1. The Act received Royal assent on 30 November 2000 and came into effect in April 2001. Cited henceforth as RR(A)A 2000. For a general overview, see C O'cinneide ‘The Race Relations (Amendment) Act 2000’ [2001] PL 220; and H Hill The Race Relufions (Amendment) Act 2000 (London: Blackstone, 2001).

2. New s 19B of the Race Relations Act 1976 (henceforth ‘RRA 1976’), inserted by virtue of RR(A)A 2000, s1.

3. New s 71 of RRA 1976, amended by virtue of RR (A) A 2000, s 2.

4. In the case of public investigations or prosecutions, redress is limited to damages or a declaration unless the court is convinced that the redress demanded would not prejudice a criminal investigation, a decision to prosecute or criminal proceedings themselves: new s 57(4A) of RRA 1976, inserted by RR(A)A 2000, s 5.

5. W Macpherson (Chair) The Inquiry into the Matters Arising from the Death of Stephen Lawrence (Cm 4262-I, 1999) at p 317. (Henceforth ‘the Macpherson Report’). For a general account of the case, see Cathcart, B The Case of stephen Lawrence (London: Penguin, 2000)Google Scholar.

6. For an historical account, see Hay, D and Snyder, F Policing and Prosecution in Britain 1750–1850 (Oxford: Clarendon Press, 1989)Google Scholar. For a principled account of the problems of victim participation in obscuring the collective and public interest at stake in criminal process, see Ashworth, A ‘Victims' Rights, Defendants Rights and Criminal Procedure’ in Crawford, A and Goodey, J (eds) Integrating a Victim Perspective Within Criminal Justice: International Debates (Dartmouth: Ashgate, 2000)Google Scholar. For a contrast with Continental countries, see Brienen, M and Hoegen, E Victims of Crime in 22 European Justice Systems (Netherlands: Wolf Legal, 2000)Google Scholar.

7. For an overview of the English situation, see H Fenwick ‘Procedural ‘Rights’ of Victims of Crime: Public or Private Ordering of the Criminal Justice Process’ (1997) 60(3) MLR 317; Spencer, J R ‘Improving the Position of the Victim in English Criminal Procedure’ (1997) 31 Israel LR 286 CrossRefGoogle Scholar.

8. The case law is discussed below.

9. MacCormick, N and Garland, D ‘Sovereign States and Vengeful Victims: The Problem of the Right to Punish’ in Ashworth, A and Wasik, M (eds) Fundamentals of Sentencing Theory (Oxford: Clarendon Press, 1998) p 12.Google Scholar

10. For other arguments seeing the victim as source of reordering of criminal process, see Zedner, L ‘Victims’ in Maguire, M, Morgan, R and Reiner, R et al, Oxford Handbook of Criminology (Oxford: Oxford University Press, 3rd edn, 2002)Google Scholar; and Fenwick, n 7 above.

11. McColgan, A Discrimination Law: Text, cases and materials (Oxford Hart, 2000) p 253.Google Scholar

12. Tower Boot Co Lid v Jones [1997] IRLR 168 at 171, per Waite LJ.

13. N Hopkins and V Dodd ‘Lawrence family accepts £320,000 payout from Met’Guardian, 20 December 2000.

14. Macpherson Report, n 5 above, chs 13–16, butesppp 102, 111.

15. Some officers at the scene assumed for no obvious reason that there had been a fight rather than an unprovoked assault. See the exchange before the Inquiry between M Mansfield QC and Inspector Groves, who was the senior officer in charge of the scene in the first hour: Norton-Taylor, R (ed) The Colour of Justice (London: Oberon, IW), pp 72–74 Google Scholar. Brooks was, according to Macpherson, ‘doubted and wrongly assessed’ and became a ‘victim of racist Stereotyping’ of the ‘surly, nonco-operative’ Afrd3aribbean: Macpherson Report, n 5 above, pp 19, 174.

16. On the failure of the senior investigating officer to indicate on the crime report that this was a racist incident and the lack of urgency given to lines of investigation relating to the racist nature of the attack, see the Macpherson Report, n 5 above, p 101. On the refusal of a substantial number of officers of junior rank to accept that the murder was simply and solely ‘racially motivated’, see the Macpherson Report, n 5 above, pp 23, 145–146, 174; and Norton-Taylor, n 15 above, pp 78, 90–93.

17. Macpherson Report, n 5 above, pp 127, 180–182, 302.

18. For the impact of initial stereotyping on the cases of Michael Menson and Mohammed Altaf, see Rose, D In the Name of the Law (London: Vintage, 1996) pp 70–71 Google Scholar; D Rose ‘Police failed to act as race hate victim died in hospital’Obsenter, 30 March 1997; and A Gentleman ‘No justice, no apologies’Guardian, 17 September 1998. For more recent controversies, see R Verkaik ‘Met faces fresh criticism over black and Asian victims’ cases’Independent, 27 April 2002; and T Judd ‘Police ‘lost’ Telford hanging evidence’Independent, 9 May 2002. For broader evidence, see Human Rights Watch Racist Violence in the United Kingdom (New York: Human Rights Watch, 1997) pp 65–72.

19. See R Sibbitt The perpetrators of racial harassment and racial violence Home Office Research Study 176 (London: Home Office, 1997) pp 25–27, 95–96; and Bowling, B Victimisation, Policing and Social Context (Oxford: Clarendon Press, 1998) pp 247–257 Google Scholar. In most cases identified by the CPS during 1997–98 as having such an element, the police officers initially dealing had failed to so categorise the incident: C Dyer ‘Police accused of failing to acknowledge racial crimes’Guardian, 20 October 1998.

