amendment (with some judicious re-drafting) should not be allowed as on its
fact it is arguable for the reasons given.
Accordingly,
I would dismiss the appeal on the first issue and allow the appeal on the
second issue with the result that the amendment should be struck out in its
entirety.
LORD
JUSTICE PETER GIBSON: I agree with both judgments.
ORDER:1.
Appeal allowed.
2.
Those parts of the summons and particulars of claim identified in the
defendant's notice of application dated 29th August 1995 be struck out.
3.
The order granting the plaintiff leave to amend her particulars of claim be
discharged by refusing the plaintiff's application for leave.
4.
Two-thirds of the defendants costs of the hearing of 21st December 1995 be paid
by the plaintiffs. Such costs to be taxed if not agreed, but not to be enforced
without leave of the Court.
5.
Legal aid taxation of the plaintiffs costs.
6.
Application for leave to appeal to the House of Lords by the plaintiff be
granted.
7.
There be a stay of proceedings pending the time for lodging of an appeal to the
House of Lords and if lodged, thereafter until determination of such an appeal.
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