Police can be liable under Race Discrimination Act

LAW REPORT 17 October 1996

Farah v Commissioner of Police for the Metropolis; Court of Appeal (Lord Justice Peter Gibson, Lord Justice Otton, Lord Justice Hutchison) 9 October 1996

Police officers provided services to the public within the meaning of section 20(2)(g) of the Race Relations Act 1976 and acted unlawfully if in so doing they discriminated against a person on the grounds of race. But a chief officer of police was not vicariously liable under the Act for the discriminatory actions of his subordinates.

The Court of Appeal allowed an appeal by the Metropolitan Police Commissioner against the decision of Judge Harris, sitting in Central London County Court on 21 December 1995, refusing to strike out parts of the statement of claim of the plaintiff, Zeinab Farah.

The action arose out of an occurrence on 17 July 1994. The plaintiff, a refugee from Somalia then aged 17, claimed 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. The police officers who responded to her 999 call, instead of helping her and seeking to detain her attackers, arrested, detained and charged her with affray, common assault and causing unnecessary suffering to a dog. She was released on bail the same day. On 12 January 1995 she appeared to answer the charges and, no evidence being offered, was acquitted.

In her claim against the Commissioner for damages, including aggravated and exemplary damages, for false imprisonment, assault and battery and malicious prosecution, the plaintiff included an allegation that the officers' conduct amounted to unlawful racial discrimination. It was this last allegation which the Commissioner sought to strike out.

Section 20 of the 1976 Act provided:

(1) It is unlawful for any person con

cerned with the provision . . . 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 . . .

(2) The following are examples of the facilities and services mentioned in subsection (1): . . . (g) the services of any profession or trade, or any local or other public authority.

Section 53 provided:

(1) 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 then act is unlawful by virtue of a provision of this Act.

It was contended for the Commissioner that section 20 did not apply to police officers performing the duties of their office, since they were not providing a service; and that even if it did, the Commissioner himself could not be vicariously liable for breaches of section 20 by his constables.

Robert Seabrook QC and Duncan Macleod (Metropolitan Police Solicitor) for the Commissioner; Andrew Nicol QC and Heather Williams (Deighton Guedalla) for the plaintiff.

Lord Justice Hutchison said that, prima facie, section 20 was 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 were "any person concerned with the provision (for payment or not) of . . . services to the public". These words were entirely apt to cover those parts of a police officer's duties involving assistance to or protection of members of the public. There was nothing in the examples in section 20(2) that expressly or impliedly excluded police officers from the ambit of section 20(1). In his Lordship's view they fell within paragraph (g). There was no reason why a person performing a public duty might not also be providing a service.

The plaintiff's claim was that she sought the service of protection and because of her race was denied the protection others would have been afforded. It seemed that was no less the provision of a service than was the giving of directions or other information to a member of the public who sought them.

It followed that a claim of racial discrimination could clearly be made against an individual police officer by a member of the public.

As to vicarious liability, however, the prohibition in section 53(1) applied to both types of claim and identity of parties and was clearly expressed. Ordinary vicarious liability apart from the act did not suffice to found a claim; it was only to the extent that the Act permitted vicarious liability claims that they could be maintained.

It did not do so in this case and the claim under section 20 against the Commissioner must be struck out.