Durrant v Chief Constable of Avon and Somerset Constabulary (Rev 1) [2014] EWCA 2922 (QB) (29 August 2014)

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Cite as: [2014] EWCA 2922 (QB)

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		Neutral Citation Number: [2014] EWCA 2922 (QB)
		Claim no: HQ11X04427

IN THE HIGH COURT OF JUSTICE
Claim no: HQ11X04427
QUEENS BENCH DIVISION

ROYAL COURTS OF JUSTICE

29 August 2014

B e f o r e :

HIS HONOUR JUDGE SEYS LLEWELLYN QC
SITTING AS A DEPUTY JUDGE OF THE HIGH COURT
____________________

	BIANCA DURRANT	Claimant
	and
	CHIEF CONSTABLE OF AVON AND SOMERSET CONSTABULARY	Defendant

____________________

(Handed down 29 August 2014)
(Corrected 3 September 2014)
____________________

HTML VERSION OF JUDGMENT
____________________

The Claimant is a young woman of mixed race. She was arrested by police in Bristol in the early hours of 13 June 2009 on asserted suspicion of assaulting a taxi marshal. On 14 August 2009, following advice from the CPS, the Claimant was charged with an offence under section 4 of the Public Order Act 1986 and with assault. The matter came to trial on 25 February 2010. On the second day of the trial the prosecution offered no evidence against her and she was acquitted.

The Plaintiff makes criticisms of almost all of the police officers involved in her arrest, detention, prosecution, and the investigation of her complaints, and she complains of the failure of the police to prosecute the 2 taxi marshals.

In the present proceedings, she has over time served a number of documents by way of particulars of claim. The proceedings now include claim for false imprisonment (by unlawful arrest), assault (in that she was unlawfully and forcibly detained), malicious prosecution, race discrimination, breach of Article 3 of the Convention of Human Rights (in that the police treatment caused her humiliation in particular by being forced to urinate in a holding cell with others present) and misfeasance. By amendment, she later added a claim for defamation.

The police also arrested in the early hours of 13 June 2009 her friend Lisa Putterill, who is white, on asserted suspicion of assault at the taxi rank, and a Mr Allen, but they arrested them only after they had arrested the Claimant. The Claimant was placed in the rear, caged, area of a police van. Lisa Putterill was placed in the van itself, not in the caged area. Both she and Lisa Putterill were transported in the same van to the police station. Each was processed at the police station, but Lisa Putterill and Mr Allen were processed before the Claimant.

While detained in the police station, she informed police officers that she needed to use the toilet; there was a delay; and as a result of that delay to her humiliation she urinated on the floor in a holding cell where others were present, in particular male police officers and some male detainees.

The Claimant made complaint to the custody officer herself on the day of her arrest that she was the subject of racial discrimination in her arrest and/or treatment. She also made complaint of that after the day of her arrest to the Professional Standards Department (PSD) of the Defendant police force. Her complaints were the subject of investigation in 2009 but (save as to what was assessed as an inadvertent failure to accede to her wishes to go to the toilet) were not upheld in 2009. Following her acquittal in February 2010, she made formal written complaint seeking that the taxi marshals be prosecuted for having given false evidence, and also succeeded in having her complaint to the PSD reinvestigated, in fact by the head of the PSD. However the taxi marshals were not prosecuted and her complaint was not upheld.

In the present proceedings, the Court set a date for exchange of witness statements, and extended the date for compliance, but the Defendant failed to comply with the date set for exchange. The Defendant sought relief against sanction. Relief against sanction was granted by HHJ Birtles QC, but on appeal the Court of Appeal ruled that relief against sanction should not have been given and that the Defendant should not be permitted to rely upon its proposed witness evidence.

Thus in these proceedings the only witness statements served which may be relied upon are those of the Claimant dated 4 March 2013, Lisa Putterill dated 28 February 2013, and one from Mrs Durrant the Claimant's mother. The statement of Mrs Durrant senior was not central to the issues before the Court, and in the event she was not called.

I was shown CCTV footage of the following:

(i) at 2.30am, the incident at the taxi rank, the arrest of the Claimant, and the arrest of Lisa Putterill and Mr Allen

(ii) the holding cell at 3.38am and following, (the Claimant having arrived at the police station at 3.10am), and

(iii) the police station custody area, in this case with sound, from shortly before the presentation of the Claimant to the custody sergeant and then for some 45 minutes thereafter, from 4.01am.

The Claimant introduced in evidence the statements which had been given by the taxi marshals for the purpose of the criminal proceedings, not in order herself to rely upon them, but to show that they were inconsistent with what was shown on the CCTV footage.

I therefore heard as live witnesses only the Claimant and Miss Putterill. The Claimant is intelligent, and articulate. Lisa Putterill is anything but articulate and told me that she got into a "jiggle jaggle" when trying to put into words what had happened, and that she was "all in a jumble" when interviewed by police, particularly on the first occasion, on the day of her arrest on 30 June 2009, because of the experience which she had just undergone.

The Claimant's account of what led to her arrest is that she and Lisa Putterill had got into a taxi at the taxi point, had said where they wanted to go, and had been asked by the taxi driver to pay the fare upfront. Her father was a taxi driver and taxi driving was in the family with at least one other member of the family. She knew that a taxi driver was not entitled to demand payment before the fare was travelled and known. She showed that she had money to pay. She challenged the taxi driver. It raised in her mind whether he was a genuine taxi driver and she asked to see his badge. He did not show it. She and Lisa Putterill were females and it was unsafe to accept being driven by someone who was not licensed and badged to drive. The evidence of Lisa Putterill is that an offensive racist remark was made by one of the taxi marshals about the Claimant and she, Lisa, got out furiously to confront the taxi marshal.

The reaction of the first taxi marshal was to seize her and hold her against the railings. When Miss Durrant got out of the taxi, she too was seized, by the other taxi marshal, and herself held by the railings. One can see on the CCTV that Lisa Putterill falls to the floor with the first taxi marshal falling on top of her. It is immediately after this that Mr Allen is seen to intervene to pull away the taxi marshal who had fallen on top of Miss Putterill. The second taxi marshal then releases Miss Durrant in order to go to help the first taxi marshal detain Mr Allen. Miss Durrant can be seen to pick something up off the floor (explained by her in evidence to be her mobile phone). Thereafter Miss Durrant strikes at the second taxi marshal from behind, while on the CCTV camera's side of the railings, and Miss Durrant having gone round to the other side of the railings, (Lisa Putterill having been released and apparently been away from the marshals on the other side of the railings near what I was told is a cash point), Miss Durrant is seen for an instant or two to hold her phone (as she explains to me) and then to move in and strike a taxi marshal.

Critically, the evidence of the taxi marshal Fagan was that Lisa Putterill (not by name but by description and where she was) assaulted the taxi driver; and the evidence of the taxi marshals was that they had acted in consequence of that and to restrain any further offence.

Critically, in the event, the evidence of the taxi driver, once his written statement was later taken, was that he had not been assaulted. (At the hearing at the magistrates' court, he did not accept that he had been guilty of misconduct, his evidence was that Miss Durrant had been abusive towards him, but that he had not been assaulted by Lisa Putterill). It appears that the decision not to offer further evidence was taken by the prosecuting officer of the CPS after the evidence of the taxi driver had been received.

The case for the Claimant is that once it was known that the taxi driver was not alleging assault, the evidence of the taxi marshals was shown to be false, and once their evidence was shown to be false it could not be justified to prosecute her whether for any assault on a taxi marshal or for a public order offence.

Unlawful arrest. This has not featured centrally in the case as presented to me, which centred on racial discrimination. It is clear from the police log that those operating and monitoring the CCTV cameras in Bristol city centre reported the incident to the police, in terms of an assault on taxi marshals, by [females including one initially described as "black"]. The sensible and obvious inference is that the police officers who attended at the scene did so in reliance on that logged report and its contents. It is also clear from the CCTV footage that as the police left their police van and moved forwards towards him one of the taxi marshals, in the high visibility tabard of a taxi marshal, pointed them in the direction of the Claimant, whether alone or together with Lisa Putterill and Mr Allen.

