Tuesday Law Report: Police did not `knowingly aid' discrimination

1 December 1999 Smith and another v Cheltenham Borough Council and others Court of Appeal (Lord Woolf Master of the Rolls, Lord Justice Judge and Lady Justice Hale) 10 December 1999

LIABILITY UNDER section 33(1) of the Race Relations Act 1976 was not established unless the secondary party knew that the party from whom his liability was alleged to derive was treating, or was about to treat, or was contemplating treating someone "less favourably" on racial grounds, and with that knowledge, or knowing that such treatment would be the likely result of doing so, he provided him with aid.

The Court of Appeal dismissed the claimants' appeal against a decision that police officers had not "knowingly aided" Cheltenham Borough Council in discriminating against them on racial grounds.

Deborah Smith was a Romany gypsy who was due to marry in August 1997. Her mother applied to Cheltenham Borough Council to hire a historic listed building for the wedding reception, suggesting that the numbers attending would be about 150. She was offered the use of the rooms on standard terms and conditions.

The local police, who had had a number of problems with gypsies, received information in June 1997 about two gypsy weddings, to the effect that in relation to one wedding between 1,000 and 1,500 guests were expected, and, in relation to that of Miss Smith, that there was ill-feeling between some of the guests, and that there was likely to be disorder.

The police informed the manager of the premises that the police had received information that Miss Smith's wedding was a gypsy wedding, that up to 1,500 guests might attend, that the Smith family was "well known" to the police, and that in the past there had been disturbances which had involved them. A police officer subsequently attended a meeting with representatives of the council, at which he reiterated the earlier information, and made it clear that, if the wedding were to proceed, the police would need to take appropriate precautions against any public disorder.

The council then sought to impose a number of additional conditions on the existing arrangements, which caused distress to both Miss Smith and her mother. They commenced proceedings against the council, claiming breach of contract, and alleging that they had committed unconscious discriminatory acts acts made unlawful by sections 20 and 21 of the Race Relations Act 1976. They also claimed damages against two police officers under section 33(1) of the Act, which provided:

A person who knowingly aids another person to do an act made unlawful by the Act shall be treated for the purposes of this Act as himself doing an unlawful act of the same description.

The judge found that the council was in breach of contract and that the claimants were entitled to treat the contract as repudiated, and further that the council had been in breach of both sections 20 and 21 of the Act. He held, however, that the claimants had no remedy against the police officers, because they had not been parties to the decision taken by the council. The claimants appealed.

Jane McNeill (Brinder Bal, Commission for Racial Equality) for the claimants; David Fletcher (Cheltenham Borough Council) for the council.

Lord Justice Judge said that liability under section 33(1) of the 1976 Act was not established unless the secondary party knew that the party from whom his liability was alleged to derive was treating, or was about to treat, or was contemplating treating someone "less favourably" on racial grounds, and with that knowledge, or knowing that such treatment would be the likely result of doing so, he provided him with aid.

In the present case, the conclusion that the police officers had contributed to the decision made by the council to break their contractual arrangements with the claimants was inescapable, but there was insufficient evidence, and no finding, that the police officers had known that the claimants would or even might be treated "less favourably" than anyone else when the council faced the public order considerations to which its attention had been drawn, and accordingly derivative liability had not been established.