20. Her Majesty's Inspectorate of Constabulary (HMIC) Winning the Race: Embracing Diversity (2000) para 2.21, p 19, available at http://www.homeoffice.gov.uk/hmic/pubs.htm.

21. Fitzgerald, M and Hale, C Ethnic Minorities, Victimisation and Racial Harassment Research Findings 39 (London: Home Office Research and Statistics Directorate, 1996)Google Scholar; Bucke, T Ethnicity and Contacts with the Police: Latest Findings frorn the British Crime Survey, Research Findings 59 (London: Home Office Research and Statistics Directorate, 1997)Google Scholar; Bowling, n 19 above, pp 235–238; Sims, L and Myill, A Policing and the Public: Findings from the 2000 British Crime Survey, Research Findings 136 (London: Home Office Research and Statistics Directorate, 2001)Google Scholar; Mirrlees-Black, C Confidence in the Criminal Justice System: Findings from the 2000 British Crime Survey, Research Findings 137 (London: Home Office Research and Statistics Directorate, 2001)Google Scholar.

22. Human Rights Watch, n 18 above.

23. Para 1.4, CRE Submission to Part 2 of the Lawrence Inquiry, http://www.cre.gov.uk/publs/dl_lawrl.html.

24. Many of the faults in the Lawrence investigation are not obviously linked to race: cf poor co-ordination of initial searches, poor misuse of the HOLMES computer database system, the ill-thought-through decision to defer arrest, the poor quality of the surveillance operation, the unsystematic approach to eliminating suspects (see the Macpherson Report and Cathcart, n 5 above, passim).

25. Macpherson Report, n 5 above, p 315.

26. Her Majesty's Inspectorate of Constabulary (HMIC) Winning the Race: Policing Plural Communities Thematic Inspection Report on Community and Race Relations 1996/7 (1997) para 2.68.

27. Press Association ‘Home Office unveils new’ independent ‘police complaints system’Guardian, 19 December 2000; and Home Office Complaints Against the Police: Framework for a New System (2000) available ar http://www.homeoffice.gov.uk/pcrg/policec.htm. Now see Police Reform Bill 2002, Pt 2.

28. For examples see R v Tower Bridge Metropolitan Stipendiary Magistrate, ex p Chaudhry [1994] 1 All ER 44 or Rv Bow Street Stipendiary Mag istrate, ex p South Coast Shipping Ltd [1993] 1 All ER 219.

29. Once the case has been committed for trial, the private prosecutor can compel the police to produce all relevant documents in their possesion: Criminal Rocedure (Attendance of Witnesses) Act 1%5. But neither police nor CPS need disclose before commiaal and the police muld oppose an application on grounds of public interest immunity. Unusually, in the Lawrence case, when the family prosecuted several of the leading suspects, police and prosecution, desiring not to be Seen to compound the mischief of the earlier flawed investigation. gave full co-operation -including access to all police and prosecution files. For details, see Cathcatt, n 5 above, p 226ff.

30. Law Commission Report 255 Consents to Prosecution (London: Stationery Office, 1998) para 5.8.

31. See Law Commission, n 30 above, paras 2.14–2.21, for a review of procedural constraints on private prosecutions.

32. Law Commission, n 30 above, paras 5.10–5.23.

33. V Dodd ‘Faltering corruption inquiry sets back hopes of new charges’Guardian, 30 April 2002.

34. In R v Dythum [1979] QB 722 the court indicated that an officer's wilful refusal to intervene to stop an assault would constitute misfeasance.

35. Three Rivers District Council v Bank of England [2000] 3 All ER 1 at 8, per Lord Steyn.

36. In Thomas andors v Secretary of State for the Home OfJice 2000 WL 1274102, QBD Buckley J stated that racial discrimination or abuse by prison officers or deliberate failure to stop racial discrimination or abuse by other prisoners would constitute targeted misfeasance: paras 21–25.

37. Three Rivers District Council v Bank of England [2000] 3 All ER 1 at 8.

38. This dictum of Clarke J at first instance in Three Rivers [19961 3 All ER 558 at 581 was cited approvingly by the Court of Appeal and Lord Steyn: Lord Hobhouse effectively makes the same point in the House of Lords at 43h. The test was applied in L and anor v Reading Borough Council and anor (2001)1 WLR1575 in a case alleging deliberate misrepresentation of evidence by a police officer and a social worker. Other recent cases of misfeasance have been based on allegations of police fabrication of evidence and deliberate withholding of disclosable evidence (Darker v Chief Constable of West Midlandr Police [2001] 1 AC 435 and Thorn and anor v Chief Constable of Cleveland [2001] EWCA Civ 1552, 2001 WL 1251762.

39. [2000] 3 All ER 1. This was variously defined as ‘reckless indifference’, ‘wilful disregard’ or foresight: contrast Lord Steyn at 9–12 with Lord Hutton at 42d and Lord Hobhouse at 44–45.

40. For example, Caldwell recklessness (which does not require that the relevant consequence be foreseen by the actor).

41. Per Lord Steyn at 10a.

42. In Thomas v Secretary of State for Home mce, 2000 WL 1274102, paras 60–61, QBD it was indicated that a wrongful failure by a prison officer to intervene to prevent racial abuse by another inmate would not of itself constitute misfeasance unless there was an additional element of bad faith.

43. The Court of Appeal in Brooks v Commissioner of Police for the Metropolis concluded that allegations of misfeasance in relation to the insensitive police failure to provide support to Duwayne Brooks and incompetence in the investigation of Stephen Lawrence's murder itself added nothing to allegations of negligence. Presumably – though this is not explained – it is the absence of allegations of bad faith that lead the Court of Appeal to that conclusion. If there had been allegations of bad faith, then a misfeasance claim would sidestep the policy limitations on negligence claims discussed at length in that case [2002] EWCA Civ 407, 2002 WL 347027, para 78.