Once police officers surrounded the Claimant, it is a short period of time before she is arrested by them.

In O'Hara Lord Steyn said at 293C, "certain general propositions about the powers of constables under a section such as section 12(1) can now be summarised. [That section is akin to that with which the court is concerned in the present proceedings]. (1) In order to have a reasonable suspicion the constable need not have evidence amounting to a prima facia case. [At a preliminary stage of the investigation,] information from an informer or a tip off from a member of the public may be enough: Hussien –v- Chong Fook Kam (1970) AC 942, 949. (2) Hearsay information may therefore afford a constable reasonable grounds to arrest. Such information may come from other officers: Hussien's case ibid. (3) The information which causes the constable to be suspicious of the individual must be in existence to the knowledge of the police officer at the time he makes the arrest. (4) The executive "discretion" to arrest or not, as Lord Diplock described it in Mohammed-Holgate v Duke [1984] AC 437, 446, vests in the constable, who is engaged on the decision to arrest or not, and not in his superior officers".

Lord Hope at 298A and 298C stated, "the test which section 12(1) of the Act of 1984 has laid down is a simple but practical one. It relates entirely to what is in the mind of the arresting officer when the power is exercised. In part it is a subjective test, because he must have formed a genuine suspicion in his own mind that the person has been [concerned in acts of terrorism]. In part also it is an objective one, because there must also be reasonable grounds for the suspicion which he has formed….. This means that the point does not depend on whether the arresting officer himself thought at that time that [the grounds for the suspicion which he has formed] were reasonable. The question is whether a reasonable man would be of that opinion, having regard to the information which was in the mind of the arresting officer….. as it is the information which is in his mind alone which is relevant however, it is not necessary to go on to prove what was known to his informant or that any facts on which he based his suspicion were in fact true".

Miss Durrant submitted that without witness evidence from police officers the Defendant could not prove what was in their minds and thus could not prove lawful arrest. However direct witness evidence from a police officer cannot always be necessary: what if another person sees an assault take place in front of, and evidently seen by, the police officer who then arrests the person who threw the blow? Even without direct evidence from the police officers here, it is unreal to suppose that they were not acting upon the logged report, which did reasonably support a genuine suspicion that the Claimant was or may have been guilty of an assault on a taxi marshal. Argument was not addressed to me upon whether the police officers also had a subjective belief that arrest was necessary, and/or whether that belief was objectively reasonable. If it were likely, or offered, by the person arrested to come for interview voluntarily, belief in necessity of arrest might be in issue; such is not asserted here. If it were clear at the scene that her account was preferable, likewise, but here there were at best conflicting accounts. The burden of proof is on the police of belief, and reasonable belief in necessity of arrest, but the realities are commanding that police officers would believe arrest necessary, and reasonably so, in default of offer to come to the police station or explanation which could not fail to be accepted.

It is a different matter whether there may have been racial discrimination. It may be self-evident that if I were to conclude that the arrest was motivated by conscious racial discrimination, I would revisit whether arrest was unlawful. I consider the circumstances of the arrest in the context of asserted racial discrimination further below.

Racial Discrimination. In her various Particulars of Claim, and in her Skeleton Argument, the Claimant has focussed on European Racial Equality Directives and or case law including the prohibition of discrimination on any grounds such as race or colour under Article 14 of the European Convention of Human Rights.

The acts complained of by the Claimant occurred before 1 October 2010, (with the exception of the alleged failure of the Defendant by its PSD to uphold her grievance, a decision communicated on 5 October 2010), and so occurred before the coming into force of the Equality Act 2010. The acts of alleged racial discrimination therefore fall for consideration under the Race Relations Act 1976.

Section 1 of the Race Relations Act 1976 defines racial discrimination, stating that "(1) 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 than he treats or would treat other persons". This is at the kernel of the Claimant's allegations.

There are other provisions, against indirect discrimination under s1(1)(b), s1(1)(A): and s1(1)(B); but these go rather to forms of indirect discrimination, whereas the Claimant's allegations are of direct discrimination, whether conscious or unconscious in origin.

I did not identify any matter prescribed in the European Directive which is not reflected in, or any more precisely prescribed than in, the domestic legislation of England and Wales.

Jurisdiction. Mr Payne, counsel for the Defendant, raised a question of jurisdiction. Claims which are made under the Race Relations Act 1976 are required to be brought in "designated County Courts and determined by a judge sitting with a assessors" (s67(4) Race Relations Act 1976). Further "In any proceedings under this Act in a designated County Court….. the judge…. shall, unless with the consent of the parties he sits without assessors, be assisted by two assessors appointed from a list of persons prepared and maintained by the [relevant Minister], being persons appearing to the [relevant Minister] to have special knowledge and experience of problems connected to the relations between persons of different racial groups".

The obligation to have two assessors, in the absence of express agreement to the contrary by the parties, was underlined in Denman –v- Commission for Equality and Human Rights [2010] Civ 1279). Both the Claimant and the Defendant expressed immediate willingness for me to sit without assessors.

In one sense, that is sufficient: it is for the parties to decide whether they wish to waive this requirement. In this sensitive area, I consider that a judge should independently consider whether it is appropriate to sit without assessors, since one must be alert not, inadvertently or unconsciously, to lean intrinsically towards or against the likelihood of there having been racial discrimination. I considered that I should accede to the invitation to sit without assessors: (i) I have received equality and ethnic minority training under the auspices of the Judicial Studies Board; (ii) I have experience of litigating and trying other cases claiming racial discrimination; and (iii) upon completion of my university studies I resided for two years at a Commonwealth Post Graduate students' residence, in part because of my interest in and a wish to gain knowledge of and to understand wider cultures.

As to the court in which such a claim must be tried, the provisions of the 1976 Act are express that claims such as the present are to be decided in designated County Courts, (among which are the London County Courts),. I indicated to the parties that in order properly to exercise jurisdiction over these claims I was minded to transfer the matter to the county court. No objection was raised by the parties. Accordingly I have done so in respect of the claims of racial discrimination.

Discrimination and/or victimisation on account of race. The Claimant alleges racial discrimination against her, and victimisation of her on account of her having presented a complaint of racial discrimination.

The Claimant is a litigant in person. I have remarked on her intelligence. Her pleadings, and skeleton argument, are over-complicated, and the sequence of complaint is often not easy to follow; however it now emerges with reasonable clarity. She complains of her treatment on during and immediately after arrest as different from that of Lisa Putterill, a friend who is a white female, and the comparator on whom she relies. She complains that on 15 July 2009 when they both attended the police station for further interview, her white female friend was given indulgence in not being confined to a cell, and otherwise, in a way which was not extended to her. After the date of arrest, her complaint is that successively her complaints were wrongly dismissed or belittled by the police officers tasked to investigate her complaint, in respectively the reports of the first and the second PSD investigation, the response of individual officers tasked to report upon her complaints in those investigations, and failure to prosecute the taxi marshals.

I was able to observe the Claimant herself, during more than a day of evidence, and throughout the trial. She is undoubtedly over-sensitive in her perception of racial discrimination. The conduct of Mr Payne counsel for the Defendant was fair and proper throughout. The questions which he put to the Claimant, in exploring and putting the case of the Defendant, were impeccable in their moderation and care. On a number of occasions, when the Claimant was finding it difficult to locate an entry in a document or witness statement, he gave assistance. He adhered fully to the duty of counsel to inform the court of any reported authority, (of which the Claimant might be unaware, and to which the court ought to be alerted), in case they might assist her as a matter of law. Notwithstanding all of this, the Claimant accused him heatedly during his cross-examination of being a racist because he was exploring matters which were, or might be, adverse to her case.

If the matter of race, and her passionate beliefs, were not engaged, I am satisfied that, with her intelligence, she would be capable of appreciating this. However it does not follow from this over-sensitivity on her part that her complaints of racial discrimination are ill founded. It scarcely needs to be said that the Race Relations Act 1976 was introduced for very good reason, because of the scale and malign effect of discrimination against minorities based on ethnicity, whether conscious or unconscious. It is also the case that those who are not in the white majority of the population may for good reason be more alert to, and sensitive to the effects of, racial discrimination than others. Lastly those who are in truth the object of racial discrimination may thereby become sensitised to perceived discrimination.

