England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
AND THE COUNTY COURT
[2014] EWHC 2922 (QB)

		Royal Courts of Justice Strand, London, WC2A 2LL
		17/08/2017

Lord Justice Sales:

1. This is the hearing of two appeals from a decision of HHJ Seys Llewellyn QC in relation to a race discrimination claim brought by the appellant against Avon and Somerset Police in respect of matters arising from an incident in Bristol in the early hours of 13 June 2009 when the appellant was arrested by the police. The first appeal relates to liability. The second appeal relates to quantum of damages.
2. The appellant is a woman of mixed race. She was partially successful before the judge in her race discrimination claim. The judge found there had been two acts of unlawful discrimination in relation to her, but on this appeal she contends that further findings of acts of discrimination should have been made by him. She also submits that the damages awarded by the judge in the sum of £4950 were too low. Since the relevant events took place some years ago and preceded the coming into force of the Equality Act 2010, the judge was required to apply the law on race discrimination as set out in the Race Relations Act 1976 (as amended).
3. The claim of discrimination was based on section 57 of the 1976 Act, which covers alleged discrimination by the police in carrying out their functions. Section 1(1)(a) of the 1976 Act defines racial discrimination thus: "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 then he treats or would treat other persons".
4. The judge dismissed further claims by the appellant based on Article 3 of the European Convention on Human Rights ("ECHR") and the Human Rights Act 1998, misfeasance in public office, defamation and allegations of unlawful arrest and unlawful assault. The appellant has not been granted permission to appeal in relation to these aspects of the judgment. For the purposes of those claims the judge sat as a deputy judge of the High Court. For the purposes of the race discrimination claim pursuant to the 1976 Act, the judge sat as a judge of the County Court, which is the court with jurisdiction for such claims. Accordingly, the present appeal is an appeal from the County Court.
5. This appeal addresses the intersection of the substantive law of discrimination under the 1976 Act, the law of evidence as modified by section 57ZA of the 1976 Act and the operation of procedural law. As to substantive law, unlawful race discrimination may arise if there is conscious and deliberate detrimental treatment applied to an individual on grounds of their race or if there is detrimental treatment on the basis of an unconscious bias against a person with that racial profile, for instance where there is unconscious racial stereotyping. The difference may be relevant to the assessment of damages.
6. Section 57ZA provides in relevant part as follows:

"(1) This section applies where a claim is brought under section 57 and the claim is that the respondent –

(a) has committed an act of discrimination, on grounds of race or ethnic or national origins, which is unlawful by virtue of any provision referred to in section 1(1B)(b) to (d), or Part IV in its application to those provisions …

(2) Where, on the hearing of the claim, the claimant proves facts from which the court could, apart from this section, conclude in the absence of an adequate explanation that the respondent –

(a) has committed such an act of discrimination or harassment against the claimant, …

the court shall uphold the claim unless the respondent proves that he did not commit or, as the case may be, is not to be treated as having committed, that act."

