Authored By: Inaya Ahmed Khan
SOAS University of London
Case Title and Citation:
Durrant v Chief Constable of Avon and Somerset Constabulary [2017] EWCA Civ 1275
Court Name and Bench:
This case was governed by The Court of Appeal, Civil Division and on appeal from the High Court of Justice and County Court[1].
The relevant judges were Lord Justice Sales, Lord Justice Moylan, and Lady Justice Black, with contributions taken from Lord Justice Mummery, Lord Justice Balcombe, Lord Justice McCombe[2].
Date of Judgment:
The judgment took place and was delivered on the 17th of August 2017[3].
Parties Involved:
The parties involved in this case were Bianca Durrant, the appellant and petitioner, and the Chief Constable of Avon and Somerset, the defendant and respondent[4].
The petitioner and appellant, Ms Bianca Durrant, was a mixed-race woman who claimed she faced racial discriminatory treatment from the police specifically from the Chief Constable of Avon and Somerset[5].
The respondent and defendant, the Chief Constable of Avon and Somerset, was the constable who Ms Bianca Durrant claimed had treated her with racial discrimination in a series of events in 2009.[6]
Facts of the case:
The case concerns the appellant, Ms Bianca Durrant, a mixed-race woman, and her white friend Ms Puterill who were out in the Bristol city centre on both the 12th June and 13th June 2009[7]. Late into the night around the hours of 2.30am, the appellant Ms Durrant and her friend Ms Putterill decided to go and get a taxi from a taxi rank which was supervised by two taxi marshals[8]. When both Ms Durrant and Ms Putterill entered the taxi an argument began with the taxi driver after he demanded payment upfront and refused to show the two women his licence badge[9]. Ms Putterill in evidence claimed that there was an offensive racist remark made by one of the taxi marshals, so in anger she got out in order to confront him[10].
After this action, things had escalated with the taxi marshal seizing Ms Putterill and holding her against some railings[11]. The appellant, Ms Bianca Durrant, was also seized by the other taxi marshal and Ms Putterill had fallen to the floor with the first taxi marshal on top of her[12]. Mr Allen, a white bystander, then intervened to pull away the marshal that was on top of Ms Putterill and the other taxi marshal let go of Ms Durrant to help detain Mr Allen[13]. Ms Durrant then picked up her mobile phone from the floor and was seen on the CCTV video of the event to strike one of the marshals behind[14]. Ms Durrant maintained that she did this to try to assist Mr Allen who she believed was being assaulted[15].
The team monitoring the CCTV cameras in the city centre then called the police and reported the incident as an assault on taxi marshals by females, with one described as ‘black’ in reference to the appellant Ms Bianca Durrant[16]. A police van with a number of officers inside came to the scene, leaving the van with one of the marshals pointing them in the direction of Ms Durrant, Ms Putterill and Mr Allen.[17] The police officers focused their attention on the appellant Ms Durrant and a female officer, PC Brett, arrested Ms Durrant[18]. Initially the police did not attempt to arrest Ms Putterill and Mr Allen but instead waved them away, and in Ms Putterill’s case she was pushed away from the scene[19]. It was only when a taxi marshal had intervened that a police officer was persuaded to follow Ms Putterill and Mr Allen a little later and arrest them also[20].
Ms Durrant was placed in charge of PS Thorpe at the scene, and she was handcuffed with her hands behind her back by PC Brett and PS Thorpe[21]. Despite the police being disbarred from putting in witness statements for the trial, Ms Durrant put in evidence herself, relying upon a short written statement of PS Thorpe prepared for the purposes of a criminal prosecution later brought against Ms Durrant[22]. In the statement PS Thorpe suggested Ms Durrant was handcuffed in this manner as she was resisting arrest, however Ms Durrant’s provided evidence and the judge’s analysis of the CCTV footage from the scene found that she was not resisting arrest thus there was not a good reason for the appellant to be rear handcuffed in this manner[23].
Based on the evidence, the judge found the two acts of race discrimination to be (i) the targeting of Ms Durrant in juxtaposition with Ms Putterill and Mr Allen, who were white and (ii) the rear handcuffing of Ms Durrant[24].
Ms Durrant was also placed in the rear of the van’s secure compartment referred to as ‘the cage’ on route to the police station in comparison to Ms Putterill who was placed in the front of the van and not handcuffed[25]. Mr Allen resisted arrest and was taken to the police station in a police van separately[26].
Whilst on route to the police station, Ms Durrant was thrown about by the motion of the van and because she was rear handcuffed she was unable to keep a secure position in the van on the bench in the cage whilst police officers mocked her situation[27].
Ms Durrant after the police had reached the station, remained in the cage for a while before being taken out and processed in the police station[28]. Ms Durrant requested PS Thorpe and others to use the toilet four times with two of these requests being made in the cage and two further requests were also made when she was placed in a holding cell with officers[29]. CCTV footage also captured Ms Durrant urinating on the cell floor with officers present as her requests were denied[30].
Ms Durrant and Ms Putterill were released but voluntarily attended interview on the 15th July 2009 where Ms Durrant was searched and placed in a cell juxtaposed with Ms Putterill who was not searched and waited with an officer in a consulting room with access to a babysitter and magazines[31].