For reasons which I explore further below, I consider later and separately the complaint of discrimination at the scene of arrest and thereafter on 13 June 2009 itself; but throughout I have considered whether events before or after reveal or cumulatively support her claims of racial discrimination irrespective of whether taken on their evidence individually they would succeed.

As to all of the complaints of racial discrimination, or victimisation, the Claimant puts the complaint very high.

"Overtly its Professional Standards Department carried out official investigations into my complaints against arresting police officers…. and of misconduct towards me of racial discrimination, unlawful arrest and false imprisonment, unnecessary and excessive force, human rights abuses, unlawful treatment of a female suspect in custody in a police station and abusive and arbitrary prosecution and my criminal complaints against taxi marshalls Daniel Breeze and John Fagin .. … while covertly [emphasis supplied] it allowed its senior police officers of the Professional Standards Department to carry out an unlawful sinister racial victimisation campaign against me with the sole corrupt intention and purpose to criminalise me and legitimise the knowingly unlawful actions under statute law of taxi marshalls Daniel Breeze and John Fagin to myself and my accompanying white female friend Lisa Putterill, to corruptly cover up police officers' unlawful actions against me in the arrest and detention by legitimising them in an unlawful biased false prejudicial investigation which the investigating officer Inspector Andrew Jackson unlawfully and falsely prejudged me as guilty before conviction … and in the second unlawful and biased false investigation the senior investigating police officer Chief Inspector Norman Pascal appointed himself as the new Lord Chief Justice presiding over his own Supreme Kangaroo Court of the Avon and Somerset Constabulary to contemptuously overrule the lawful judicial ruling of the criminal court of law in my prosecution trial…" (skeleton argument of the Claimant for trial in July 2014 at paragraphs 43 and 44).

The Claimant says that the investigators themselves acted unlawfully, "to corruptly conceal known evidence material to the investigation to bring about a knowingly false conclusion to pervert the course of justice in my official complaints of racial discrimination" (skeleton argument paragraph 45).

As to the criminal charges brought against her, and the continued prosecution of her, her complaint rests very heavily on her firm, and indeed passionate, belief that (i) the taxi marshals were shown to have given false evidence and (ii) it must have been plain to any reasonable person considering the statements and CCTV footage that she was innocent.

The Race Relations Act 1976 Act provides, at section 19B of the 1976 Act,

"(1) It is unlawful for a public authority in carrying out any functions of the authority to do any act which constitutes discrimination".

The functions of a police force are functions of a public nature and therefore the police force is a "public authority" within the meaning of section 19B (see section 19B(2)).

Interview and treatment on 15 July 2009. Both the Claimant and Lisa Putterill attended for interview, after 13 June 2009 itself. The Claimant points out that the custody record relates of herself, "DP polite and reasonable".

She was placed in a cell. Without more explanation, I would expect this to be deeply unattractive to the person to be interviewed, particularly if that person has attended for interview voluntarily. It is apparently normal practice. I understood the Claimant to accept that such was normal, if interview could not be undertaken immediately, in the presence of her legal representative. However interview could not be undertaken immediately here. At 19.32 it is recorded that the solicitor is still awaited. Therefore to place her in a cell was normal practice, and thereby it was normal to search her. She does also point to the fact that it was an intensive search of her, and her property.

The course of events for Lisa Putterill was different. Lisa Putterill was permitted to wait in a consulting room, with a police officer present. This is not usual procedure, and the Claimant says that it is an indulgence not granted to herself; moreover no search was undertaken of Lisa Putterill or her property, unlike what happened to her.

In the later report, of Inspector Pascal, it was said that "as she [Miss Putterill] was not being placed in a cell on her own, it was not necessary to search her". The Claimant accepted before me that this may be true, but it does not, she says address the fact that Lisa Putterill was allowed indulgence in the first place, an indulgence denied to herself.

The matter goes further, says the Claimant, at 21.11 according to the detention log, Lisa Putterill on route to her cell had been allowed to call a babysitter and been given magazines. The same indulgence is not accorded to herself.

These are matters of potential significance, particularly if in other instances the Claimant shows discrimination between herself and her friend Lisa Putterill which is not explained save on grounds of race, whether conscious or unconscious.

I do not underestimate the searing effect of being arrested on the Claimant herself; and as will be seen below, I consider that this may account for her making no suggestion on 13 June 2009 itself that the actions of Mr Allen were in "defence of another", which throws an entirely different light on her own actions immediately thereafter in striking the taxi marshal who was engaged with Mr Allen. I note also that there were two occasions during the trial before me when the Claimant needed time to compose herself when recalling matters. Nonetheless in ability, and in composure, the Claimant is of a wholly different character to Lisa Putterill. During detention on 13 June 2009 itself, the appearance of the Claimant to others, as shown on the CCTV footage, is one of being fully able to hold her own (in a mixture it seemed to me of anger and weariness), and of being fully able to articulate her complaint that "exactly the same thing" had happened to her before. In the holding cell, she was angry at how she had been treated, but on the CCTV footage she visibly controls herself as she speaks to the police officers. By 15 July 2009 I have no doubt that she was, if angry, composed. This is consistent with the custody record description of her as polite and reasonable.

By comparison, the custody report in respect of Lisa Putterill on the same date records that she was 'upset and tearful'. I was able to observe Miss Putterill giving evidence: she was labile, and extremely nervous. She is of similar age to the Claimant, but appeared younger and, to me at least, somewhat fragile. This is nothing to do with race or colour.

Intrinsically there is a hint of rigidity in the strong view of the Claimant that whether or not her friend was very upset, she should not have received any kindness or indulgence such as in her particular case the police afforded. If there is other evidence of racial discrimination on the part of those police officers who were concerned with the treatment of Lisa Putterill and the Claimant on 15 July 2009, it can alter the impressions of a judge upon hearing the evidence as to the evening of 15 July itself. Here, having seen the Claimant and Miss Putterill, and having received evidence from Miss Putterill herself as to her state of mind and feelings on 15 July 2009, it is likely that of the two persons to be interviewed, the one appeared vulnerable and distraught to police officers and the other appeared resolute. Such is readily capable of explaining the difference in treatment. Lastly a degree of humanity surely has some role to play in the treatment of a person attending a police station for interview, if she appears distraught. If, after 30 June 2009 itself, this is the only matter where inference could be drawn of racially discriminatory treatment, I find the case for discrimination on racial grounds, conscious or unconscious, unimpressive.

The PSD report of Inspector Jackson. I have recorded that the Claimant made complaint to the PSD. This concluded with the report of Inspector Jackson that Miss Durrant was not discriminated against, or stereotyped, and that her arrest and transportation in the van cage was perfectly normal.

A part of her complaint is that Mr Jackson did not take witness statements, only notes, and that he did not take a witness statement from Lisa Putterill.

At the stage of investigation, as opposed to pursuit of proceedings if a decision were taken for disciplinary action or warning, there is nothing unusual in notes being taken as opposed to a statement.

As to whether or not a statement was taken from Lisa Putterill, the Claimant had already identified the differences in treatment of which she complained, and I am unclear as to what Miss Putterill would have been able to add. I have considered the report of Inspector Jackson with care. It may be that another investigating police officer would have been more, or less, sympathetic to the complaint made by the Claimant. However whilst its conclusions were not what the Claimant wanted, I have been unable to derive from its contents any sign of a closed, or tilted, mind.

In this, and in other respects, the Claimant is so passionate in her belief that she says, or comes close to saying or arguing, this: 'If someone disagrees with what I believe, they must be wrong, and if they are wrong they must be guilty of racial discrimination'.

In her witness statement the Claimant said that when Inspector Jackson came to her house, (she believes on 7 July 2009), he was rude and unsympathetic, stating that some of her complaints were "pathetic". However, he did in fact uphold the Claimant's complaint in respect of the episode of urination. The Claimant argues that no other finding was open to him, with CCTV footage which demonstrated the fact of urination. That does not do justice to his reported investigation. In it, he established inconsistencies between PS Thorpe (who claimed to have relayed the requests for toilet facilities), and the custody sergeant (who on his enquiry of her stated that only one request had been relayed to her). It was a careful and genuine investigation. It cannot logically suffice to show discrimination that the report did not uphold the Claimant's complaints of discrimination, however strongly the Claimant believes in those complaints.