7. Prior to trial the police were subject to orders to serve on the appellant any witness statements by relevant police officers in answer to the claim. This they failed to do and accordingly, and as confirmed by a ruling in this court, they were debarred from relying on such witness statements at the trial in order to give an account of why individual officers acted in the way they did. This meant that the trial proceeded on the basis of witness statements and oral evidence from the appellant and Lisa Putterill (a friend of the appellant who was arrested with her), together with documentary materials relating to the claim which had been disclosed by the police and videos taken from CCTV cameras in Bristol city centre and at the police station. Ms Putterill is white and parts of the appellant's race discrimination claim rested on a comparison with how Ms Putterill was treated by the police. The judge found that the acts of discrimination identified by him arose on the basis of unconscious bias on the part of the police officers involved.
8. At trial, the appellant was a litigant in person representing herself. The police were represented by Mr Payne, who also appears for the police on this appeal. The judge was not referred to section 57ZA, but Mr Payne says that the appellant herself made sufficient reference to the substantive issue of the burden of proof and the judge is experienced in trying race discrimination claims and so must have had it in mind. As appears below, I am not satisfied that the judge did in fact have it in mind or take it properly into account. Section 57ZA is a complex provision and it would have been desirable for Mr Payne to have drawn his attention to it.
9. On this appeal Mr Adkin appears for the appellant. He secured permission to appeal for her at an oral permission hearing before McCombe LJ at which he appeared pro bono. Mr Adkin submits that the judge failed to apply the law as set out in section 57ZA and that, since the police were prevented by the procedural ruling of the court from being able to adduce witness statements in evidence to explain the conduct of police officers, the judge should have found on the basis of that provision that three further acts of unlawful discrimination occurred, to add to his findings of two acts of unlawful discrimination which he did make in his decision. Mr Adkin also submitted, albeit faintly and, as he made clear, on the basis of instructions given him by his client in court, that the judge should have found that all the further alleged acts of unlawful discrimination occurred on the basis of conscious racial bias on the part of the police officers involved.
10. As I explain in the discussion below, I would allow the appeal to the extent that the judge should on proper application of section 57ZA have found one additional feature of unlawful discrimination on the part of one police officer. I would reject the appeal in relation to the other two additional acts of alleged unlawful discrimination which the appellant raises on this appeal and would reject her appeal to the effect that the additional act of discrimination should be found to have occurred on the basis of conscious racial bias on the part of the police officer involved. The parties were agreed that if we reached such a conclusion on the appeal, the determination of the appeal relating to the quantum of damages should be postponed until after the parties had made submissions in writing in the light of the outcome of the appeal on liability.

Factual background

11. The full factual background for all the claims made by the appellant appears in the judgment of the judge. It is not necessary to rehearse it all in this judgment. The relevant factual background can be summarised as follows.
12. The appellant and Ms Putterill had been out in Bristol city centre on the evening of 12 June and into the small hours of 13 June 2009. At about 2.30 am they went to get a taxi from a taxi rank supervised by two taxi marshals. Having entered a taxi they became engaged in an argument with the taxi driver when he demanded payment of the fare up-front and would not show them his licence badge. The evidence of Ms Putterill was that one of the taxi marshals made an offensive racist remark so she got out furiously to confront him.
13. Things escalated. The taxi marshal seized Ms Putterill and held her against some railings. The appellant was seized by the other marshal. Ms Putterill fell to the floor with the first marshal on top of her. A by-stander, a Mr Allen (who is white) intervened to pull away the marshal on top of Ms Putterill and the other marshal let go of the appellant to help detain Mr Allen. The appellant picked up her mobile phone from the floor and was then seen on the CCTV video of the event to strike one of the marshals from behind. She maintained that she did this to try to assist Mr Allen whom she believed was being assaulted.
14. The police were called by the team monitoring the CCTV cameras in the city centre, who reported the incident as an assault on taxi marshals by females, including one described as "black" (a reference to the appellant). A police van with a number of officers inside attended at the scene. The officers left the van and one of the marshals pointed them in the direction of a group comprising the appellant, Ms Putterill and Mr Allen. The officers' attention focused on the appellant. A female officer, PC Brett, arrested her. The police did not initially attempt to arrest Ms Putterill or Mr Allen, but rather waved them away (or even, in the case of Ms Putterill, pushed her away) from the scene. It was only when a taxi marshal intervened that a police officer was persuaded to follow them a little later and they were arrested as well.
15. The appellant was placed in charge of PS Thorpe at the scene. PC Brett and PS Thorpe handcuffed the appellant with her hands behind her back. Although the police were debarred from putting in witness statements for the trial, the appellant herself put in evidence and relied upon a short written statement of PS Thorpe prepared for the purposes of a criminal prosecution later brought against the appellant. In that statement, PS Thorpe suggested that she was handcuffed in this way because she had been resisting arrest. However, on the basis of the appellant's evidence and the judge's analysis of the CCTV footage he found that she had not been resisting arrest and that there had not in fact been a good reason for her to be rear handcuffed in this way.
16. The two acts of race discrimination which the judge found to be made out on the evidence were (i) the targeting of the appellant for arrest, while the police showed no initial interest in Ms Putterill and Mr Allen, who were white; and (ii) the rear handcuffing of the appellant. However, he found that her arrest was lawful and justified, on the footing that the police had reasonable grounds to believe she had committed an offence. The arrest itself was not an act of racial discrimination: [150]. The judge also found that PC Brett and PS Thorpe were not consciously motivated by racial bias in acting as they did, but acted by reason of unconscious racial stereotyping: [149]-[150] (I infer that this was on the basis of an unthinking expectation that the appellant was the most likely person present to have committed an offence and might cause trouble even though she did not resist arrest).
17. The appellant was placed in the secure compartment at the rear of the van, referred to as "the cage", for transportation to the police station. Ms Putterill had also been arrested by this stage and was placed in the front of the van with the police officers. She was not handcuffed. The judge did not find that there was any element of race discrimination in relation to the placement of the appellant, but not Ms Putterill, in the cage. The appellant had simply been arrested first and was naturally placed in the cage for that reason, and there was limited room in the cage so Ms Putterill could not be placed there as well: [133] and [149]. The appellant does not have permission to appeal in relation to this finding. Mr Allen resisted arrest and another police van was called to take him to the police station separately.
18. The judge found that on the journey to the police station in the back of the van the appellant was thrown about by the motion of the van and that by reason of being rear-handcuffed she could not keep a secure position on the bench in the cage. It was not suggested that the van was driven deliberately or violently in order to bash the appellant about, but Ms Putterill's evidence in her witness statement and orally was that:

"on the journey banging could be heard from the rear cage, and the police officers in the van with levity were laughing and saying to each other 'what's that banging noise in the back, can you hear something banging in the back? What's that noise?', something which upset her [Ms Putterill] very much, replying several times 'that's my friend being thrown around'."

19. The judge accepted this part of Ms Putterill's evidence as true: [134]-[136]. However, he observed at [137]:

"It does not, of course, follow that such an attitude, if proved, was based consciously or unconsciously upon the mixed race of the [appellant]. It may have been no more than a coarse reflection of the weariness of police officers who week in and week out are expected to deal with drunkenness, loutishness and aggression in late night city centre incidents."

The judge made no finding of race discrimination in relation to this part of the history.

20. The police van arrived at the police station at 3.10 am. At the police station the appellant was kept for a while in the cage before being taken out and processed in the station itself.
21. The judge accepted the appellant's evidence that she asked PS Thorpe directly or indirectly through others, as the officer in charge of her, four times if she could go to the toilet: [106]. It is common ground that two of these requests were made in the period when the appellant remained in the cage. PS Thorpe did not accede to them. Two further requests were made of PS Thorpe when the appellant was in the holding cell in the police station, together with three male officers who remained in the cell with her. The judge found that PS Thorpe only relayed one of these requests to the custody sergeant on duty that night, PS Pilling: [104]-[106]. There was a delay before the appellant's repeated requests were acted on, with the consequence that the appellant could contain herself no longer and with no relief in prospect was obliged to move to a corner of the cell and urinate in front of the officers there, as was captured on CCTV footage. Shortly after she finished PS Thorpe and a female officer were seen arriving at the cell to take the appellant to a toilet, too late. This occurred sometime after 4 am. The judge found that the police (in particular, PS Thorpe) had not responded to the appellant's requests to go to the toilet with appropriate urgency, and said: "The criticism against the police officers for failure to respond to her requests is amply justified" ([106]).
22. Although this was a humiliating experience for the appellant, the judge noted that she did not suggest loutish comment, goading or laughter on the part of the police officers and that it appeared that a female officer had been on her way to the cell to accompany her to the toilet and arrived immediately after the appellant had urinated: [107]. The judge found that the failure to respond to the appellant's four requests to use the toilet with proper urgency was not motivated "by some relish or intention that she should be reduced to public urination or humiliation", and therefore rejected her claim of breach of her rights under Article 3 of the ECHR: [107]-[108].
23. The judge also made the following assessment at [149] for the purposes of the appellant's race discrimination claim:

"As to the delay in affording toilet facilities I find … that the failure was lamentable but I cannot discern any evidence that it was motivated consciously (or, I would add, unconsciously) by the fact that [the appellant] was of mixed race."