44. For the relevance of these questions to the Lawrence case, see the Macpherson Report and Cathcart, n 5 above, passim.

45. [1984] 1 All ER 1054.

46. Associated Provincial Picture Houses Ltd v Wednesbury [1948] 1 KB 223.

47. Lustgarten, L The Goveme of the Police (London: Sweet & Maxwell, 1986) pp 69–71 Google Scholar. One of the most important decisions criticised in the Lawrence investigation was not to arrest the key suspects at an early stage but to put them under surveillance, a decision made in part because of misunderstandings by officers of their legal powers: see the Macpherson Report, n 5 above, pp 94, 97, 106.

48. The locus classicus remains Lord Denning in R v Metropolitan Police Comr, exp Blackbum [1968] 2WLR 893. But see also Rv Chief Constable of Sussex, exp International Trader's Feny (ITF) [1997] 2 All ER 65; Rv Oxford exp hey (1987) 151 LG Rev 371; R v Secretary ofState for the Home Department, exp Tanner (23 November 1998, unrepoaed), CA, R v Chref Constable of Devon and Comwall, exp CEGB [1981] 3 All ER 826.

49. [1997] 2 All ER 65.

50. See C Hilson ‘Discretion to Prosecute and Judicial Review’ [1993] CrimLR 739; and M Burton ‘Reviewing CPS Decisions not to prosecute’ [2001] Crim. LR 374.

51. Her Majesty's Inspectorate of Constabulary, n 26 above, paras 2.15–2.34. See now Home Office Code of Practice on reporting and recording racist incidents in response to recommendation 15 of the Stephen Lawrence Inquiry Report (April 2000) available at http://www.homeoffice.gov.uk/ppd/oppu/coderi.htm and Association of Chief Police Officers (ACPO) Guide to Identifying and Combating Hate Crime (October 2000) available at http://www.acpo.police.uk/policies/.

52. C Lewis Judicial Remedies in Public Law (London: Sweet & Maxwell, 2000) para 4–080.

53. Development of investigative strategies, whether general or in the particular case, will often involve ‘polycentric’ decision-making – on the basis of technical expertise – about competing courses of action involving resource allocation. See Jowell, J ‘Of Vim andvacuums: The Constitutional Context of Judicial Review’ in Forsyth, C (ed) Judicial Review and the Constitution (Oxford: Hart, 2000) pp 332–333 Google Scholar; Lewis, n 52 above, paras 4–0774-081; and cf Lord Diplock in CCSU v Minister for Civil Service [1985] AC 374 at 411.

54. Law Reform (Miscellaneous Provisions) Act 1934, s 1(1).

55. Duwayne Brooks brought an action against the Metropolitan Police alleging, inter aha, negligence in his treatment as victim and witness and lack of reasonable diligence in investigation which led to, or exacerbated, his post-traumatic stress disorder. This has been the subject of a preliminary ruling by the Court of Appeal and is discussed below: Brooks v Commissioner for the Metropolis [2002] EWCA Civ 407, WL 347027.

56. Stabbings of Witham, Pearson, Benefield, London and Banghal outlined in the Macpherson Report, n 5 above, paras 7.15–7.22.

57. To establish a duty of care it is now usually required that the damage be forseeable, the relationship between the parties be sufficiently ‘proximate’ and that it be ‘just and reasonable’ to impose such a duty (which may encompass policy questions or alternatively such questions may fall to be considered under a further separate head). See Rogers, W V H Winfield and Jolowicz on Tort (London: Sweet & Maxwell, 16th edn, 2002) p 111 ffGoogle Scholar.

58. Ancell v McDermott [1993] 4 All ER 355; Alexandrou v Oqord Times [1993] 4 All ER 328 (dubitante).

59. [1989] AC 53, [1988] 2 All ER 238.

60. Oman v Ferguson [1993] 4 All ER 344. For discussion see P Giliker ‘Osman and Police Immunity in the English Law of Torts’ (2000) 20 LS 372.

61. As well as Hill, the policy arguments are rehearsed in Welsh v Chief Constable of Merseyside [1993] 1 All ER 692; Clough v Bussan (West Yorkshire Police Authority as 3rd party) [1990] 1 All ER 431; Alexandrou v Oxford [1993] 4 All ER 328.

62. [1996] 3 All ER 449.

63. Swinney v Chief Constable ofNorthumbha [1994] All ER 692. The claim ultimately failed on the facts: Swinney v Chief Constable of Northumbria (No 2) (1999) Times, 25 May.

64. Welsh v Chief Constable of Merseyside [1988] 2 All ER 238; Swinney v Chief Constable ofNorthumbria [1994] 1 All ER 692; and obiter, Elguzouli-Daf v Comr of Police for Metropolis [1995] 1 All ER 833 at 843, per Steyn LJ.

65. Home Ofice v Dorset Yacht [1970] 2 All ER 294.

66. Osman v UK (1998) 29 EHRR 245; Z v UK (2002) 34 EHRR 3.

67. But see Wright, J Tort Law and Human Rights (Oxford: Hart Publishing, 2001)Google Scholar for extended discussion.

68. After Osmanh v UK, the stress on balance and proportionality in the particular case was accompanied by extreme reluctance to strike out actions without a full hearing on the facts (for example, Barreft v Enfield London Borough Council [ 19991 2 WLR 79). How far this will continue after Z v UK (where a more favourable view of striking out was taken) is not clear.