The report states that the arrest and handcuffing was captured on CCTV and that the application of the handcuffs was easily and quickly achieved. That is the impression on the CCTV footage which I have viewed. Inspector Jackson did not uphold complaint that the handcuffs were applied too tightly. I consider that his report does concentrate on whether the statements of police officers corroborated each other, and it seems to me that this was the start not the end of enquiry. The same may be said of his report that the custody sergeant said that there were no visible injuries. However the report also refers to the fact that "When examined by a health professional in custody, a note was added that there were "No signs of injury to the wrist". This is true and accurate. Miss Durrant told me of an indentation the size of a penny which would have disappeared by the time of examination the next morning. This said, Inspector Jackson considered each of the sources of evidence, and the independent evidence of the health professional was bound to weigh in the balance. I cannot see evidence of preconceived thought or bias in this aspect of the report.

The report also correctly records that the taxi marshal directed the police officers on their arrival at the scene. Inspector Jackson states "I have viewed the cctv of the incident and Muss Durrant can clearly be seen to assault the taxi marshall". This is factually correct. It was only when Miss Durrant later gave her account of acting in defence of another that the explanation of it would be available to those considering her complaints.

In relation to complaint of lack of offer of food or refreshment and/or the fact of a blanket having had a hole in it, the report was accurate insofar as it recorded that "An entry at 04.58 hours noted that Miss Durrant had been offered and declined a blanket. At 12.31 hrs, another entry noted that her blanket was changed at her request as there was a hole in it" and is accurate in stating that the custody record related that she was offered food at appropriate intervals. Miss Durrant contests this as an accurate record but it is unsurprising if an investigation such as this places weight on contemporaneous entries in the records.

It is also of some note that the Claimant appealed Inspector Jackson's investigation report to the IPCC on 03.11.2009 ("on grounds it was unlawful false biased and did not contain the evidence of my comparator", statement of the Claimant at paragraph 74), yet by decision of 26 November 2009 the IPCC did not uphold the appeal.

I am respectfully unpersuaded that in relation to the report of Inspector Jackson there is any sufficient indication or support for a finding of unlawful discrimination on grounds of race.

Non-prosecution of the taxi marshals. Following their own acquittal of the charges against them, on 4 March 2010 she and Lisa Putterill attended the police station to make written criminal complaint against the taxi marshals. No prosecution was undertaken against them. The Claimant contends that this is as a result of discrimination against her, and or victimisation.

If there were no statutory exception, she would be entitled at least to pursue a claim for breach of section 19B of the Race Relations Act 1976, (above), on the asserted basis that the failure to prosecute was founded in discrimination on account of race.

However section 19F of the 1976 Act provides,

"Exceptions from 19B for decisions not to prosecute etc.

Section 19B does not apply to – (a) a decision not to institute criminal proceedings and, where such a decision has been made, any act done for the purpose of enabling the decision whether to institute criminal proceedings to be made".

This provision is binding on me. No argument was raised before me that the insertion of this provision is impermissible under the relevant Article, or European Directive.

Since the Claimant is a litigant in person I endeavoured to make my own researches, but I have not found any authority which would suggest that the insertion of this provision is impermissible by reason of the relevant Article, or by reason of any European Directive; or that the Court should seek to read down section 19F in order to comply with any European Directive. It would be perhaps surprising if there were: this provision is presumably inserted in the 1976 Act by Parliament as a matter of policy that those who are advising, or deciding, whether to prosecute should not be encouraged to do so, or discouraged from doing, so for fear of being accused of racial discrimination.

In short, I conclude that by virtue of section 19F of the 1976 Act, the Claimant is not permitted to pursue a claim based on the asserted failure of the police to prosecute.

It might be argued that this exception applies only to decision to prosecute, not defect if any in the investigation which led to that decision. Accordingly I consider the Claimant's criticisms of the police officers tasked with that investigation.

The Claimant states that following written complaint against the taxi marshals, PC Underhill was tasked to investigate the complaint, subject to supervision of DS Goss. She says that in mid April by telephone PC Underhill not merely said that they would not be taking any further action but said "you are guilty of assaulting them and they were just doing their job".

She also complains that she had pressed, and pressed, to get a formal written answer as to whether the matter would be pursued; but as to this, the decision not to prosecute is a matter in respect of which claim is not permitted (see above).

It is of some note that PC Underhill was not of the same unit as the police officers who had been involved in the arrest transportation and detention of the Claimant, and was attached to the Hate Squad. This is a squad which is tasked with investigating discriminatory offences. In oral evidence, the Claimant was dismissive: "Yes. And they don't".

However she had been equally dismissive of the ethnicity of DS Fielding, who interviewed her, and whose role she criticises, who was black. In a number of respects, her detailed criticisms are in my judgment over-complicated, and do not fairly reflect the content of that which she criticises.

An illustration is her complaint that the report by PC Underhill of the history of matters, after the acquittal of the Claimant at the Magistrates Court, refers to the taxi marshals as "victims", whereas she says that it was she was the victim of assault at their hands. This is an empty point: in the same document the Claimant is referred to by PC Underhill as the "victim". The reference to the taxi marshals as victims is plainly taken from an earlier resume, and is preceded by the reference to the Claimant herself as the victim.

In my judgment the critical matter is whether she was subject to unlawful discrimination in the conclusions and/or recommendations in the further PSD report by Chief Inspector Pascal.

It is worthy of some note that the Defendant's PSD had been willing to investigate the complaints of the Claimant a second time, and that the person who did so was Chief Inspector Pascal who was head of the PSD.

As I have related, the Claimant says that he unlawfully concealed the known comparator, she says that no statement was taken from the comparator, and I understood the Claimant in her oral evidence (until challenged) to suggest that no enquiry had been made of Lisa Putterill. In fact, Chief Inspector Pascal had spoken to Lisa Putterill, and on not one but two occasions, 13.9.2010 and 15.9.2010 (Bundle D2/613).

Further, it is clear from the attachments to his report that he had interviewed or made enquiry of a the following; (i) by interview, Breeze and Fagan the two taxi marshals (on 6.9.2010, and 3.9.2010); by investigation, variously, (ii) Inspector Jackson (7.9.2010); (iii) PS Hobbs (on 8.9.2010) in respect of the indulgence given to Lisa Putterill on 15 July 2009 (expressly recording that the fact that the officer offered to wait with Lisa Putterill in a consulting room "is most unusual"); (iv) DS Fielding (on 14.9.2010); (v) PC Brett (on 6.9.2010); (vi) PS Thorpe (on 14.9.2010); (vii) PC Underhill (on 15.9.2010); and (viii) DS Goss (on 15.9.2010).

In oral evidence, when taken to these documents, the Claimant was willing to accept that 'on the face of it everyone relevant had been spoken to or interviewed by Chief Inspector Pascal' but she spoke in strong terms that he was perverting the course of justice, as he was not bringing offenders to book in respect of their racially aggravated assault. She further complained that DS Goss and PC Underhill had made the decision themselves not to pursue a prosecution, without referring it to an Inspector "as should have been done, and … Chief Inspector Pascal had not recognised this".

I accept that the Claimant honestly believes that a failure to accept her innocence, once the taxi driver's statement and the CCTV footage were available, was inexplicable and biased. The taxi driver's statement makes clear that he did not allege that there had been assault by either of his female passengers the Claimant or Lisa Putterill against him, which is what the taxi marshal evidence asserted. Further the Claimant's evidence in these proceedings is that she accepts that she struck the taxi marshal, but she did so in an attempt to free Mr Allen – in other words, in lawful defence of another. In criticising others, the Claimant makes no allowance for the fact that in no document available to the police or the CPS, by way of interview or otherwise, was there acceptance or assertion by her that she had struck the taxi marshal; whereas anyone who viewed the CCTV footage would be struck by the fact that she did so; or for the fact that she had not suggested that, if she did, then it was in defence of Mr Allen, either in her first or her second police interview. I have noted, and repeat, that the Claimant is an intelligent woman; however, in her evidence before me, she was incapable of grasping the significance of this.