24. He therefore dismissed the appellant's claim of race discrimination in relation to the non-timely provision of a toilet for the appellant in response to her four requests to be allowed to go to the toilet.
25. The appellant and Ms Putterill were released but were asked to attend for interview at the police station at a later date, which they did on a voluntary basis. They went there on 15 July 2009. The appellant arrived before her legal representative did. The appellant was recorded as being polite and reasonable. However, she was searched and placed in a cell. The judge found that this was normal practice at this police station where a voluntary interview could not be undertaken immediately and the legal representative was awaited: [42].
26. Ms Putterill also had to wait for interview. She was recorded as being upset and tearful. She was permitted to wait in a consulting room with a police officer, rather than in a cell. Accordingly she was not searched, as she did not need to be. She was also provided with magazines and allowed to call a babysitter.
27. The appellant claimed that this difference in treatment between herself and Ms Putterill indicated that her being searched and placed in a cell was a further act of race discrimination against her.
28. The judge rejected this claim. His own assessment of the appellant and Ms Putterill based on his observation of them at the trial corroborated the records from the day of the interview. He found Ms Putterill to be labile and extremely nervous and somewhat fragile, as compared with the appellant who is articulate and whom he found was composed on 15 July 2009: [47]-[48]. As the judge said, this difference between them in personality and presentation had nothing to do with race or colour. The appellant appeared to be resolute when she attended for interview, whereas Ms Putterill appeared vulnerable and distraught. The judge found that this difference in presentation was readily capable of explaining the difference in treatment between them and that it could not be attributed to discrimination on racial grounds, whether conscious or unconscious: [49].
29. The appellant and Ms Putterill were subsequently charged with offences, but the prosecution was dropped by the CPS upon review when it emerged that the taxi driver did not maintain that he had been assaulted, as the taxi marshals claimed he had been.
30. The appellant made complaints about her treatment and other matters which were investigated by the police. She claimed that the investigations were defective and that she was treated dismissively during them and that these constituted further acts of race discrimination. However, the judge dismissed these claims as well. He found that the investigations into her complaints had been proper and thorough.
31. The appellant applied for permission to appeal on a number of grounds. This was refused, save that at an oral permission hearing before McCombe LJ he granted permission to appeal in respect of the appellant's ground of appeal that the judge failed to apply section 57ZA in respect of three allegations of race discrimination:

"(a) Police officers were laughing at [the appellant] being thrown around in the back of the police van as a result of rear handcuffing on 13.6.09;

(b) Failure to provide the use of the toilet on 13.6.09;

(c) Difference in treatment between appellant and Lisa Putterill in attending for the interview on 15.7.09."

32. McCombe LJ also included this in his order:

"Application for permission in respect of ground of appeal that the trial judge erred in his treatment of exemplary and/or aggravated damages is adjourned to be considered at the conclusion of the hearing of the appeal of the ground described … above. Appeal to be heard at the hearing, if application for permission to appeal is granted."

33. I will now consider the appeal in respect of issues of liability and the three allegations of race discrimination identified in McCombe LJ's order granting permission to appeal.