69. There was no previous dealing between the police and Stephen Lawrence which might found a claim that the former had assumed a particular responsibility for the latter. The courts would not be likely to regard the claimant as being particularly at risk as opposed to the public generally or sections thereof: motorists driving down a particular road at a particular time have not been regarded as a sufficiently identifiable group and Stephen's claim (as a black person in a particular part of South London where the assaults were taking place) would be hardly stronger than that in Hill (a young woman in a large area of Northern England).

70. Hence the need to emphasise that this was not the case in Waters v Metropolitan Police Commissioner [2000] All ER 934 where a claim by a police officer was not struck out on the basis that Hill could be distinguished (per Lord Slynn at 940, Lord Hutton at 945). In Brooks v Commissioner of Police for the Metropolis [2002] EWCA Civ 407 at para 73 the Court of Appeal reaffirmed that the policy considerations identified in Hill‘remain substantially valid’.

71. Primary victims are within the area of forseeable physical injury or imperilment at the moment of the accident (or attack) and secondary victims are outside that area. For recovery for psychiatric injury to secondary victims, case law has required that claimants satisfy four limiting requirements: a sudden shocking event; close ties of love and affection between those injured and those shocked proximity to the incident in space and time (including the very immediate aftermath); and perception of the incident directly rather than through a third party: Alcock v Chief Constable of South Yorkshire Police [1992] AC 310. Note, however, that more recently, in W v Essex County Council and anor [2000] 2 All ER 237 the House of Lords stressed that the concept of ‘immediate aftermath’ was still being developed and had to be assessed in the particular factual situation.

72. Dugdale, AM (ed) Clerk and Lindsell on Torts (London: Sweet & Maxwell, 18th edn, 2000)Google Scholar para 7–81; Walton, C T (ed) Charlesworth and Percy on Negligence (London: Sweet & Maxwell, 10th edn, 2001) para 2–90Google Scholar; Jones, M Textbook on Torts (London: Blackstone, 7th edn, 2000) p 161 Google Scholar; Markesinis, B and Deakin, S Tort Law (Oxford: Oxford University Press, 1999) p 133.Google Scholar

73. Walker v Northumberland [1995] 1 All ER 737; Waters v Comr of Police for Metropolis [2000] 4 All ER 934.

74. AB and orsv Tameside and Glossop HH [1997] PNLR 140; Allin v City and Hackney Health Authority [1996] 7 Med LR 167 (both discussed in N Mullany ‘Liability for Careless Communication of Traumatic Information’ (1998) 114 LQR 380).

75. W V H Rogers, n 57 above, pp 186–187; and Markesinis and Deakin, n 72 above, p 133ff.

76. In addition to Walker [1995] 1 All ER 737 and Waters [2000] 4 All ER 934, see, most recently, Hatton v Sutherland [2002] 2 All ER 1 (employer-employee relationship); and McLouglin v Grovers [2001] EWCA Civ 1743 (solicitor-client). But Bradford-Smart v West Sussex County Council [2002] EWCA Civ 7 concerned a school's responsibility to a pupil in relation to the mental health effects of bullying. The Creut7feldt-Jakob Disease litigation, Group B Plaintifs v British Medical Council (1997) 41 BMLR 157 Concerned a relationship ‘akin to doctor and patient’ and the mental health consequences of discovering that a medical trial has exposed the claimant to the risk of contracting the disease.

77. [2002] EWCA Civ 407 at paras 52–54.

78. [2002] EWCA Civ 407 at para 58.

79. [2002] EWCA Civ 407 at paras 59–74, esp at paras 73–74.

80. Justiciability arguments are also raised in the cases, but do not really differentiate the police from other professionals, such as doctors, where liability is more readily accepted. See Markesinis and Deakin, n 72 above, p 148 for trenchant comment.

81. See the references at nn 59 and 61 above.

82. Lord Hoffman ‘Human Rights and the House of Lords’ (1999) 62 MLR 159, esp at 165–166.

83. Elguzouli-Daf v Commissioner of Police for the Metropolis [1995] QB 335, discussed in Markesinis and Deakin, n 72 above, p 150.

84. Markesinis, B, Auby, J-B, Coester-Waltjen, D et al Torrious Liability of statutoly Bodies: A Comparative Analysis of Five English Cases (Oxford: Hart Publishing, 1999)Google Scholar; Wright, n 67 above.

85. [1997] 2 WLR 824. Since 1968, the race relations legislation has applied to the police in relation to their employment practices and RRA 1976, along with the Sex Discrimination Act 1975, has already posed a considerable challenge to police culture and its notions of, and respect for, equality. For example, several cases have discussed the issue of chief constables’ liability for sexual harassment of female police officers by fellgw police officers – for example, Waters v Commissioner of Police of the Metropolis [1997] ICR 1073, CA; Chief Constable of the Lincolnshire Police v Stubbs [1999] IRLR81, EAT.

86. [1997] 2 WLR 824 at 836. Both Hutchison and Otton LIJ referred to Templeman U s judgment in Savjani v Inland Revenue Commissioners [1981] QB 458 at 466–467, in which he recognised the administrative difficulties posed by the Act to many large organisations but stressed that RRA 1976 ‘was brought in to remedy very great evil. It is expressed in wide terms, and I should be very slow to find that the effect of something which is humiliatingly discriminatory in racial matters falls outside the ambit of the Act’.

87. Counsel for the claimant had ‘not suggested that pursuing and arresting or charging alleged criminals is the provision of a service. What is said is that the service sought by the plaintiff was that of protection …’: Hutchison LJ at 835f.

88. At 810g.

89. He commented that counsel for the defendant ‘wisely shied away from suggesting that a policeman might with impunity decline to investigate a complaint or to protect a person from violence on account of his or her colour’. He concluded that Ms Farah's pleadings might give rise to a s 20 claim where officers ‘failed to react to the claimant's emergency call, to investigate her account at the scene, and to afford her protection all on account of her colour’: at 840g (emphases added).

