Doughty Street Chambers Actions Against the Police Team

1
Doughty Street Chambers Actions Against the
Police Team

• DISCRIMINATION CLAIMS AGAINST
• THE POLICE AND PRISONS
• THE LEGAL FRAMEWORK
• Ulele Burnham

2
THE STRANDS OR GROUNDS

• Sex
• Race
• Disability
• Sexual Orientation
• Religion or belief

3
FORMS OF DISCRIMINATION

• Direct Discrimination
• Less favourable treatment essentially about
  parity of treatment
• Indirect Discrimination
• Application of neutral rule which has
  detrimental consequences for particular group
  essentially about disparate impact
• Victimisation
• Protects those enforcing anti-discrimination
  enactments either complainants, witnesses or
  those assisting them.

4
FORMS OF DISCRIMINATION (CONTD)

• Specific to Disability Discrimination
• Disability - Related Discrimination
• Less favourable treatment for a reason which
  relates to the disabled persons disability LFT
  than that which would have been afforded to a
  person to whom that reason does not or would not
  apply
• Duty to make Reasonable Adjustments
• Requirement to take positive action to modify
  tangible and intangible barriers to equal
  participation for disabled people

5
FORMS OF DISCRIMINATION (CONTD)

• Harassment
• Unwanted conduct which has the purpose or effect
  of violating dignity or creating hostile
  environment.

6

• RACE DISCRIMINATION
• The first strand to attempt to effectively
  prohibit discrimination by the police and to seek
  to create clear, effective and enforceable public
  duty.
• Race Relations Act 1976 (RRA), s.20 services
• Limitations of RRA 1976 pre-amendment
• Farah scope of s.20/lack of vicarious liability
• Race Relations Amendment Act 2000 (RR(A)A)
• As a result - s.19B brings public and hybrid
  bodies within the scope of the RRA for all their
  public functions

7
SECTION 19B

• It is unlawful for a public authority in carrying
  out any functions of the authority to do any act
  which constitutes discrimination.
• (1A) It is unlawful for a public authority to
  subject a person to harassment in the course of
  carrying out any functions of the authority which
  consist of the provision of -
• (a) any form of social security
• (b) healthcare
• (c ) any other form of social protection
• (d) any form of social advantage.

8

• SCOPE OF S.19B
• Applies to any functions of the public
  authority
• Applies to police, Prison Service, Probation
  Service, hybrid public bodies eg. Group Four,
  private prison companies (e.g. stop and search,
  arrests, criminal investigation and detention of
  suspects allocation of prisoners to particular
  prisons/regimes and imposition of prison
  discipline)
• Does not apply to judicial acts, decisions not to
  prosecute or any act done for deciding whether
  to prosecute but note limited interpretation of
  that exception intended by Parliament
• Only applies where s.20 does not (s.19(6) - note
  scope for s.20 in Brooks in the CA

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• DIRECT DISCRIMINATION
• Defn (s.1(1)(a) RRA)
• Less favourable treatment
• On racial grounds
• Need for a comparator but can be hypothetical
• Race need not be the only cause provided it is a
  significant influence (Nagarajan)

10

• INDIRECT
• DISCRIMINATION
• "A person discriminates against another ifhe
  applies to that other a provision, criterion or
  practice which he applies or would apply equally
  to persons not of the same race or ethnic or
  national origins as that other, but - 
• (a) which puts or would put persons of the same
  race or ethnic or national origins as that other
  at a particular disadvantage when compared with
  other persons,
• (b) which puts that other at that disadvantage,
  and
• (c) which he cannot show to be a proportionate
  means of achieving a legitimate aim" (RRA,
  section 1(1A)).

11

• INDIRECT DISCRIMINATION
• New definition introduced by 2003 Regulations
• Only applies to those claims within the scope of
  the EC Race Directive s.20 and those s.19B
  claims which apply to social protection or
  social advantage (OFlynn)
• Other claims will use old definition condition
  or requirement not provision, criterion or
  practice etc.

12

• VICTIMISATION
• Less favourable treatment
• On grounds of a protected act under the RRA
• HARASSMENT
• unwanted conduct on racial grounds which has
  the purpose or effect of violating that other
  persons dignity or creating an intimidating,
  hostile, degrading, humiliating, or offensive
  environment
• inserted into RRA by 2003 Regulations so also of
  limited scope
• Correlative provisions in other strands
• s.4A SDA s3B DDA no prohibition re
  non-employment harassment on grounds of sexual
  orientation or religion.