Discussion

34. Section 57ZA is in materially identical terms to section 63A(2) of the Sex Discrimination Act 1975 and section 54A(2) of the 1976 Act, which apply in respect of allegations of sex or race discrimination in an employment context. The relevant case-law is in relation to those provisions, but it is common ground that the guidance given in those authorities is applicable in relation to section 57ZA as well: see Hewage v Grampian Health Board [2012] UKSC 37; [2012] IRLR 870, [28]-[32], approving guidance in Igen Ltd (formerly Leeds Careers Guidance) v Wong [2005] EWCA Civ 142; [2005] ICR 931 and Madrassy v Nomura International Plc [2007] EWCA Civ 33; [2007] ICR 867.
35. In the Annex to its judgment in Igen Ltd, this court set out guidance regarding the proper approach required by section 63A of the 1975 Act. This guidance is also relevant with appropriate adjustments to section 57ZA of the 1976 Act. For present purposes, the relevant points to be drawn from that guidance are that it is for the claimant who complains of race discrimination to prove on the balance of probabilities facts from which the tribunal could conclude, in the absence of an adequate explanation, that the police have committed an act of discrimination against the appellant which is unlawful by virtue of the 1976 Act (referred to as "such facts" below); it is important to bear in mind in deciding whether the claimant has proved such facts that it is unusual to find direct evidence of race discrimination, as the police would be unlikely to be prepared to admit such discrimination, even to themselves; in some cases the discrimination will not be an intention but merely based on the assumption that "he or she (the claimant) is likely to be troublesome in dealing with the police"; in deciding whether the claimant has proved such facts, it is important to remember that the outcome at this stage of the analysis by the court will therefore usually depend on what inferences it is proper to draw from the primary facts found by the court; it is important to note the word "could" in section 57ZA - at this stage the court does not have to reach a definitive determination that the facts proved by the claimant would lead it to the conclusion that there was an act of unlawful discrimination, but rather is looking at the primary facts before it to see what inferences of secondary fact could be drawn from them; in considering what inferences or conclusions can be drawn from the primary facts, the court must assume that there is no adequate explanation for those facts; where the claimant has proved facts from which conclusions could be drawn that the police have treated the claimant less favourably on the ground of race, then the burden of proof moves to the police; it is then for the police to prove that they did not commit, or as the case may be, are not to be treated as having committed, that act as an act of discrimination; to discharge that burden it is necessary for the police to prove, on the balance of probabilities, that the treatment was in no sense whatsoever on the grounds of race; that requires a court to assess not merely whether the police have proved an explanation for the facts from which such inferences can be drawn, but further that it is adequate to discharge the burden of proof on the balance of probabilities that race was not a ground for the treatment in question; and since the facts necessary to prove an explanation would normally be in the possession of the defendant, a court would normally expect cogent evidence to discharge that burden of proof.
36. Although a court or tribunal will hear all the evidence relating to a race or sex discrimination claim in the course of a single hearing, the analytical approach required under section 63A(2) of the 1975 Act and under section 57ZA is in two stages. First, under section 57ZA, findings are made regarding the primary facts and an assessment is made whether from them and all the evidence before it a reasonable court could properly conclude that the respondent has committed an act of race discrimination if no adequate explanation is forthcoming from the respondent; that is to say, the court looks to see if the claimant has made out a good prima facie case of differential treatment on grounds of race. Secondly, the court then looks to see if the respondent has provided an adequate explanation to show that such differential treatment is in fact attributable to some other ground for acting or omitting to act in the claimant's case.
37. Mummery LJ gave a helpful explanation of the two stage analysis in Madarassy at [56]-[58]:

"56. The court in Igen Ltd v Wong [2005] ICR 931 expressly rejected the argument that it was sufficient for the complainant simply to prove facts from which the tribunal could conclude that the respondent "could have" committed an unlawful act of discrimination. The bare facts of a difference in status and a difference in treatment 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.

57. "Could… conclude" in section 63A(2) must mean that "a reasonable tribunal could properly conclude" from all the evidence before it. This would include evidence adduced by the complainant in support of the allegations of sex discrimination, such as evidence of a difference in status, a difference in treatment and the reason for the differential treatment. It would also include evidence adduced by the respondent contesting the complaint. Subject only to the statutory "absence of an adequate explanation" at this stage (which I shall discuss later), the tribunal would need to consider all the evidence relevant to the discrimination complaint; for example, evidence as to whether the act complained of occurred at all; evidence as to the actual comparators relied on by the complainant to prove less favourable treatment; evidence as to whether the comparisons being made by the complainant were of like with like as required by section 5(3) of the 1975 Act; and available evidence of the reasons for the differential treatment.