90. N Hopkins and V Dodd ‘Lawrence family accepts f320.000 payout from Met’Guardian, 20 December 2000.

91. [2002] EWCA 407, 2002 WL 347027 at para 39.

92. Macpherson Report, n 5 above, recommendation 11.

93. The new s 19F exempts ‘decisions not to institute criminal proceedings or, where a decision not to institute criminal proceedings has been taken, any act done for the purpose of enabling the decision whether to institute criminal proceedings to be made’.

94. Mike O'Brien (Parliamentary Under Secretary, Home Department), SC D (Lords), 18 April 2000.

95. This would be so even if witness and victim are of different races: Showboat Entertainment Centre v Owens [1984] 1 All ER 836; Weathersfield (trading as Truck and Van Rentals) v Sargent [1999] IRLR 94.

96. There was immediate evidence that the suspects in the Lawrence case prefaced their attack with the words ‘what, what, nigger’. There were allegations of racial comments in relation to earlier stabbings by some of the suspects. See Cathcart, n 5 above, p 9 and ch 5.

97. Glasgow City Council v afar [1998] 2 All ER 953. See McColgan, n 11 above, p 253ff for a review of recent cases.

98. Council Directive 2000/43/EC.

99. Home Office Code of Practice on reporting and recording racist incidents in response to recommendation 15 of the Stephen Lawrence Inquiry Report (April 2000) available at http://www.homeoffice.gov.uk/ppd/oppu/coderi.htm; and ACPO Guide to Identrfying and Combating Hate Crime (2000) available at http://www.acpo.police.uWpolicies/.

100. Law Reform (Miscellaneous Provisions) Act 1934, s I(1).

101. Much was made in public debate of the eventual acceptance by government that liability should go beyond direct discrimination and include indirect discrimination. Indirect discrimination involves a requirement or Condition which is equally applied to different racial groups, but ‘the proportion of a racial group that can comply with it is considerably smaller than the proportion of persons not of that racial group’. The requirement or condition must be unjustifiable and ‘to the detriment’ of the individual claimant: RRA 1976, s 1(l)(b). This may be less pertinent to cases of racially discriminatory investigation of crimes against ethnic minority victims because it is difficult to see where a ‘requirement’ or ‘condition’ is being applied in any of these instances. This is more likely to be an issue in relation to the treatment of suspects. Bail and sentencing decisions linked to employment and/or housing status might need to be carefully justified where ethnic minority groups are systematically disadvantaged.

102. Osman v UK (1998) 29 EHRR 245, para 115. On the distinction between negative and positive obligations, see Harris, D, O'Boyle, M and Warbrick, C Law of the European Convention on Human Righrs (London: Butterworths, 1995) p 19 Google Scholar and, on the positive obligation in relation to right to life, pp 38–39.

103. [1999] 1 FLR 193 (also http://www.dhcour.coe.tr/hudoc), esp at para 115.

104. [1999] 1 FLR 193 at para 116.

105. The key recent cases concerning the UK are McCann v UK (1996) 21 EHRR 97; Jordan v UK Application 24746/94, 4 May 2001; Edwardr v UK (2002) 35 EHRR 19; Keenan v UK (2001) 33 EHRR 38. They are helpfully reviewed in R (on the application ofhin) v secrerary of State for the Home Department [2002] EWCA Civ 390, WL 347047. See also P Ferguson ‘The right to life: some procedural requirements’ (2001) 151 (6986) NLJ 808.

106. (1998) 28 EHRR 408.

107. The Ergi v Turkey judgment of 28 July 1998 has now been reported at (2001) 32 EHRR 18.

108. (2000) 30 EHRR 950.

109. Tanrikulu v Turkey (2000) 30 EHRR 950, para 99; Ergi v Turkey (2001) 32 EHRR 18, para 77; Yasa v Turkey (1998) 28 EHRR 408, para 113.

110. Yasa v Turkey (1998) 28 EHRR 408, para 100. Almost identical words are used in Ergi v Turkey (2001) 32 EHRR 18, para 82 and Tanrikulu v Turkey (2000) 30 EHRR 950, para 103. The same duty applies to attempted murder: Yasa v Turkey, para 100.

111. The English Court of Appeal, in a recent consideration of Strasbourg jurisprudence involving deaths in custody and state collusion, has concluded that the nature of the investigative procedures required to satisfy Art 2 – including the degree of publicity and family participation – will depend on the circumstances of the case. The degree of state involvement in the original death would affect these requirements: R (on the applications of Middleton) v HM Coroner for W Somersetshire, R (on the application of Amin) v Secretary of State for Home Dept [2002] EWCA Civ 390 at paras 62–63, WL 347047. The key cases discussed are Edwards v UK (2002) 35 EHRR 19; Jordan v UK Application 24746/94, 4 May 2001; Keenan v UK (2001) 33 EHRR 38. See also Simor, J and Sawyer, J ‘Death in Custody’ (2001) 151 (6991) NLJ 992.Google Scholar

112. (2000) 30 EHRR 950, paras 48–49, 103ff. The authority of the decision in Tunrikulu is emphasised by its being taken by a Grand Chamber of 17 judges. For discussion, see Lester, A and Pannick, D Human Rights and Practice: Supplement to the First Edition (London: Butterworths, 2000) para 4.2.32ff.Google Scholar

113. ‘… sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status

114. Harris, O'Boyle and Warbrick, n 102 above, p 463.

115. Wadham, J and Mountfield, H Human Rights Act 1998 (London: Blackstone, 1999) p 111 Google Scholar. On proposals to introduce a freestanding provision on discrimination, see Khaliq, U ‘Protocol 12 to the European Convention on Human Rights: a step forward or a step too far?’ [2001] PL 457 Google Scholar.

