England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE CENTRAL LONDON COUNTY COURT
HIS HONOUR JUDGE COLLINS CBE
CL301476 & C1310122

		Royal Courts of Justice Strand, London, WC2A 2LL
		18th December 2006

Lord Justice Sedley :

1. The claimant, Janet Alder, is the sister of Christopher Alder, who died on 1 April 1998 in the custody of the Humberside police, in distressing and still contentious circumstances. A coroner's jury returned a verdict of unlawful killing (it was not allowed by law to say by whom), but the prosecution brought by the present defendant, the Crown Prosecution Service, against a number of police officers for misconduct in office and manslaughter ended in their directed acquittal following a submission that there was no case to answer on either count.
2. The present civil proceedings were initiated by and against a larger number of parties, but they now concern only Ms Alder as claimant and the CPS as defendant. Her claim against the CPS is, in summary, that the way it went about its work as a prosecuting authority was racially discriminatory because its officials repeatedly ignored her legitimate concerns and treated her with a combination of rudeness and indifference.
3. It is not disputed that, under the Race Relations Act 1976 as amended, the CPS as a public authority acts unlawfully if in providing a service or carrying out any of its functions it treats a person, on racial grounds, less favourably than it would treat others. A person so treated may bring a claim for damages. The essence of Ms Alder's case is that if she and her brother had been white, she would not have been treated in the way she describes, and that she has suffered both in her dignity and in her earnings in consequence.
4. The CPS does not dispute that these allegations are fit for trial insofar as they depend upon the allegations of rudeness and indifference. But it seeks before us to uphold the decision of HH Judge Collins CBE, sitting with assessors at the Central London County Court on 7 December 2005, that the allegations of failure to consult or listen to the claimant about the conduct of the criminal proceedings should be struck out. It also seeks to uphold his refusal to allow an amendment of the claim for pecuniary loss and his consequent exclusion of this element of the claim.
5. Recognising the general importance of the first issue, the judge himself gave the claimant permission to appeal.
6. The material provisions of the legislation lie in a short compass. Section 1 defines discrimination, for the Act's purposes, as occurring where on racial grounds someone treats a person less favourably than they treat or would treat others. By s.78 an act includes a deliberate omission. By s.20, discrimination in the provision of facilities and services is outlawed. Where s.20 does not apply (see s.19B(6)(a)), s.19B(1) makes it unlawful for a public authority in carrying out any of its functions to do any act which constitutes discrimination. Apart from the fact that one element of the claim is put under s.20 because it predates the amendment which introduced s.19B, nothing in the appeal turns on the distinction between the two provisions. Section 19F, however, excludes from the ambit of s.19B decisions not to bring or continue a prosecution and, broadly speaking, any input into such decisions.  
7. In relation to race discrimination claims, which commonly depend on the drawing of inferences by the fact-finding tribunal from the evidence or lack of it, Lord Steyn in Anyanwu v South Bank Student Union [2001] 1 WLR 638 said this:

"For my part such vagaries in discrimination jurisprudence underline the importance of not striking out such claims as an abuse of the process except in the most obvious and plainest cases.  Discrimination cases are generally fact-sensitive, and their proper determination is always vital in our pluralistic society.  In this field perhaps more than any other the bias in favour of a claim being examined on the merits or demerits of its particular facts is a matter of high public interest.  Against this background it is necessary to explain why on the allegations made by the appellants it would be wrong to strike out their claims against the university"

8. The paragraph struck out by Judge Collins was §8.7, which (omitting some superfluous digits) read as follows:

8.7 The Crown Prosecution Service, through its officers including (but not limited to) Mr Fleming and Stephen O'Doherty, failed to pay any or any proper regard to the Claimant's concerns and complaints that

8.7.1 Individual officers could have been involved in conduct which led to Christopher Alder becoming unconscious following his departure from the hospital;

8.7.2 C.S. gas may have been used by the individual officers on Christopher Alder;

8.7.3 There were discrepancies in the injuries noted at the hospital and after Christopher Alder's death;

8.7.4 Christopher Alder may have been assaulted by the individual officers on route from the hospital to the custody suite;

8.7.5 Christopher Alder's race impacted on the actions of the individual police officers and their treatment of him and/or demonstrated the racist intent of the individual officers;

8.7.7 The officers' clothing, worn when Christopher Alder was in their custody, had been destroyed;

8.7.9 There was evidence which had not been considered and had/or been ignored and/or had not been properly investigated;

8.7.10 The whole of the video recording the death of Christopher Alder had not been viewed (at all or until the trial began);

8.7.11 Investigations into the video and the 'monkey' noises and racist remarks contained on the video had not been properly investigated;

8.7.12 Inappropriate counsel had been instructed and they were refusing instead to go 'off circuit' notwithstanding the peculiar features of this case, including the race element, which justified specialist counsel.