By the time of the review by the CPS in December 2009, the issue was identified to the Court. The witness statement of Fagan stated that the taxi marshals intervened 'to prevent the commission of a criminal offence'. For myself, I doubt whether I would have given the same regard to this statement as the CPS reviewer appears to have done. Equally, since I have the advantage of seeing and hearing the Claimant's full and detailed present account which accepts that she struck the marshal but raises the defence of another, (not the limited comment which she gave in interview) I would have taken a strong, or stronger, view of the taxi marshals' apparent actions than did the CPS reviewer. However I have the luxury of knowing in full what the Claimant's case and evidence is, in support of that case.

First, this was a review by the CPS, not by the police. Second, there is force in Mr Payne's submission that I should not, with hindsight, impose my own view of what the CCTV footage appears to show, and disregard all possibility of others taking a different view of the Claimant's acts.

In his own report Mr Pascal stated, "There is no evidence of lies or misrepresentation by any officer. Where there are inconsistencies there are minor and only to be expected where witnesses have independently provided accounts… Miss Durrant cannot apparently accept that these discrepancies are anything other than deliberate lies designed to further the prosecution against her..[she]must accept that inconsistencies can occur quite innocently".

The statements of the police officers are a book closed to me; I have looked only at the statement of PS Thorpe which the Claimant wished me to consider. I remain fully alert to the complaint that the actions of police officers were motivated by racial discrimination, conscious or unconscious, but nothing has been drawn to my attention which supports an accusation of deliberate lies on the part of police officers. Mr Pascal was entitled to note that there were inconsistencies in the account of Miss Durrant herself which he accepted were innocent (as to alcohol intake, see D Bundle 780).

He also stated in his report, "Reviewing CCTV evidence is always open to a certain amount of conjecture – and those present at the actual scene often present differing accounts for events". So far, that is a truism for those experienced in dealing with cases where CCTV evidence is available. He continues "I am satisfied that any review of CCTV has been done appropriately and accurately reflects the evidence available from it".

I am able to form my own view of the CCTV evidence, albeit I have not heard evidence from the police officers as to their own actions at the scene, but I am able to do so not only after hearing live evidence of the Claimant at some length, but also in the light of her acceptance of having struck the taxi marshal and her explanation of defence of another which was not made known until the case reached the magistrates' court, (see above). I cannot see lack of impartiality or bias in these observations by Chief Inspector Pascal.

In that report he was willing to accept that the taxi driver was not entitled to demand payment of a fare up front, but stated that he found is surprising that such a request escalated in the manner it did. He expressed some doubt about Miss Durrant's assertion that she was concerned that he was a real taxi driver but he did so only after his conclusion that there was insufficient evidence to uphold the complaint as it was a case of 'one word against another'.

Miss Durrant takes particular exception to his observation in the report that "Whilst no criminal offence have been proven they [Lisa Putterill and the Claimant] are not the innocents that they wish to portray …Even if her account is to be believed I find no excuse for their continued poor conduct. Miss Durrant certainly had a mobile phone and could have called the police to report the apparently 'unlicensed] taxi driver". She seems to treat this as an observation that she was guilty of the offence which had been charged against her, in disregard of her acquittal. As to this, it is plainly not what Chief Inspector Pascal was saying.

If her complaint is that she can be seen on the CCTV footage to pick her mobile phone and attempt to use it, then on what I have heard in direct evidence she is probably right, that she attempted to use it – although remarkably briefly – but it cannot be said that this is self-evident from the footage alone unaided by such evidence as I have had directly before me.

The Claimant's suggestion that Chief Inspector Pascal concealed information or evidence in his report is unsupported by any evidence whatsoever.

I do not accept the contention that his report was the product of a mind closed to the possibility of racial discrimination against the Claimant. The Claimant may have been so sensitised by experience of racial discrimination against her in fact that she does not view these matters dispassionately. Whether or not that is so, I conclude unhesitatingly that on the evidence she has shown no evidence of discrimination against her on racial grounds in the report of Chief Inspector Pascal.

As indicated above, I propose to return below to the circumstances of initial arrest, and comparison of the treatment of the Claimant herself with that of Lisa Putterill (and/or Mr Allen).

The claim under Article 3. The Claimant makes claim in respect of the failure to let her do to the toilet despite her repeated request to do so after arrival at the police station on 13 June 2009, with the result that in the holding cell she was no longer able to contain herself, and had to lower her trousers so as to urinate, this being in a holding cell where police officer were present, and indeed other male detainees.

There is no dispute that this happened. Moreover the Claimant told me that she had made request on 4 occasions, without the request being granted.

Article 3 of the European Convention on Human Rights states that "no one shall be subject to torture or to inhuman or degrading treatment or punishment".

No-one could sensibly doubt that this was humiliating for her. She received "a full apology" on behalf of Avon and Somerset Constabulary for the loss of dignity she suffered, by letter of 6 October 2009, in respect of "the lack of courtesy and respect shown to you whilst in the holding area at Trinity Road Police Station, a complaint found to be proven" letter dated 6 October 2009) ... to be unable to use a lavatory whilst in custody is unacceptable". An offer of compensation in the sum of £200 was made. Perhaps I am permitted to say that this sum seems to me barely to reflect the degree of distress and humiliation which a woman will have suffered in these circumstances.

It was not an apology for conscious misconduct. In the letter of apology and offer of compensation, Chief Inspector Hilary Martin stated, "I am, however, satisfied there was no intention on the part of any officer to cause you distress and that the situation arose through a lack of communication, pressure of work and the length of time it took to arrange your use of the toilet".

The Claimant, a litigant in person, contends that this is self evidently "degrading treatment" within the meaning of Article 3.

She also complains that when handcuffs were applied to her, over a bangle on her left wrist, she suffered great discomfort, that there was an indentation in her skin the size of a penny where the end of the bangle had pressed upon her, and to which she drew the attention of the custody officer.

It is plain that she did make complaint to the custody officer, although the custody record relates that the custody officer could not see an injury. Later in the morning, her wrist was inspected by a nurse, who recorded no signs of injury. Such is intelligible, even if there was an indentation of the sort that she describes. Since there was no subsisting personal injury, a claim for damages e.g. for negligent application of the handcuffs could not succeed at common law. In an appropriate case, there might be conceptually be claim pursuant to the Human Rights Act for breach of her rights under Article 3 even though it left no permanent physical injury, so long as this qualified as treatment within Article 3. It is not clear to me whether the Claimant advances the use of excessive force in applying handcuffs to her wrists as a breach of Article 3, but out of caution I will assume that she does.

Article 3 provides protection against prescribed forms of treatment. In the European Courts, and in the courts of this country, these have been interpreted as deliberate acts of treatment that had inhuman or degrading consequences (R (Limbuela) –v- SSHD [2006] 1AC 396. I remind myself that in respect of a particular individual, or class of individuals, inaction may in appropriate circumstances be considered to be a deliberate action.

The threshold for "inhuman or degrading treatment" has been considered on a number of occasions. It is well established that to fall within the scope of Article 3, ill treatment must attain a minimum level of severity, and that "the assessment of this minimum is, in the nature of things relative; it depends on all the circumstances of the case, such as the duration of the treatment, its physical or mental effects and in some cases the sex, age and state of health of the victim …" (Ireland –v- UK [1979-80] 2 EHRR 25 at paragraph 162).

However it is clear from the European and domestic authorities that the threshold for this minimum level of severity remains high. In Limbuela, Lord Bingham stated,

"as in all Article 3 cases, the treatment, to be proscribed, must achieve a minimum standard of severity, and I would accept that in a context such as this, not involving the deliberate infliction of pain or suffering, the threshold is a high one".

In Ireland –v- UK (see above) it was referred to as

"intense physical or mental suffering" and "the techniques were also degrading since they were such as to arouse in their victims feelings of fear, anguish and inferiority capable of humiliating and debasing them and possibly breaking their physical or moral resistance".

In R (Daniel Roque Hall) –v- UCL Hostels NHS Foundation Trust [2013] EWHC 198, it was stated,

"absent physical injury, it requires such severity that undermines or has a significant adverse impact on the personality or will of the individual, or some impact akin to that".