58. The absence of an adequate explanation for differential treatment of the complainant is not, however, relevant to whether there is a prima facie case of discrimination by the respondent. The absence of an adequate explanation only becomes relevant if a prima facie case is proved by the complainant. The consideration of the tribunal then moves to the second stage. The burden is on the respondent to prove that he has not committed an act of unlawful discrimination. He may prove this by an adequate non-discriminatory explanation of the treatment of the complainant. If he does not, the tribunal must uphold the discrimination claim."

38. As noted above, Mr Payne contends that although the judge did not mention section 57ZA in his judgment he nonetheless had the substance of it in mind and applied it correctly. I do not agree.
39. The appellant was a litigant in person at trial. It is clear that she presented her case with intelligence and force, but there is nothing to indicate that she was aware of section 57ZA and she did not refer to it. In the course of her submissions, there was a short exchange between the appellant and the judge regarding the burden of proof in relation to her race discrimination claim. The judge summarised her submission in this way: "I think what you are saying is that a court may make an inference from all the facts and that there may be racial discrimination even when there is not a conscious discrimination between two persons if it is in fact in truth generated by discrimination on those grounds not otherwise justified." The appellant agreed that this was her submission and Mr Payne agreed with this as a matter of law. The appellant then said,

"Okay. I have shown the facts to the court and now the defendant must justify the treatment or prove that that didn't happen. There's been no proper explanation, especially not one to be sufficient to discharge the burden of proof that has been offered by the defendant and as the defendant has no witnesses that they would be able to rely on I cannot see how the defendant is going to be able to satisfy the court with a proper explanation."

40. I accept that Mr Payne thought this statement by the appellant sufficiently indicated to this judge the proper framework to be applied under section 57ZA. However, I do not think that the judge's summary of the appellant's argument and her fleeting reference to the burden of proof did accurately and sufficiently encapsulate the effect of section 57ZA. Reading the judgment as a whole, I do not consider that it can be inferred that he did have section 57ZA in mind or that he adopted an approach in line with it.
41. Apart from the simple absence of discussion of section 57ZA, there are positive indications in the judgement that the judge did not have it in mind. He discussed the evidence in the race discrimination claim in terms of a general evidential principle that an adverse inference might be drawn from the absence or silence of a witness who might be expected to have material evidence to give on an issue in an action, in relation to which the appellant had drawn his attention to Wisniewski v Central Manchester Health Authority [1998] PIQR 324, CA: see the judge's discussion at [140]-[142]. However, that is a principle of general application which is materially different from the approach required under section 57ZA. Applying the general principle, the judge said that it was not appropriate to draw adverse inferences against police officers from the simple absence of statements or live evidence from them, because that was attributable to the procedural order which prevented the police from adducing such evidence. The judge did not analyse separately what effect that procedural position had in relation to the approach to be followed under section 57ZA.
42. At [151] the judge commented that he had stood back and considered all of the evidence and whether any provisional finding needed to be adjusted or changed in the light of other findings. This is the proper conventional approach adopted in any case, rather than the special approach required by section 57ZA in the discrimination context. I consider that [151] indicates that he had not adopted the structured two stage analysis required by section 57ZA. Again, the judge's discussion at [149] regarding the delay in affording toilet facilities, set out above, did not contain a proper analysis of the discrimination claim in that regard as required by section 57ZA.
43. I have considerable sympathy with the judge. He was dealing with a wide-ranging and rather diffuse set of claims and did not have his attention drawn to section 57ZA. But it is common ground on this appeal that section 57ZA sets out the relevant approach in law which he should have adopted. Unfortunately, I do not consider that he did.
44. The appeal in relation to the three additional points of alleged race discrimination set out above arises in the context of this general background. The first point relates to the laughing of the police in the van when the appellant was being transported to the police station on 13 June 2009. In my judgment, the appeal should be dismissed in relation to this point. This is because, as Mr Payne demonstrated, it was not pleaded in the appellant's claim form or particulars of claim as an allegation of an act of race discrimination. Nor was it referred to in the appellant's own witness statement as a matter of complaint by her. It was referred to in Ms Putterill's witness statement and oral evidence, but only to give the context for the events of that night and to furnish support in relation to other allegations of race discrimination which were pleaded and properly advanced. Thus, this point as an allegation of a distinct act of race discrimination is made for the first time in this court. The police did not have fair notice of it at trial nor a fair opportunity to address it in submissions to the judge. It did not form part of the pleaded case of race discrimination which they had to meet.
45. In my view, the conclusion on this point of appeal is a matter of basic fairness. Claims of race discrimination can be wide-ranging in terms of factual matters which are addressed, and the court and the parties need to have a proper and focused understanding of the particular allegations of acts of race discrimination which are being advanced. That understanding is to be derived from the pleaded case. As has been said in the employment context by Elias J sitting in the Employment Appeal Tribunal in The Law Society v Bahl [2003] IRLR 640 at [90]:

"… a tribunal should not make findings of unlawful discrimination in respect of any matter which was not in the originating application or the subject of subsequent amendment. It is not for the tribunal to extend the range of complaints of its own motion: see Chapman v Simon [1994] IRLR 124. In the course of giving judgment Peter Gibson LJ observed (at para. 42):

"Under s.54 of the 1976 Act, the complainant is entitled to complain to the Tribunal that a person has committed an unlawful act of discrimination, but it is the act of which complaint is made and no other that the Tribunal must consider and rule upon. If it finds that the complaint is well founded, the remedies which it can give the complaint under s.56 (1) of the 1976 Act are specifically directed to the act to which the complaint relates. If the act of which complaint is made is found to be not proven, it is not for the Tribunal to find another act of racial discrimination of which complaint has not been made to give a remedy in respect of that other act."

Balcombe LJ made observations to like effect: see para 33."

46. Although the judge made findings about the levity of the police in the van and speculated about why they behaved as they did, that was not the subject of any pleaded allegation of race discrimination and it is not open to the appellant to invite this court to find that it constituted a separate act of race discrimination. It seems to me that the judge dealt with it simply as part of the immediate factual background in relation to the incidents on 13 June 2009. In that context it would have been strange not to have referred to it. Since there was no pleaded allegation of race discrimination in respect of it, the judge was not required to apply section 57ZA in relation to it and was entitled to make the general assessment he did about why the laughter occurred.
47. I would also dismiss the appeal in relation to the third additional allegation of race discrimination set out above, regarding the different treatment of the appellant and Ms Putterill when they attended for interview on 15 July 2009. In my view, it is clear that at the first stage of the analysis required under section 57ZA the facts as found by the judge do not give rise to a prima facie case of race discrimination against the appellant which called for explanation by the police at the second stage: see Madarassy at [57], quoted above. The judge found that the different treatment of the appellant and Ms Putterill was fully and satisfactorily explicable by reason of the different ways in which they presented at the police station. The appellant was treated in accordance with normal procedures applicable to everyone regardless of their race. Ms Putterill was given special dispensation from those normal procedures because she was visibly upset and in a fragile state.
48. However, in my judgment the appeal should be allowed in relation to the second additional allegation of race discrimination set out above, regarding the delay in making toilet facilities available for the appellant. I consider that the judge fell into error in relation to this by his failure to apply the approach required by section 57ZA in respect of it.
49. On the evidence before him the judge had found that before the toilet incident PS Thorpe had already been party to two acts of race discrimination in relation to the appellant, albeit on the basis of unconscious racial stereotyping, namely targeting her for arrest on 13 June 2009 in advance of Ms Putterill and Mr Allen and rear-handcuffing her. The judge found that the appellant made four requests to PS Thorpe to use the toilet which were not acted upon with appropriate urgency. Of these requests, he had only passed on one to the desk sergeant, PS Pilling. The appellant had been in police detention without access to a toilet for a considerable time.
50. In my view, these facts were facts from which the court could conclude (in the absence of an adequate explanation) that in delaying in his response to the appellant's requests as he did, PS Thorpe had committed an act of discrimination against the appellant. The appellant met the threshold test at the first stage of analysis under section 57ZA.
51. By virtue of section 57ZA, therefore, it was incumbent on the police to prove that there was an innocent, non-racial ground for this treatment of the appellant. It is at this second stage of the analysis that the non-availability of any admissible witness statement from PS Thorpe to explain why he behaved as he did is critical. There simply was no explanation before the court from PS Thorpe which was capable of meeting the burden of proof which lay on the respondent to account for what he had done. No doubt PS Thorpe and the police generally often face requests from people being detained that they want to use the toilet and often there may be good reason, depending on the particular circumstances, why they are not immediately acceded to. But because of the procedural directions at an earlier stage of this case which excluded any witness statements from police witnesses being adduced in evidence, there was no evidence before the court that there was any such good reason in the appellant's case. The judge ought therefore to have found, on proper application of section 57ZA, that this distinct allegation of race discrimination was made out.
