England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE No CCRTI 96/0603/G

(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

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FARAH

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COMMISSIONER OF POLICE FOR THE METROPOLIS

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(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)

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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

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J U D G M E N T

(As Approved by the Court )

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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.