I note that in Beganovic –v- Croatia (Application 46423/06, 25.06.09), "treatment has been held by the Court to be "inhuman" because, inter alia, it was premeditated, was applied for hours at a stretch, and cause either actual bodily injury or intense physical and mental suffering".

In the case of R. (Daniel Roque Hall) the Divisional Court stated,

"…. It is important to mark that it is not the role of this Court to assess whether the care provided to the Claimant at the prison fell short of the optimal or even a reasonable standard; our role is merely to determine whether we are satisfied that the treatment he received breached his human rights." [The Court reminded itself that Article 3] "was drafted in the shadow of the atrocities of the Second World War" (paragraph 26).

The Divisional Court also noted that it was significant that there were other mechanisms whereby complaints could be addressed:

"That of course does not mean that complaints that fall short of this high threshold must go unconsidered; there are ways in which they can be addressed including…… by way of complaint to the Prisons Ombudsman" (paragraph 26).

I am not in a position reliably to resolve a conflict between what Inspector Jackson was told by PS Pilling, the custody sergeant and by PS Thorpe in whose charge Miss Durrant was.

PS Pilling told Inspector Jackson that she recalled being asked for permission for Miss Durrant to go to the toilet but that she was busy with other matters and replied that she would have to wait, yet only recalled one such request. PS Thorpe said that he made two calls, the first being declined on the basis that PS Pilling did not know what Miss Durrant had been arrested for and so to allow her to use the toilet might mean losing evidence, and that when he received a second call stressing the urgency, the custody sergeant agreed but then had to find a female officer to accompany Miss Durrant, this being done, but he arriving too late.

On such evidence as I have, the probability as to what happened may lie with Sergeant Pilling's acount. If she had raised whether evidence might be lost, then PS Thorpe would have had only to tell Sergeant Pilling that the Claimant had been arrested for alleged assault (not for example possession of drugs) where loss of evidence would not be in question. Further the Claimant told me that the request had been made four times, and I have no reason to doubt her evidence. The appearance of the three police officers in the custody cell, on the CCTV footage immediately before the Claimant moves away in order to urinate, is scarcely one of animation or apparent urgent enquiry. The criticism against the police officers for failure to respond to her requests is amply justified.

Miss Durrant does not suggest loutish comment goading or laughter. Immediately after the event, police officers including a female police officer are seen to arrive at the door of the holding cell. I find it unlikely that this failure was motivated by some relish or intention that she should be reduced to public urination or humiliation; alternatively there is no sufficient evidence to infer such a motivation.

In assessing whether there was breach of her rights under Article 3, and strongly as I regard the failure of the police to respond to her requests, I am unable to find that this was an episode over time of humiliating and debasing the Claimant, or breaking her physical or moral resistance, or applied for hours at a stretch so as to cause actual bodily injury or intense physical and mental suffering, so as to fall within Article 3. In my judgment the claim under Article 3 is not made out.

As to the handcuffs being applied too tightly, (if they were), or the transportation of the Claimant in a cage of the police van or with handcuffs to the rear, such transportation is commonplace in respect of certain detainees.

For completeness, I note that by section 3(1) of the Criminal Law Act 1967 a person may use such force as is reasonable in all the circumstances either to prevent a crime or to assist in the lawful arrest of offenders; and there is a specific provision in section 117 PACE 1984 which provides for the use of reasonable force in executing any power under that Act (which includes arrest): "Where any provision of this Act – (a) confers a power on a constable….. the officer may use reasonable force if necessary in the exercise of the power; (section 117(b) not arising in this case). This underlines that the use of handcuffs is permitted, so long as the force used is reasonable, subject of course to any independent complaint of unlawful discrimination.

The claim that there was unlawful discrimination in her treatment is a different one from the Article 3 claim. In my judgment the circumstances alleged by the Claimant cannot satisfy the requirements for claim under Article 3 as required under the authorities to which I refer above.

For completeness, I record that the Defendant raised a limitation defence on the basis that a claim under the Human Rights Act must be instituted within 12 months of the matters complained of. That was in skeleton argument. The Defendant did so under misapprehension that the claim had been instituted only in October 2010 based upon a manuscript addition upon the Claim Form. A letter from a member of court staff makes clear that this was in error and that the claim form was issued on 11 June 2010. Accordingly the claim was made in time. Once this factual material emerged, Mr Payne immediately, and properly, withdrew this ground of asserted Defence.

For completeness again, the Claimant rejected the apology offered by the Defendant in respect of the failure to accord her toilet facilities and appealed to the IPCC; but her appeal was rejected by the IPCC on 26.11.2009. In other words, the IPCC did not intervene in respect of the finding that the failure was inadvertent. I have nonetheless made my own conclusions on this issue.

Misfeasance in public office. The claim is in entirely general terms. It does not raise any facts or allegation which would not be addressed by the other torts pleaded. The tort of misfeasance requires actionable damage and if the Claimant is not able to establish and alternative head of claim, and damage caused thereby, it would not be possible to identify damage under the head of misfeasance in public office.

In any event, there are strong observations against a claim for misfeasance in public office being available as an alternative to a malicious prosecution claim: McDonagh –v- Commission of Police for the Metropolis December 28 1989, and such is doubted in the magisterial text book Clayton and Tomlinson "Civil Actions Against the Police" 2^nd Edition 11-89 to 11-032.

Unlawful assault. This would be made out if the arrest were unlawful in that she was forcibly detained. Here the burden of proof of lawful arrest is on the police. I adopt paragraphs 21 and 22 above. Miss Durrant also complains that there was excessive use of force in the application of the handcuffs, either directly or because the handcuffs were applied over her bangle and the point of the bangle left the indentation described by her (see above). By morning the health professional found no sign of injury. The custody record is not to be taken as determinative but it is a contemporary record that the custody sergeant found no "injury". If arrest was lawful, the burden of proof of injury by excessive force is upon the Claimant. If what she was being shown was what Miss Durrant herself describes as a penny sized indentation which had disappeared by the time the nurse looked at it, then in the light of the legislative provisions to which I refer at paragraph 110 above and upon the evidence generally I do not find the claim of unlawful assault proved.

Defamation. The claim in defamation did not feature largely, if at all, in the submissions made by Miss Durrant.

The claim as pleaded falls well short of the particulars which are required to be strictly pleaded in a claim of defamation under the Civil Procedure Rules Practice Direction 53 (2.1 to 2.4). Perhaps because Miss Durrant was a litigant in person, and in any event consistent with his proper approach to the case such as I have set out at paragraph 34 above, Mr Payne did not seek that the claim be struck out on that ground.

The claim appears to rest on (i) the observation in the report of Chief Inspector Pascal that [Miss Durrant and Lisa Putterill] 'are not the innocents that they wish to portray' and (ii) the reported remark by PC Underhill that "you are guilty of assaulting them and they were just doing their job".

Miss Durrant has taken the former to be a statement that she was guilty of the offences of which she had been acquitted. I have recorded above my view that it is plainly not what Chief Inspector Pascal was saying. Further any observation was made on an occasion of qualified privilege. In the light of my findings above any claim to defeat that privilege on the basis of malice on his part would be bound to fail.

As to the latter, the short answer is that it was a remark, even if accurately recorded, which was made to Miss Durrant herself and there is no evidence of publication to another person. This is before any question of whether qualified privilege attached and whether in order to defeat that privilege the Claimant could show malice on the part of PC Underhill, with no evidence of malice other than the making of the remark itself, which would be insufficient.

The claim in defamation has not been at the centre of the case. In any event I do not find it proved.

Racial discrimination on the occasion of the arrest. I am more troubled by the circumstances of the arrest of the Claimant immediately after the incident at the taxi rank. The report to the police had not been of attack or assault by a single person, but of attack by 2 females, and thereafter 2 males. Once the Claimant in the course of trial put in the witness statement of PS Thorpe, Mr Payne placed reliance on his account that PC Brett tried to place the Claimant in handcuffs in the front stack position, but the Claimant resisted and he PS Thorpe assisted in placing her in the rear stack position for handcuffing. However this statement is unequivocal that "on speaking to the taxi marshalls we were directed to a group of 2 females and 1 male who I know now to be the Defendants Durrant Putterill and Alan" (emphasis supplied) .