Issues raised:
This Court of Appeal case, on appeal from the High Court of Justice and County Court, raised the issue of whether there was race discrimination evident in the treatment of the appellant Ms Durrant in comparison to her white friend Ms Putterill.[32] There was also concern over the judge’s potential failure to consider the two-stage analysis within the Race Relations Act 1976 s57ZA (prior to the Equality Act 2010) in relation to discrimination when it was held that Ms Durrant, a mixed-race woman, was not treated with racial discrimination following her arrest for an alleged assault with a taxi driver[33].
Arguments of the Parties:
Ms Durrant believed that she had faced race discrimination in the series of events that took place involving her arrest by police officers, and appealed against rulings that she had not faced race discrimination by police in the following events in 2009: (i) being rear handcuffed and placed in the van’s secure compartment in the back in contrast with her white friend Ms Putterill who was unhandcuffed and placed in the front (ii) being thrown about by the van’s motion and officers mocking her (iii) being denied to use the toilet after requesting four times and urinating on the cell floor (iiii) being searched and placed in holding cell juxtaposed with Ms Putterill who was not searched and instead placed in a consulting room allowing a babysitter and magazines[34].
Judgment and Final Decision:
The judge in response to Ms Durrant’s claims of race discrimination found no evidence of such discrimination at the police station and held that although her claim regarding requesting to use the toilet four times was ‘amply justified’, this did not stem from racial bias[35].
However, the Court of Appeal allowed Ms Durrant’s appeal on the basis that: (i) the judge failed to consider the two-stage analysis under s57ZA of the Race Relations Act 1976 regarding discrimination and (ii) regarding Ms Durrant’s toilet requests the facts met the first stage analysis criteria under this act and it was ‘incumbent’ upon the officers in proving these actions were not racially motivated[36]. (iii) Regarding the police behaviour in the van ‘fair’ notice was not given to the judge so this aspect of the appeal is dismissed with no consideration of s57ZA of the Race Relations Act 1976[37]. (iiii) Regarding the search and placement in holding cell, the facts ‘did not give rise to a prima facie case of race discrimination which called for explanation by the police’[38].
Lord Justice Sales delivered the judgement, with Lord Justice Moylan and Lady Justice Black agreeing, that he would allow Ms Durrant’s appeal ‘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 officers concerned’[39].
The judge confirmed that in relation to the acts of alleged discrimination: (i) Ms Durrant’s targeted arrest in comparison with her white friend Ms Putterill and (ii) rear handcuffing, PC Brett and PC Thorpe’s actions stemmed from ‘unconscious racial stereotyping’ as opposed to conscious racial stereotyping[40]. Lord Justice Sales claimed this derived from ‘an unthinking expectation’ that Ms Durrant ‘most likely’ committed the assault and ‘might cause trouble’[41].
Cases such as Wong v Igen Ltd (Equal Opportunities Commission Intervening) and conjoined cases [2005] 3 All ER 812, Madarassy v Nomura International Plc [2007] IRLR 246 and Bahl v Law Society [2003] IRLR 640 were further applied as legal precedent[42].
Conclusion:
The case of Durrant v Chief Constable of Avon and Somerset Constabulary [2017] EWCA Civ 1275 highlights the concern of potential race discrimination in the wider police force and the importance of s57ZA of the Race Relations Act 1967 to the procedure of finding such discrimination, specifically police discrimination. This case suggests that despite efforts to tackle potential race discrimination in the police and criminal justice system, namely through the 1981 Scarman report, 1999 Macpherson Report, and 2017 Lammy Review among others, there is perhaps still a concern that ethnic minorities particularly blacks and mixed-race could be subject to potential racially discriminatory treatment. However, the judgment and court’s reasoning in this case concludes that such race discrimination in the appellant’s case is unconscious stereotyping rather than conscious[43].
Reference(S):
[1] Durrant v Chief Constable of Avon and Somerset Constabulary [2017] EWCA Civ 1275
[2] Durrant v Chief Constable of Avon and Somerset Constabulary [2017] EWCA Civ 1275 para 57
[3] Durrant v Chief Constable of Avon and Somerset Constabulary [2017] EWCA Civ 1275
[4] Ibid
[5] Ibid
[6] Ibid
[7] Ibid
[8] Ibid
[9] Ibid
[10] Ibid
[11] Ibid
[12] Ibid
[13] Ibid
[14] Ibid
[15] Ibid
[16] Ibid
[17] Ibid
[18] Ibid para 14
[19] Ibid para 14
[20] Ibid para 14
[21] Ibid para 15
[22] Ibid para 15
[23] Ibid para 15
[24] Ibid para 16
[25] Ibid para 17
[26] Ibid para 17
[27] Ibid para 18
[28] Ibid para 20
[29] Ibid para 21
[30] Ibid para 21
[31] Ibid para 26
[32] Ibid
[33] Ibid
[34] Ibid
[35] Ibid
[36] Ibid para 51
[37] Ibid para 44-46
[38] Ibid para 47
[39] Ibid para 57
[40] Ibid [149]-[150]
[41] Ibid para 16
[42] Durrant v Chief Constable of Avon and Somerset Constabulary [2017] EWCA Civ 1275
[43] Durrant v Chief Constable of Avon and Somerset Constabulary [2017] EWCA Civ 1275