13

• DISCRIMINATION ON GROUNDS OF SEX, DISABILITY,
  SEXUAL ORIENTATION OR RELIGION
• Disability Discrimination Act 1995 see new
  ss.21D and 20E (from 30 June 2005) and new
  ss.21B-C (from 4 December 2006) prohibit
  discrimination by all public authorities
  (previously see services provisions at ss.19-21)
• Equality Act 2006, s.52 19B RRA prohibition
  applies to religion
• Equality Act ( Sexual Orientation) Regulations
  2007, Reg 8(1) 19B RRA prohibition applies to
  sexual orientation
• Human Rights Act

14
RELIGION

• Direct Discrimination s.45 EA 2006
• s.45(1) A person (A) discriminates against
  another (B) for the purposes of this part if on
  the grounds of the religion or belief of any
  other person except A (whether or not it is also
  As religion or belief) A treats B less
  favourably than he treats or would treat others
  (in cases where there is no material difference
  in the relevant circumstances)
• s.45(2) In subsection (1) a reference to a
  persons religion or belief includes a reference
  to a religion or belief to which he is thought to
  subscribe.

15
RELIGION

• Direct Discrimination Key Points re EA 2006
• New definition expressly protects non-believers.
• No requirement for philosophical belief to be
  similar to religion.
• Discrimination solely on basis of alleged
  discriminators religion/belief not unlawful.
• Discrimination on basis of complainants
  religion/belief unlawful even if it is also
  discriminators religion/belief.
• Religious Groups (Muslims, Christians,
  Rastafarians, Zorastrians) not previously
  covered by RRA definition of racial groups now
  covered.

16
SEXUAL ORIENTATION

• Direct Discrimination Reg. 3(1)
• For the purposes of these Regulations , a person
  (A) discriminates against another (B) if, on
  grounds of the sexual orientation of B or any
  other person except A, A treats B less favourably
  than he treats or would treat others (in cases
  where there is no material difference in the
  relevant circumstances)
• Discrimination on grounds of perceived sexual
  orientation expressly prohibited a reference to
  a persons sexual orientation includes a
  reference to a sexual orientation he is thought
  to have (Reg. 3(2)

17
DISABILITY

• Definitions
• For the purposes of section 21B(1) a public
  authority discriminates against a disabled person
  if -
• (a) for a reason which relates to the disabled
  persons disability, it treats him less
  favourably than it treats or would treat others
  to whom that reason does not or would not apply
  and
• (b) it cannot show that the treatment in
  question is justified under subsection (3), (5)
  or (7)(c )
• (2)a public authority also discriminates against
  a disabled person if-
• It fails to comply with a duty imposed on it by
  s.21E in circumstances in which the effect of
  that failure is to make it -
• (I) impossible or unreasonably difficult for the
  disabled person to receive any benefit that is or
  may be conferred, or
• (ii) unreasonably adverse for the disabled
  person to experience being subjected to any
  detriment to which a person is or may be subjected

18
DISABILITY

• Can be justified where
• Treatment or non-compliance with the duty is
  necessary in order not to endanger health
• The disabled person is incapable of entering into
  an enforceable agreement, or of giving informed
  consent, and for that reason the treatment, or
  non-compliance with the duty is reasonable in the
  particular case
• In the case of less favourable treatment,
  treating the disabled person equally favourably
  would in the particular case involve substantial
  extra costs and, having regard to resources, the
  extra costs in that particular case would be too
  great
• The treatment, or non-compliance with the duty,
  is necessary for the protection of rights and
  freedoms of other persons
• The acts of the public authority which give rise
  to the treatment or failure are a proportionate
  means of achieving a legitimate aim

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• DISCRIMINATION IN THE ENJOYMENT OF CONVENTION
  RIGHTS
• Article 14 "The enjoyment of the rights and
  freedoms set forth in this Convention shall be
  enjoyed without discrimination on any ground such
  as sex, race, colour, language, religion,
  political or other opinion, national or social
  origin, association with a minority, property,
  birth or other status".
• Notably open text wide scope of grounds
• Justification permitted even for direct
  discrimination
• Not free-standing ambit test
• HRA claim s.7(1)(b) and s.7(1)(a)

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• POSITIVE DUTIES
• RR(A)A imposed general duty (see Elias on
  enforceability)
• Also specific duties re Racial Equality Schemes
• CRE Codes of Practice
• New CRE step-by-step guide to race equality
  impact assessment
• Disability (DDA 2005, s.3, 4 December 2006)
• Gender (Equality Act, s.84, 6 April 2007)

21

• REMEDIES
• treated in the same way as any other claim in
  tort
• declaration specific remedy
• damages for injury to feelings
• aggravated damages
• exemplary damages (Kuddus)
• note specific police exceptions where ongoing
  police investigation