9. As can be seen, these complaints and expressions of concern are not all of the same kind. The majority are allegations that specific acts of possible police misconduct needed to be investigated for the purposes of the prosecution. Numbers 5, 9, 10 and 12 are complaints about the way the prosecution was being conducted. The assertion at the start of the paragraph that the CPS, in particular by two named officials, failed to pay any or proper regard to these concerns and complaints of the claimant, and the assertion in §9.1 that this was on racial grounds (that is to say, that the CPS would not have behaved in this way but for the fact that she and her brother were black), are to be taken for this purpose as factual.  Because of s.78 the allegation of failure to pay regard has to be taken as an allegation of deliberate failure.
10. What the judge said about the CPS's functions was this:

"22. …… In my judgment it is proper for the court to resolve this issue on a strike-out application, even though it is one which is in a developing area of law, and the reason behind my view is that the practical implications of allowing a case to run to trial just in case it turns out that there is a good legal case is unacceptable ….

23. I start from the proposition that it could well be said, as Mr Barr [counsel for the CPS] has argued, that it would be constitutionally improper for the CPS to have regard to anybody's concerns and complaints about specific items of evidence and the way in which they were used in a prosecution. Defendants might have legitimate cause for complaint if the prosecution were to hearken to and be swayed by the views of victims, the family of victims, friends of victims, interested members of the public, in how prosecutions should be conducted. It seems to me that that would be a legitimate and proper constitutional position for the CPS to take and therefore, even if it were the case that the CPS failed to pay any or proper regard to the claimant's concerns about the twelve matters listed …. It does not seem to me that as a matter of public policy there ought to be any cause for complaint.

24. But what Mr Nicol [counsel for Ms Alder] submits is that, whatever those arguments, they do not exclude the Race Relations Act, because if in fact it turned out that some actual or notional comparator could be established, if notwithstanding their supposed constitutional independence the CPS did take regard of the views of a white person about the conduct of the case in relation to specific pieces of evidence but not the complaints and concerns of a black person in the same position, that would be discriminatory and would be a proper subject for proceedings; which brings one back to the point in the case, whether or not the pleaded matters amount to treatment of the claimant…. [C]onsidering complaints and concerns about specific matters of evidence in the conduct of the prosecution case do not seem to me to be arguably treatment of the claimant, and in my judgment the case for that reason is one which should be struck out at this stage under part 3. It seems to me, for the reasons which I have said, that while somebody may wish to have their complaints and concerns about individual matters considered by the CPS, whether the CPS do or do not consider those complaints and concerns is not a matter which is, on a proper analysis of language, treatment of the person who makes the complaints and concerns."