Given that the Claimant may have fitted the description of a female described as black or mixed race, (although she would fiercely object to being described as black), it is no source of surprise that the police should approach her, or even arrest her, even allowing for the alacrity with which PC Brett is seen to make straight for her, since the taxi marshal was pointing towards her, and/or towards her and Miss Putterill and Mr Alan.

It is another matter that at this stage they should arrest only her, and (as can be seen on the CCTV footage) that they should positively send Miss Putterill and Mr Allen away. In addition, if the police officers were attending in response to the report logged, the report was not report of assault on a taxi marshal or taxi marshals by a single individual.

Miss Putterill and Mr Allen can be seen to approach close to the police officers and the Claimant, as seen on the CCTV footage. They appear to be engaged with the police officers. The evidence of Lisa Putterill is that that they were trying to convey that the Claimant and Miss Putterill had been assaulted by the taxi marshals. The evidence of PS Thorpe (in the witness statement introduced by the Claimant) is that the police officers had been directed to this group of 3 by the taxi marshals.

The police officers at this stage made no arrest or attempted arrest of Miss Putterill and Mr Allen. This is notwithstanding the possibility, or prospect, that Miss Putterill and Mr Allen had been involved in the incident, (i) by their own protestations to the police officers surrounding the Claimant, (ii) the logged report to the police of 2 females attacking the taxi marshals and then 2 males also, and/or (iii) the direction to "the group" of all three by the taxi marshals. On the contrary the police officers are seen to be physically (and very obviously vigorously) pushing Miss Putterill away and encouraging her to leave. It is only a couple of minutes later that a police officer is seen to follow in the direction of Miss Putterill and Mr Alan, it would seem at the instigation of one of the taxi marshals.

Immediately after this, the Claimant was placed in rear stacked handcuffs. This is explicable if she was resisting arrest.

The witness statement of PS Thorpe (introduced in evidence by the Claimant) suggests that she did resist arrest. Mr Payne contends in brief supplemental written submissions that this is shown in the CCTV footage, in that any initial placement of handcuffs is on the left wrist/arm of the Claimant in front of her, followed only 15 or 20 seconds later by PS Thorpe applying the handcuffs behind her to her right wrist. I do not consider that the conclusion contended for can reliably be derived from the CCTV footage alone.

The Claimant says that she was not resisting arrest. I remind myself that she is, to say the least, an assertive personality, and that she agreed she was angry at the actions of the taxi marshals. She was intent on telling the police that she had been the victim of assault, not the perpetrator of assault. Thus there may have been inclination to resist arrest. At this point, I have to make an assessment of the Claimant as a witness. She may be highly assertive in personality, but at a number of points during her oral evidence she was willing to make concessions as to what may have occurred at the scene, in a straightforward manner. She agreed that she was angry at the time with the taxi marshals. She accepted that her present recollection may have been influenced by seeing the CCTV footage. She was willing to accept that there may have been some details in her initial account which were not accurate (although "I think if you compare my account with other people's account you'll find mine is the most accurate").

Further illustrations could be given. Perhaps two will suffice. She agreed that she did take offence at being asked to pay for the taxi fare up front. She agreed that she might have used abusive words towards the taxi marshal, ("I may have called him a fat arse, I can't recall").

I am conscious that I have not heard evidence from PS Thorpe, or other police officers, and that I have not done so by reason of procedural default in offering their witness statements for exchange. It is of some interest that the Claimant readily accepted that it was reasonable to handcuff Mr Allen in the rear stack position, because he is shown on the CCTV footage to have resisted arrest. I find the evidence of the Claimant persuasive that she did not resist arrest at the scene. I conclude on the balance of probabilities that she did not resist arrest at the scene.

In contrast, I do not consider it particularly striking that she was placed in the cage of the police van, if she was the first to be arrested; and space is limited. Moreover she may have been the most obvious to be arrested, in the light of the description of a female black or of mixed race as having been one of the 2 females attacking the marshals. But it is troubling, in the light if what I have set out above, that Lisa Putterill and Mr Allen were sent away at the very time that the police were forcibly detaining the Claimant.

In reaching my conclusions I have considered the evidence of Lisa Putterill also. The placing of handcuffs in the rear stack position is not a minimal matter. The Claimant describes that on the journey in the police van, by the motion of the van she was being thrown about, but not by reason of the handcuffs behind her, able to keep a secure position on the bench. Lisa Putterill, in her witness statement, and in her oral evidence, stated 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 very much, replying several times "that's my friend being thrown around".

Understandably, not every detail of evidence was challenged by Mr Payne during the course of the evidence of the Claimant and Miss Putterill, and I do not take the lack of detail to challenge to be an acceptance on the part of the Defendant that the police officers acted as alleged on the journey.

I further bear in mind that Lisa Putterill is a witness whose interviews did not reveal the account, alternatively the full account, which she now offers as to the circumstances of the incident at the taxi rank. I consider that in her demeanour during oral evidence there was some evidence of consciously wishing to support the claim of her friend the Claimant. There are parts of her witness statement identical in wording to that of the Claimant, where it is clear that the Claimant supplied the wording (for what Miss Putterill described as her jiggle jaggle). Nonetheless, these parts of her witness statement are independent and I am satisfied that this aspect of her evidence is an allegation of fact made independently by Lisa Putterill. I regret that it rings true.

It does not, of course, follow that such an attitude, if proved, was based consciously or unconsciously upon the mixed race of the Claimant. 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 evidence of the Claimant was that she had been kept in the caged area of the van on arrival at the police station with her arms handcuffed behind her back "for almost an hour" in the secure police compound (statement paragraph 21). This may be how she recalls it but it is inconsistent with the contemporaneous custody record and with the CCTV footage: the true period is far less. Given this and the oversensitivity I describe early I this judgment, I approach with caution the account in her witness statement that 'the police officers stood outside the open van doors, looking on at me in the cage like I was an animal at the zoo', a matter not reflected in her oral evidence. Further if this is an account of them doing so for a prolonged period, on the balance of probabilities I do not accept it, since she was so badly mistaken about the period of time which elapsed before she was brought in and processed.

I do not find it implausible that detainees are not necessarily processed according to the fine detail of who is arrested first at the scene. I bear in mind the CCTV footage to which my attention was drawn, in which a police officer confides to the custody sergeant that she feels 'quite sorry' for [Lisa Putterill] but that the other one [the Claimant] 'is a nightmare'. Miss Durrant relies upon it as evidence that as a person of mixed race she was treated very differently from Lisa Putterill. However the respective personalities of Miss Durrant and Miss Putterill are, as I observe above, very different and I do not find this remark individually significant of racial bias or discrimination.

In some cases adverse inference may be drawn from the absence or silence of a witness. The Claimant drew my attention to Wisniewski –v- Central Manchester Health Authority [1998] PIQR P324 CA, Brooke LJ:

"From this line of authority I derive the following principles in the context of the present case. (1) In certain circumstances a court may be entitled to draw adverse inferences from the absence or silence of a witness who might be expected to have material evidence to give on an issue in an action. (2) If a court is willing to draw such inferences they may go to strengthen the evidence adduced on that issue by the other party or to weaken the evidence if any adduced by the party who might reasonably have been expected to call the witness. (3) There must however have been some evidence, however weak, adduced by the former on the matter in question before the court is entitled to draw the desired inference: in other words there must be a case to answer on that issue. (4) If the reason for the witness's absence or silence satisfies the court then no such adverse inference may be drawn. If, on the other hand, there is some credible explanation given, even if it is not wholly satisfactory, the potentially detrimental effect of his/her absence or silence may be reduced or nullified".

The present case is unique in my experience, in that it is known to the court that there are witness statements, and that the Defendant would wish those statements to be in evidence and oral evidence given by their authors. There is no suggestion that the police officers who gave those witness statements were unwilling to attend to give evidence.

In my judgment it is therefore not appropriate to draw adverse inference against the individual police officers, or the Defendant, from the simple absence of statements or live evidence from those officers.

