DEFENDANT DEBARRED FROM CALLING WITNESS EVIDENCE AT TRIAL: COURT OF APPEAL OVERTURNS FINDING FOR DEFENDANT

The case of Durrant -v- Chief Constable of Avon & Somerset Constabulary is a long-running saga. We have looked at it twice before. The incident occurred in 2009.  In 2013 the Court of Appeal overturned a judge’s decision to grant the defendant relief from sanctions in relation to  the defendant’s late service of the witness statements.  In 2014  the claimant was partially successful at trial where the defendant was not allowed to call evidence. On appeal to the Court of Appeal  today the claimant succeeded in establishing  a   further finding of racial discrimination. The absence of evidence from the defendant played an important part in this successful appeal.

“… 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.”

THE CASE

The claimant brought an action alleging racial discrimination in the way she was arrested. She succeeded in establishing two acts of unlawful discrimination at trial.

COMPLEX INTERACTION

The appeal concerned with how a particular statute should be construed. In particular the statute put the burden of proof on the respondent.

1. 1. 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.

   2. 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.”

1. 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.

2. 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.

3. 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.

4. 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.

THE JUDGE’S (WHOLLY UNDERSTANDABLE) FAILURE TO CONSIDER THE RELEVANT SECTION

1. 1. 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.

   2. 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.

   3. 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.

   4. 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.”

1. 1. 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.

   2. 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.”

1. 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.

THE FINDING

1. 1. 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.”

1. 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.

2. 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.

3. 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.

4. 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.

5. 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.

6. 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.

THE FACT THAT THE DEFENDANT WAS DEBARRED FROM CALLING EVIDENCE

1. “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.”