ON APPEAL FROM CENTRAL LONDON COUNTY COURT
HIS HONOUR JUDGE COLLINS CBE
WO014375, CL209366 & CL352464
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE MOSES
| Mr S DEMAN
|- and -
|THE COMMISSION FOR EQUALITY AND HUMAN RIGHTS & OTHERS
Mr Robin Allen QC and Mr Daniel Dyal (instructed by EHRC, Corporate Law & Governance) for the Respondents
Hearing date: Tuesday, 26 October 2010
Crown Copyright ©
Lord Justice Sedley :
This is the judgment of the court.
Should the judge have sat with lay assessors?
(4) In any proceedings under this Act in a designated county court or a sheriff court the judge or sheriff shall, unless with the consent of the parties he sits without assessors, be assisted by two assessors appointed from a list of persons prepared and maintained by the [Minister], being persons appearing to the [Minister] to have special knowledge and experience of problems connected with relations between persons of different racial groups.
The background to Parliament passing section 67(4) and the language of section 67(4) demonstrate that the court was not intended to have a wide discretion as to whether to use the assistance of assessors. Furthermore, the persons to be appointed as assessors are not scientists or seamen with special expertise in the true sense of that term, but ordinary lay people who have a particular experience in life, an experience which, if it is to be of any real assistance to a judge, involves being able to assess the likelihood of whether some conduct or another is racially motivated. Their expertise (if that is what it should be called) embraces assessing the implications of factual situations, and assisting in reaching a conclusion as to whether racism has played a part. That in our view points to it being the intention of Parliament that in race relations cases judges were to be assisted by assessors in the broadest sense of helping them evaluate the evidence in the area of race relations. The fact that an assessor may be involved in the fact finding role, whether it be of primary fact or by way of drawing inferences from the primary facts, does not mean that the assessor is actually deciding the facts. The ultimate decision has to be for the judge, but section 67(4) requires the judge to use the assistance of assessors unless (as the section provides) the parties otherwise agree.
Was the claim sufficiently pleaded?
"The bare facts of a difference in status [e.g. race] and a difference in treatment only indicate a possibility of discrimination only indicate a possibility of discrimination. They are not, without more, sufficient material from which a tribunal 'could conclude' that, on the balance of probabilities, the respondent had committed an unlawful act of discrimination."
Assistance by Commission
(1) Where, in relation to proceedings or prospective proceedings under this Act, an individual who is an actual or prospective complainant or claimant applies to the Commission for assistance under this section, the Commission shall consider the application and may grant it if they think fit to do so—
(a) on the ground that the case raises a question of principle; or
(b) on the ground that it is unreasonable, having regard to the complexity of the case, or to the applicant's position in relation to the respondent or another person involved, or to any other matter, to expect the applicant to deal with the case unaided; or
(c) by reason of any other special consideration.
(2) Assistance by the Commission under this section may include—
(a) giving advice;
(b) procuring or attempting to procure the settlement of any matter in dispute;
(c) arranging for the giving of advice or assistance by a solicitor or counsel;
(d) arranging for representation by any person including all such assistance as is usually given by a solicitor or counsel in the steps preliminary or incidental to any proceedings, or in arriving at or giving effect to a compromise to avoid or bring to an end any proceedings;
(e) any other form of assistance which the Commission may consider appropriate,
but paragraph (d) shall not affect the law and practice regulating the descriptions of persons who may appear in, conduct, defend, and address the court in, any proceedings.
"The Claimant acknowledges that in respect of some of the [seventeen] cases referred to above the CRE gave him legal assistance and/or representation to an extent."
It is not possible to extract the beginnings of differential treatment as between the claimant and Mr Titterington from this or from any of the supporting or surrounding material.