Mr Payne goes further and argues that the allegations made by the Claimant are serious and sensitive and given that the Defendant is not at liberty to call evidence the court should not make, or should hesitate to make, findings in favour of the Claimant where there is the possibility of alternative explanation. He contends that if the court makes findings adverse to the police, or to individual police officers, there will or may be serious consequence to them. In my judgment I am required to arrive at findings upon the evidence which I have, not the evidence which I might have had but do not have because of procedural default on the part of the Defendant. If the court makes findings adverse to the police, doubtless any individual police officer will be able to protest that he or she has been deprived of the opportunity to contest the allegation insofar as it reflects personally on himself or herself. The Court of Appeal made the ruling that the Defendant was not to be at liberty to call evidence and must have been fully aware of the inevitable consequence of that.

On the intrinsic case, as to whether difference in treatment on the occasion of arrest can amount to discrimination on racial grounds, Mr Payne argues that "in considering whether the act of arresting the Claimant amounted to unlawful discrimination on the grounds of race, the focus of the Court's inquiry and/or findings of fact must be on the arresting officer – in this case, PC Brett. This is consistent with the CCTV footage and the Claimant's pleaded case (which complains of PC Brett actions in racing towards her to arrest the Claimant). On the information available to PC Brett one of the women who had allegedly assaulted the taxi marshals was black or mixed race (the ethnicity of the other women[sic] was not known at this stage). In light of this information her decision to approach and arrest the Claimant was entirely reasonable. Indeed there is no doubt that the Claimant was one of the women referred to by the CCTV operator. The fact that PC Brett focussed on arresting the Claimant and did not attempt to make multiple arrests at the same time is both reasonable and fully consistent with standard procedure. The practical difficulties of a single officer trying to make multiple arrests are obvious". PC Brett, as a police constable, had no operational responsibility for any failure to act of the other officers".

It is then said that the decision of the other officers to go and assist PC Brett, a petite female officer, to complete the arrest was plainly reasonable; and that each person in turn was arrested singly.

I respectfully do not consider this analysis does justice to the case brought against the Defendant. If the claim had been exclusively based on the actions of PC Brett and PC Brett alone, or if I considered that the Defendant were prejudiced by having to meet a different case than that pleaded, the matter might lie differently.

The claim is unfocussed, as I have recorded above, but I do not consider that the Defendant is so prejudiced. Indeed in the peculiar circumstances of this case it is difficult to see how the Defendant could be prejudiced, where its witness evidence is excluded by reason of its own procedural default, and where the court has at least sight of the CCTV footage. The case in racial discrimination was not, as I read it, solely that the Claimant was arrested, but that the Claimant was arrested and the others were in the first instance not. Illustratively, the complaint was not simply that she was put in the cage at the back of the van, but that when Lisa Putterill was arrested by police officers, she was not.

Nor did I understand the case for the Claimant to be that a single, petite female officer (if that is a correct description of her), is being accused of failing singlehandedly to seek to make multiple arrests. It is a substantial number of officers who came out of the police van. Of these, I cite above and remind myself of the evidence by written statement of PS Thorne: "on speaking to the taxi marshalls we were directed to a group of 2 females and 1 male who I know now to be the Defendants Durrant Putterill and Allen". Yet the other two were not merely not arrested by the police officers present but were directed away by police officers, physically pushing Lisa Putterill away, and leaving the two to walk away. It is only the visible intervention of a taxi marshal which persuades one police officer, a little while after, to follow in the direction where Lisa Putterill and Mr Allen had walked away.

I have considered all the evidence with care. I do not consider that any difference in treatment of the Claimant, compared with Lisa Putterill (or Mr Allen) was consciously motivated by racial discrimination. There is a notable absence of any suggestion of racist language, or overt racist approach, on the part of police officers. I have found it unsurprising that the first person arrested was placed in the rear cage of the van, or that those arrested were processed in the sequence that they were. As to the delay in affording toilet facilities I find likewise 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 Miss Durrant was of mixed race.

Discrimination on grounds of race may however be present, albeit it is not conscious or: there can be unconscious racial stereotyping. I do not discern why the other two, pointed out to the police as being responsible, were not also arrested and were permitted and encouraged to leave the scene. It is notable that there was rear handcuffing, of a woman, although on my findings she had not been resisting arrest. I find that in the omission to take any steps to detain, or arrest, the other two persons pointed out to them, and in the rear handcuffing of Miss Durrant, the police officers concerned must have proceeded on the basis of racial stereotype. I do not find that in arresting Miss Durrant herself they did so.

As I have recorded above, I have reached a number of conclusions (including lawfulness of arrest and other instances of alleged discrimination) subject to revisiting them in the light of any finding I might make elsewhere of discrimination on grounds of race. A judge must always stand back and consider all of the evidence and whether any provisional finding needs to be adjusted or changed in the light of other findings. Having done so I adhere to the above findings in each case.

Sensibly, on conclusion of evidence at trial the submissions were upon liability, rather than make what might have been quite wide ranging submissions on quantum, (namely how much should be awarded n respect of any given claim). Since I have found the claim proved only in respect of treatment on the evening of arrest, and as to some aspects of that only, and since the above findings do not support an award of aggravated or exemplary damages, damages will be modest.

The full written judgment was circulated to the parties in order for them to propose any corrections for typographical or obvious error. No suggested correction has been received from either party. In order to minimise costs, I therefore hand down judgment in writing in the absence of the parties, reserving actual entry of judgment as to damages or costs so that the parties may make any representations as to those or other consequential matters. At present I consider that those representations, including any citation of comparable awards, might be achieved on paper but I will consider any representations from either side as to whether there needs to be a further oral hearing in order to deal with outstanding matters.

Handed down 29 August 2014

His Honour Judge Seys Llewellyn, QC sitting as an additional judge of the High Court, in respect of matters other than the claim under the Race Relations Act 1976, and as to that claim in the County Court sitting at London.

SUPPLEMENTAL NOTE

The court has received in the last 48 hours a number of e-mails from Miss Durrant. She complains that judgment was not handed down within 48 hours of being sent to the parties and she complains that this has been done at the behest of the Defendant or its representatives.

The full written judgment was circulated to both parties on 13 August 2014, for correction of typographical or obvious error. The case was listed for handing down of judgment on 15 August 2014 at 2pm. The court received reply from Mr Payne counsel for the Defendant but no reply was received from Miss Durrant.

Counsel for the Defendant requested by e-mail that handing down of judgment should be delayed until after 8 September 2014, in order that his solicitors should have the opportunity to consider any such corrections.

On 15 August 2014 on that date I chose to defer handing down judgment, because no reply had been received from Ms Durrant. I was conscious that she was a litigant in person and others could not deal with this matter for her if she was away. Until handed down, the judgment remains confidential to the parties and their representatives, as here. The Practice Direction allows only a short time to the parties to consider and make any suggested corrections but that may be varied by the judge. I did so vary the period, in this case, principally with Ms Durrant's interests in mind, directing that the handing down of judgment be deferred for 7 days. I declined the request of the Defendant for a longer extension to 8 September 2014.

After 15 August 2014 I was on annual leave. A full written judgment can be handed down, in the absence of the parties, and if necessary on behalf of the judge by another judge. Judgment has not been handed down by another judge. I returned from leave yesterday 28 August 2014. Since I am satisfied from her e-mails that Ms Durrant has received the written judgment, I hand judgment down today.

29 August 2014 His Honour Judge Seys Llewellyn, QC

Since the handing down of judgment, Miss Durrant has pointed out typographical error in that "30 June" has been transposed for "13 June" 2009. She is correct and that is so, up to paragraph 47, the date being thereafter correctly described in the judgment as 13 June 2009. I am grateful and I have accordingly corrected the judgment.

3 September 2014

His Honour Judge Seys Llewellyn, QC

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You are here: BAILII >> Databases >> England and Wales High Court (Queen's Bench Division) Decisions >> Durrant v Chief Constable of Avon and Somerset Constabulary (Rev 1) [2014] EWCA 2922 (QB) (29 August 2014) URL: http://www.bailii.org/ew/cases/EWHC/QB/2014/2922.html Cite as: [2014] EWCA 2922 (QB)