116. Inze v Austria (1987) 10 EHRR 394, cited by Harris, O'Boyle and Warbrick, n 102 above, p 465.

117. Wadham and Mountfield, n 115 above, p111.

118. Harris, O'Boyle and Warbrick, n 102 above, p 468; Khaliq, n 115 above, p 457.

119. The term is not comprehensively defined, but police functions clearly come within the partial definition under s 6(3)(b): ‘functions of a public nature’Rights Brought Home: The Human Rights Bill (Cm 3782, 1997) para 2.2.

120. Any English cout may award damages, deckxations, injunctions and other prerogative relief normally available to it: HRA 1998, s 8(1).

121. HRA 1998, s 2(1).

122. The situation in relation to racial harassment that is not threatening to life would be more complex. The argument above in relation to Art 2 rests on the specitic case law in Osman and the Turkish cases clearly imposing direct positive duties on the state. However, it might be possible to construct an argument based on Art 8 (right to private and family life) read in conjunction with Art 14 if there was evidence of discrimination in police failure to protect minorities from repeated writing of graffiti on doors or faeces through the letter box. For cases asserting a positive state obligation to secure an effective respect for private or family life, see March v Belgium (1979) 2 EHRR 330; Xand Yv Netherlands (1985) 8 EHRR 235.

123. HRA 1998, s 3 requires the courts to interpret legislation in a way which is compatible with Convention rights. For extended discussion of the current and future influence of the ECHR on tort law, see Wright, J Tort Law and Human Rights (Oxford: Hart Publishing, 2001)Google Scholar. For more general discussion of the common law tendency to develop the law in step with such rights, see Bamforth, N ‘The True “Horizontal Effect” of the Human Rights Act 1998’ (2001) 117 LQR 34 Google Scholar. For a broad view that HRA 1998, s 6 imposes a general duty on courts to decide cases in accordance with Convention rights, see Wade, H W R ‘Horizons of Horizontality’ (2000) 116 LQR 217 Google Scholar (but see contra, Buxton, R ‘Human Rights and Private Law’ (2000) 116 LQR 48 Google Scholar).

124. The limitation period for a claim under HRA 1998, s 6 is one year (HRA 1998, s 7(5)) unless the proceeding in question has a shorter time period (such as the three-month limitation period for judicial review). Claims under RRA 1976 would need to be made within six months of the act complained, unless an application for assistance has been made to the CRE within six months, whereupon the time limit is extended by two months (RRA 1976, ss 57,68). The limitation period in tort claims is generally three years for personal injury or death. Personal injury includes ‘any impairment of a person's physical or mental condition’ (Limitation Act 1980, s 38(1)), including damages for distress and depression: Bennet v Greenland Houchen & Co [1998] PNLR 458, cited by Clerk and Lindsell, n 72 above, para 33–29.

125. Aggravated damages are available under the statutory discrimination torts where it is thought appropriate to give especial recognition to damage to feelings caused by deliberate wrongdoing or bad motives: Prison Service v Johnson [1997] ICR 275. They are also available for misfeasance: Kuddus v Chief Constable of Leicestershire Constabulary [2001] 3 All ER 193, but not in negligence claims-even if the behaviour was crass: Kralj v McGrath [1986] 1 All ER 54. The position in relation to punitive or exemplary damages in response to oppressive, arbitrary or unconstitutional executive action is less clear. In Kuddus v Chief Consrable of Leicestershire Constabulary [2001] 3 All ER 193 the House of Lords removed the general restrictions on the causes of action for which exemplary damages could be awarded and indicated that misfeasance could attract such damages. But the Lords differed in their views on restrictions that might apply to negligence or statutory torts such as discrimination. The question in relation to HRA 1998 claims is also left open. (Contrast the less restrictive approach of Lords Slynn, Hutton and Nicholls with that of Lord Scott at 224 and Lord Mackay at 206.)

126. Damages for non-pecuniary loss in HRA 1998 and RRA 1976 cases are unlikely to be substantial. HRA 1998, s 8(4) provides that in determining damages the relevant court must ‘take into account’ principles applied by the ECHR to awards under Art 41 of the Convention. Wadham and Mountfield, suggest £10,000-£15,000 as a likely range for non-pecuniary loss: n 115 above, p 46. In Tanrikulu v Turkey (2000) 30 EHRR 950, £15,000 was awarded for non-pecuniary loss where the claimant's husband's murder was inadequately investigated. Average awards for injury to feelings in racial harassment cases under RRA 1976 did not exceed £5,000 in 1997, though the EAT has upheld an award of f21,000: McColgan, n 11 above, p 288. For further discussion, see Hill, n 1 above, pp 88–89.

127. Domestic discrimination law allows inferences of discrimination to be drawn from evidence establishing a prima facie case.: King v Great Britain China Centre [1992] ICR 561. The new European Race Directive 2000/43/EC when introduced into domestic law will reverse the burden of proof once facts exist from which it may be presumed that discrimination has taken place. This may provide an advantage over the normal tort principles that the claimant must prove his or her action on a balance of probabilities.

128. For consideration of this see P Rock After Homicide (Oxford: Clarendon Press, 1998), esp p 94ff.

129. Balgobin and Francis v London Borough of Tower Hamlets [1987] IRLR 401.

130. For a general review see chapters by S Savage and S Charman, I Waters and A Butler in FLeishman, Loveday, B and Savage, S (eds) Core Issues in Policing (Harlow: Longman, 2nd edn, 1999)Google Scholar. For a sceptical view of the capacity of such techniques to deliver better race relations see Hallam, S ‘Effective and Efficient Policing: Some Problems with the Culture of Performance’ in Marlow, A and Loveday, B (eds) After Macpherson: Policing after the Stephen Lawrence Inquiry (Lyme Regis: Russell House, 2000)Google Scholar.