52. Although this finding ought to have been made in the case in relation to the conduct of PS Thorpe, it should be emphasised in fairness to PS Thorpe that this finding is made - like the other two findings of acts of race discrimination by him as made by the judge - in the absence of evidence from him to answer the allegations and to explain his conduct. That there was no admissible evidence from PS Thorpe to answer the case against him was through no fault of his own, but was the result of the procedural default by the respondent Chief Constable. It may be that if evidence were taken from PS Thorpe to explain his conduct, a different conclusion might be drawn. I cannot speculate about that. For the purposes of this appeal, the case has to be addressed on the basis of the evidence before the judge.
53. As I have mentioned, Mr Adkin presented an argument that the judge should have found that the act of discrimination in delaying the response to the appellant's request for access to a toilet was the product of conscious racial bias on the part of the police, in particular PS Thorpe. I do not accept this. Section 57ZA does not in itself create any presumption that an act of race discrimination is conscious and deliberate, rather than unconscious. It is plausible and very probable that PS Thorpe's delay in acting on the appellant's requests was due to unconscious racial stereo-typing, an unthinking assumption that as a person of mixed race the appellant was likely to be more demanding and difficult when dealing with the police. The judge had found that the other acts of discrimination by PS Thorpe were based on unconscious racial stereotyping, so it would have been very odd to conclude that this one was different. At the time of the incident PS Thorpe was in fact bringing a female police officer to the holding cell to accompany the appellant to the toilet, arriving just too late. Moreover, there was a wealth of evidence to which the judge referred that the treatment of the appellant was not accompanied by abuse or racial slurs or anything which might give rise to an inference of deliberate and conscious race discrimination on the part of PS Thorpe or any other officer. The appellant has not made out a good case for disturbing the judge's findings that there was no element of conscious racial bias in the treatment she received.
54. I am confident that this is the correct interpretation of the facts, in light of the findings made by the judge which are not in dispute on this appeal. The appellant's primary case on the appeal was that this court should determine relevant matters for itself, based on undisputed findings made by the judge, rather than remitting the case to this judge or another judge sitting at first instance. I agree that it is appropriate for us to proceed in that way. This point is potentially relevant to the question of assessment of damages.
55. Since I would allow the appeal in relation to liability for race discrimination in respect of delaying access to the toilet for the appellant, I would also give the appellant permission to appeal in relation to the quantum of damages.
56. In that case, it was agreed at the hearing that written submissions should be made by the parties with the benefit of knowing the court's decision on the appeal on liability and that the court would determine the question of quantum of damages on the basis of those submissions. Accordingly, unless the quantum of damages is agreed, I would direct the appellant to serve and file her written submissions on quantum of damages by 4 pm on 16 October 2017; the respondent to serve and file his written submissions on quantum by 4 pm on 23 October 2017; and the appellant to serve and file any written submissions in reply by 4 pm on 30 October 2017.

Conclusion

57. I would allow the appeal in relation to liability in respect of one of the three additional allegations of race discrimination and substitute a finding that there was an act of race discrimination, namely as regards the delay in providing the appellant with access to a toilet on 13 June 2009. The substituted finding is that this was the result of unconscious racial stereotyping by the police officer concerned. I would grant permission to appeal in relation to quantum of damages and, unless the quantum of damages is agreed, direct the parties to make written submissions on that question.

Lord Justice Moylan:

58. I agree.

Lady Justice Black:

59. I also agree.