11. Before us, Ian Burnett QC no longer founds the CPS's case on a supposed constitutional principle precluding the giving of any attention to the views of persons legitimately interested in the prosecution. One can readily see why, for the CPS does, as it arguably should, pay attention to legitimate concerns on the part of victims and others before taking its own decisions: the Code for Crown Prosecutors and the Attorney-General's guidelines, extracts from both of which are before us, make this plain^[1]. While Mr Burnett's written submissions advance the suggestion that it would be contrary to public policy to be able to impugn under the Race Relations Act every decision of the CPS concerning the conduct of a prosecution, his oral argument recognised that if on a correct analysis the Act does permit it, it cannot be contrary to public policy. His essential contention has accordingly been that the acts complained of  have to be capable of coming within the meaning of the verb "treats" in s.1 of the Act, and that what is set out under §8.7 is neither alleged to constitute treatment of the claimant nor capable of constituting it.
12. For the claimant Andrew Nicol QC disclaims any intention to impugn individual prosecutorial decisions. His case is that in the course of coming to these decisions the CPS discriminated against her in the way it treated her. In §8.8, to which Mr Burnett has taken no objection, the form which the treatment of the claimant is said to have taken is repeated rudeness to her. In §8.7 it is said to have taken the form of ignoring her expressed concerns and complaints. It might be better, Mr Nicol accepts, if the paragraph were to begin by asserting in terms that the CPS had "so treated the claimant as not" to pay proper regard to her concerns and complaints, rather than that – as pleaded – they had simply "failed" to do so. But, he submits, this is plainly what it means, and in any event it is what would have to be established in order to bring this limb of the claim within the Act, particularly because, by virtue of s.78, the omission must have been deliberate.
13. It can be seen from the passage I have quoted from his judgment that the question on which argument before us has focused is, despite the excursion into public policy, the one the judge ultimately decided: can ignoring a person's expressed concerns amount to treatment of that person within the meaning of the Race Relations Act, even if those concerns related to the taking of decisions germane to the prosecution process?
14. In approaching this question, the judge appears in §22, from which I have quoted, to have taken into account what he called "the practical implications of letting the case run to trial just in case it turns out there is a good legal case".  This seems to me elide a sound point with a bad one. On a strike-out application like the present one the court is not concerned with the practical implications of letting the case go to trial: it is concerned only with whether there is what the judge calls "a good legal case", corresponding in the present context with the test under CPR 3.4(2) whether the statement of case discloses reasonable grounds for bringing the claim. Earlier, however, he had reminded himself (§17) that "the court is under an obligation and does not have a choice to consider the consequences of its decision" on a strike-out application, which was the right approach.
15. Is such conduct as is alleged in §8.7 capable in law of having amounted to unfavourable treatment of the claimant? Putting the same question the other way round, as the House of Lords did in X v Bedfordshire CC [1995] 2 AC 633, 741, is it clear and obvious that a claim in this regard cannot succeed? Mr Nicol submits, I think rightly, that the answer has to be approached not only in the light of Lord Steyn's dictum but in the light of the amendment to the Race Relations Act which, once the required foundation of fact has been laid, by s.57ZA requires the defendant to show that no unlawful discrimination whatever was involved. In other words, the legislature is alive to the difficulties of strict proof in this crucially important area and has chosen to meet them by instituting an adjudicative framework in which inference and  nuance play a central role.
16. Next Mr Nicol submits that treatment, for the purposes of the Act, is best understood both in its immediate context – less favourable treatment  - and in the larger context of a statute requiring a broad and purposive approach (see Jones v Tower Boot Co Ltd [1997] ICR 254, 262). He starts, however, from the ordinary meaning of the word, which he says is "to deal with" (though perhaps "to behave towards" is a better approximation). A person's complaints and concerns, at least if they are legitimate and relate to the particular public authority's functions, may be ignored or marginalised for a variety of reasons – for example, that they have already been addressed, or that they are plainly insoluble, or that they are being put forward so aggressively that this alone explains why they are not being addressed. But if to any degree whatever (I use the statutory word) they are ignored or marginalised because the complainant is black, which is what is asserted here, it is Mr Nicol's contention that she herself is thereby being treated less favourably than if she were white.
17. Mr Burnett's submission is that all the complaints tabulated in §8.7 of the claim related to the conduct of the prosecution and had nothing whatever to do with the treatment of the claimant. This seems to me to elide two different things. It is quite correct that, in the two generic ways I have mentioned, the ten particularised matters related to the conduct of the prosecution. But that is not the reason they are pleaded. They are pleaded as topics to which the claimant was trying to draw attention, and her case is that by ignoring what she was trying to say about them the CPS treated her less favourably than if she had not been black.