131. The increasing of trust and confidence in policing amongst ethnic minority communities has been a Ministerial Priority since 1999–2000 and this is supported by a set of Key Performance Indicators and Best Value Performance Indicators. The constitutional framework for establishing priorities and their measurement is set out in the Police Act 1996, amending the Police and Magistrates’ Court Act 1994. See Home Office Race Equality in Public Services, March 2000, p 34 and February 2001, p 55.

132. Her Majesty's Inspectorate of Constabulary, n 20 above, p 18, para 2.15.

133. In an allegedly discriminatory recruitment case, the Cout of Appeal accepted the employer's defence on the basis of its compliance with the CRE code of practice in relation to selection procedures, criteria and interviewing: Martin v Marks & Spencer [1998] IRLR 326.

134. Association of Chief Police Officers Guide to Identifying and Combating Hate Crime (October 2000) available at http://www.acpo.police.uk/policies/. This document contains, inter alia, sections on treatment of victims, their family and witnesses, responsibilities of the first officer on the scene and of investigating officers and their line supervisors, local crime supervisors and the commander of the Operational Command Unit. All these areas were matters of controversy in the Lawrence case.

135. The latest in three recent Reports is HMIC Winning the Race: Embracing Diversity (2000) available at http://www.homeoffice.gov.uk/hmic/pubs.htm. The Recommendations are set out in Appendices E-G.

136. Her Majesty's Inspectorate of Constabulary, n 135 above, p 11, para 1.13.

137. See Home Office Stephen Lawrence Inquiry: Home Secretary's Action Plan, Second Annual Report on Progress, February 2001, p 3, available at http://www.homeoffice.gov.uk, for an indication of the way HMIC inspections will be used to assess progress on qualitative aspects of race relations. Race relations issues are to be incorporated into the HMIC Risk Assessment Model for individual force inspections (p 4) which will enable inspections to focus on areas and forces of particular need.

138. 326 HC Official Report (6th series) col 392, 24 February 1999, Rt. Hon Jack Straw MP:’… the new law will allow the Commission for Racial Equality to investigate what is happening within individual police forces and other public services.’ See also Home Office press release, 1 March 1999 in response to Winning the Race–the revisit [HMIC report]. The Commission may conduct a formal investigation for any purpose connected with the performance of its duties under s 43(1) of RRA 1976, which include the duty ‘to promote equality of opportunity, and good relations, between persons of different racial groups generally’: RRA 1976, s 43(l)(b).

139. Reform of the Race Relations Act 1976 Proposals for change submitted by the CRE to the Rt Hon Jack Straw, Secretary of State for the Home Department, on 30 April 1998 (London: Commission for Racial Equality, 1998) p 33.

140. RRA 1976, s 51.

141. Re Prestige Group Plc [1984] ICR 473 at 483, per Lord Diplock.

142. There are two forms of formal investigation: the ‘general’ investigation (such as an inquiry into the general provision of certain services), which does not involve the naming of individual service-providers, and a ‘specific’ investigation confined to the activities of a named person.

143. RRA 1976, s 58(2).

144. The CRE may not serve a non-discrimination notice unless they have given the person prior warning of their intention, specifying the grounds on which they intend to issue a notice and offering them an opportunity to make oral or written representations in the matter within no less than a 28-day period, and taken account of any such representations: RRA 1976, s 58(5).

145. CRE press release, 5 December 2000.

146. If there is a failure to comply, the CRE can apply to county court for injunction or a court order (in Scotland): RRA 1976, s 62.

147. Commission for Racial Equality 1999 Annual Report p 24. http://www.cre.gov.uklpubls1cat_annrep.html.

148. http://www.cre.gov.uk/about/legalpow.html.

149. R Verkaik ‘Inquiry condemns CPS as racist’Independenf, 19 June 2001. A formal inquiry has also been launched into racial discrimination in the Prison Service following the murder of Zahid Mubarerek in Feltham Young Offenders Institution by a racist cellmate: [2002] EWCA Civ 390, available at 2002 WL 347047.

150. For consideration of some of the problems of formal investigations, see Coussey, M ‘The Effectiveness of Strategic Enforcement of the Race Relations Act 1976’ in Hepple, B and Szyszczak, E (eds) Discrimination: The Limits of Law (London: Mansell, 1992)Google Scholar.

151. Re Prestige Group Plc [1984] ICR 473, applying London Borough of Hillingdon v Commission for Racial Equalily, [1982] IRLR 424. The CFE must inform the named organisation of the grounds.

152. For example, the CRE was concerned at the evidence of racial discrimination in the armed forces for over a decade before it could launch an investigation. It needed an Army Board of Inquiry into racial discrimination in a cancelled transfer into the Household Cavalry before it could act: Commission for Racial Equality Ministry of Defence (Household Cavalry), report of a foml invesfigation (1996) p 5, para 1.1.1. The Better Regulation Task Force has called for ‘a broadening of the sources of evidence the Commissions can act upon’ but also supports ‘the basic principle that they should still need some prima facie evidence’ before commencing an investigation: Better Regulation Task Force Review: Anti-Discrimination Legislation (May 1999) p 9. The Task Force was appointed in September 1997 to advise the government on improving the quality of government regulation.