18. It is this, as it seems to me, rather than Mr Nicol's argument from s.19F, that is the key. Section 19F excludes from those functions subject to the prohibition of discrimination decisions of the CPS not to institute or not to continue criminal proceedings. Plainly Parliament's reason for making this exception is not that it intends the CPS to be at liberty to discriminate in making such decisions: it is that these are decisions which may well involve sensitive considerations inapt for canvassing in collateral proceedings. But it does assist Mr Nicol in answering Mr Burnett's contention that to explain why the complaints and concerns raised by the claimant were handled as they were would inevitably involve disclosing and canvassing a good deal about the prosecution process in the present case. In that event, as it seems to me, s.19F is a strong indicator that this by itself cannot exclude it from the court's purview. Only a decision not to institute or not to continue a prosecution is ringfenced from inquiry under the Act. Mr Nicol appears to be right in his submission that s.19F would leave the way open for a claimant to sue the CPS for discriminating against him on racial grounds by deciding to prosecute him.
19. It has been common ground before us, in my judgment rightly so, that, at least in a context such as the present, treatment is not confined to how a person is dealt with face to face and can include, for instance, the way in which her complaints are dealt with in her absence.
20. Meanwhile, we cannot know in the present state of the case whether and to what extent Mr Burnett's concern about the penetration of the claim into the CPS's processes is right. The CPS's answer may be that the claimant's queries were all conscientiously and civilly addressed. It may be that the way they were advanced wholly explains why they were not addressed or were perfunctorily dealt with. It may be an admission that they were, as the claimant asserts, simply ignored; or that may be what the court, after a contest, decides. But to the extent to which she can verify her pleaded case under §8.7 she is entitled to say that it shows how she was being treated by the CPS, and it will be no defence that in order to deal with it the CPS will have to disclose its decision-making process. By parity of reasoning, any attempt under this paragraph to go beyond proof of treatment – that is to say, beyond the question of how the CPS was behaving towards the claimant - will be impermissible.
21. I would accordingly allow the appeal on this limb of the case and restore paragraph 8.7, whether in its original or in a suitably tidied-up form.
22. The other limb of this appeal concerns the pleading of damage. At the hearing Mr Nicol applied to amend the claimant's schedule of loss because it mistakenly attributed her losses to Mr Alder's death rather than to the treatment of her by the CPS. The judge refused permission to amend and gave summary judgment for the defendant on the claim for pecuniary loss. He did so because, in his words, the amended claim was not supported by evidence and "not explicable in any sensible way at trial".
23. The claim as it stood averred by §10 that the claimant's treatment by the CPS has caused her psychiatric harm and associated pecuniary loss. Such a claim is sustainable in principle. In the schedule of loss the earnings of which recovery is sought are prefaced by the words: "But for Christopher Alder's death…"  The judge was asked to let this be amended along these lines "The facts and matters set out in paragraphs 8.7 to 8.8 were a material cause of the following damage to the claimant….".
24. It is said by Mr Burnett, in defence of the judge's refusal to let this aspect of the claim be pursued, that at the time of her brother's death the claimant was already in both psychiatric and employment difficulties. This is not quite right. Although the psychiatric report prepared by Mr Turner describes an abused childhood and already extant emotional difficulties, Ms Alder was in a steady and responsible job at the date of her brother's death. She lost it in unhappy circumstances the following November, and her case is that, but for the stress to which the CPS's treatment of her materially contributed, she would have made a better and earlier recovery than she has done and have returned sooner to full-time paid work. To the extent that the impact of the way she was treated was due to her already fragile state, the ordinary principle is that the CPS, if it was a wrongdoer, must take her as it found her.
25. Mr Burnett contends that the evidence cannot on any view show a pecuniary loss attributable to the conduct of the CPS. But this is not the question. The question is whether, if the CPS did discriminate against the claimant as she alleges it did, the effects of the way it treated her did anything to aggravate or prolong her existing problems. It is not an answer to this to say, as Mr Burnett does, that no medical evidence shows the injury allegedly suffered at the hands of the CPS to have been responsible for the loss of a single day's work. It may well be the case that the figures of loss are overpleaded, but the CPS does not seek to strike out only part of the claimed loss. In these circumstances any overpleading is a matter for revision, negotiation and, if need be, adjudication, not for striking out.
26. It is quite true that the nexus between the treatment of the claimant by the CPS and her emotional and psychological condition since her brother's death is not explicitly made in Dr Turner's main report. He has added in a subsequent letter:

"In my opinion, Ms Alder's experience of the role of each the four agencies (the police, the PCA, the CPS and its counsel) referred to in my letter made a material contribution to causation of her condition."

This might be but is not necessarily damaging to his evidence or her case. As a psychiatrist he will not have been concerned, as lawyers would be, with the allocation of responsibility, and it is not infrequent to find that the expert's opinion on such questions has to be solicited by way of a follow-up letter.

27. Whether this aspect of the claim will turn out to be viable we do not know, but the factual assertions it contains, once amended, and the evidence I have referred to are capable of sustaining a claim for damages. I would accordingly allow the amendment which the judge refused and restore the pleading of pecuniary loss.

Lord Justice Lloyd:

28. I agree.

Sir Anthony Clarke, MR

29. I also agree

Note 1      See §5.12 of the Code for Crown Prosecutors, 2004 ed.;  Attorney-General’s Review of the Role and Practices of the Crown Prosecution Service in Cases Arising from a Death in Custody (July 2003) §8.73-4.    [Back]