153. And through that, perhaps somewhat uncertainly, practice on the ground.

154. The Audit Commission is an independent agency charged with promoting proper use of public money, in part by reports on the economy, efficiency and effectiveness of public services.

155. HMIC is a statutory body charged with examining and improving the effectiveness of the police service: Police Act 1964, s 38.

156. Measured by four performance indicators: numbers of recorded racist incidents; use of stop and search powers and their impact on different ethnic groups; levels of recruitment, retention and progression of minority ethnic staff; and surveys of public satisfaction (where they are available) by different ethnic groups.

157. Commission for Racial Equality, n 147 above, p 20.

158. Association of Chief Police Officers, n 134 above.

159. Stephen Lawrence Inquiry: Home Secretay's Action Plan, Second Annual Report on Progress (London: Home Office, 2000) p 15, available at http://www.homeoffice.gov.uk.

160. Commission for Racial Equality 2000 Annual Report, p 8, available at http://www.cre.gov.uk/publs/cat-annrep.html.

161. As the Commission has itself put it, the report's findings and recommendations ‘have provided the CRE with a new framework for its work with organisations to eradicate racism and discrimination’: Commission for Racial Equality 1999 Annual Report, p 15, available at http://www.cre.gov.uk/publs/cat_annrep.html.

162. New s 71(1), RRA 1976. This replaces a general duty which the original s 71 had placed on ‘local authorities’ and is different in three respects. First, it applies to a wide range of public authorities. Secondly, it is not up to the individual authority to decide whether the promotion of race equality is an ‘appropriate’ activity and, finally, it requires the relevant authorities to have ‘due regard’ to race equality, rather than simply requiring them to ‘make arrangements’ for having due regard.

163. RRA 1976, Sch 1A. As yet, Chief Officers of Police are not covered, though they are included in the list of public authorities proposed for addition to Sch 1A. The new s 71(5) empowers Secretary of State to amend the list in Sch 1 A. Current proposals are outlined in Home Office Race Relations (Amendment) Act 2000: New Laws for a Successfil Multi-Racial Britain – Proposals for Implementation (London: Home Office, February 2001) ch 4 and Appendix 5.

164. New s 71 (2), RRA 1976. The government intends that the duties are kept proportionate to the size and functions of public sector bodies – see Home Office, n 163 above, ch 5, p 20. It is envisaged that many of the arrangements are already required by administrative action (ch 6).

165. RRA 1976, s 71C.

166. Commission for Racial Equality The General Duty to Promote Racial Equality: Guidance for public authorities on their obligations under the Race Relations (Amendment) Act 2000 (London: Commission for Racial Equality, 2001).

167. One of six that are projected. See Home Office, n 163 above, p 28, para 8.5.

168. The notice would require the public authority to comply with the duty and to inform the CRE of the steps it has taken to do so. The CRE may apply for a court order requiring the authority to comply with a requirement of a compliance notice where it considers that the authority has not complied with it within three months of its service. The CRE could also require further information to verify that the duty has been complied with. In the event of an authority's failure to provide information required by a compliance notice, the CRE is also empowered to apply for a court order. See RRA 1976, ss 71D–E.

169. Home Office, n 163 above, ch 5, p 20. The government expects the CRE to use its powers ‘only if a partnership approach fails to work’.

170. Cf ‘Common sense on crime’, speech by William Hague to Centre for Policy Studies, 14 December 2000, available at http://www.conservatives.com/newspeeches. Reported by P Wintour and N Watt ‘Hague to attack Lawrence report in call for more stop-and-search’Guardian, 14 December 2000.

171. Bridges, L ‘The Lawrence Inquiry – Incompetence, Corruption and Institutional Racism’ (1999) 26(3) J Law and Society 298 CrossRefGoogle Scholar.

172. Bowling, n 19 above, pp 259ff and 282–283. For further analysis of how management initiatives may not alter embedded features of police practice, see McConville, M and Shepherd, D Watching Police, Watching Communities (London: Routledge, 1992) pp 211–220 Google Scholar. For a police view that sees the problem but shows greater optimism, see HMIC Winning the Race: Policing Plural Communities Thematic Inspection Report on Community and Race Relations 1996–97 (London: HMIC, 1997) Executive Summary.

173. See Hallam, n 130 above, p 89; and Fitzgerald, M, Hough, M, Joseph, I et al Policing for London (London: Willan, 2002)Google Scholar, summarised by M Hough ‘Partners in crime’Guardian, 28 May 2002.

174. Claims of discrimination under s 20 are heard before the county court, or a sheriff court in Scotland.

175. MacCorrnick and Garland, n 9 above, p 12.

176. A professed reticence as to institutional competence is expressed in several of the judicial review and negligence cases discussed in this paper.

177. L Sebba ‘Will the “Victim Revolution” trigger a reorientation of the Criminal Justice System’ (1997) 1–3 Israel LR 379.

178. Recommendation 41 of the Macpherson Report, n 5 above, p 331.

179. A view that would be extremely controversial in France, where such victim participation rights are highly regarded and developing: hi du 15 juin 2000 renforpnt la protection de la présomption d'innwnce et les droits des victims; and A D'Hauteville ‘Les droits des victimes’ Revue des sciences criminelles et du droit compare’ (2001) 1 janv-mars 107.

180. Home Office The Role of Victims in the Criminal Justice Process. Report of a Home Office Conference at Shrigley Hall Hotel, Macclesfield (Liverpool: Home Office Special Conferences Unit, 1999) p 42.

181. Sebba, n 177 above, p 393.

182. Home Oflice Stephen Lawrence Inquiry, Home Secrercry's Action Plan–Second Annual Repor? on Progress (London: HMSO, 2001) p 26 Google Scholar, available at http://www.homeoffice.gov.uk.