Marke v Crown Prosecution Service [1991] UKEAT 63_90_0205

EAT

Marke v Crown Prosecution Service

[1991] UKEAT 63_90_0205 · 1991-05-02

MR JUSTICE WOOD (P): This is an Appeal by way of a Preliminary Hearing by Mr Marke. He appeals against the Decision of an Industrial Tribunal sitting at Hull under the Chairmanship of Mr Myers, who in September and October 1989 heard allegations being made by Mr Marke that he had been the subject of unlawful racial discrimination at the hands of his employers the Crown Prosecution Service. He represented himself before the Tribunal. He is a member of the Bar; the Crown Service was represented also by Counsel.

Mr Marke was born in November 1938; he comes from Sierra Leone and he is black. I think he must have been called in about 1981 because he did pupillage in Chambers here in London and practised in London for some two years before then in 1983 he returned to Sierra Leone where he became a stipendiary magistrate.

The law there is modelled on the common law of England but also, as we know, with the customary law of Africa itself and the legislation out there. In 1988 he returned to this country and applied to the Civil Service Commission to be appointed to the Crown Prosecution Service, he failed in that application. He had the basic qualifications and he was employed as a casual prosecutor at the Humberside branch in Hull. The various people who are senior to him are mentioned in the Decision and initially he was taken on on a short-term basis; he spent, as he has explained to us, approximately 3 months in Hull and 3 months at Grimsby before leaving the Service. It is during those 6 months that he alleges there were a number of matters which gave rise to his plea that he had been discriminated against on the grounds of his Race.

The Notice of Appeal against the rejection of his plea by the Tribunal is in his own handwriting. But he has been kind enough, to provide us today, with a typed version of the points which he wishes to make; they are five in number.

The first point he makes is that when he was first employed he was given the same salary as a Mr Crabtree who was also a member of the Bar, who was white, but who had not had a pupillage at the Bar.

It is right that they were both "new starters" in the Service and they were both paid the same level which was the minimum level appropriate for that area. The Tribunal examined the facts in paragraph 4) of paragraph 4 and they find:

"We can find no evidence at all that Mr Marke was discriminated against on racial grounds by being offered the same level of remuneration as Mr Crabtree."

Mr Marke before us, has emphasised this point; he feels very strongly that Mr Crabtree was not as well qualified as he, was but they were both new starters, they were both on a level in the same position and the Service was paying them the same with the "new starters" basic salary.

The Tribunal looked into it, they found as a matter of fact against Mr Marke and we see no error in the approach on that topic.

The second point being made is that when Mr Marke moved to Grimsby there was on a wall, near the offices occupied by the Crown Prosecution Service a large "NF" which indicates I think, the National Front. It was a large mark on the wall and the case that Mr Marke was putting to the Tribunal was that although the Tribunal found that that had been on the wall for some considerable time before his arrival at those premises, nevertheless they discriminated against him because they did not take steps to remove it. He walked passed it daily and found it offensive.

Initially it seems from the face of the Decision that Mr Marke was suggesting that the 'NF' appeared after his arrival, but that finding of fact, by which Mr Marke loyally abides in his submissions to us, was that it had been there for some considerable time and the issue therefore was by not cleaning this, as Mr Marke had shown, that the Service acted to his detriment. The Tribunal, yet again, decided against Mr Marke that he had suffered no detriment as a result of the failure to clean off the NF from the wall.

The third point taken, although it is fact 4 on the typewritten document, was that Mr Marke felt that he was being asked to do a specialist work in the Juvenile Court for which he was not really suited; that he had not been given sufficient training and also that insofar as any criticism was made of his work then he had not been provided with the files on time, so that he could go into Court and prepare himself adequately. The way in which this becomes relevant is that after being at Hull for some time a number of adverse comments and complaints were received by his superiors from magistrate's clerks and from magistrates. Each of those criticisms was carefully investigated; his seniors came and listened to him in Court in both areas and as a result of their observations and complaints, looking at the picture as a whole, ultimately his employment was not continued. Arising out of all those factors, He suggests that he was asked to do work for which he was not really suited.

The Tribunal went into this in sub-paragraph 10) and 25) of paragraph 4. They heard evidence and made clear findings. So far as the files were concerned, this is dealt with in paragraph 10) where they say this and I am quoting:

"We are satisfied on the balance of probabilities and on the evidence that we have, that Mr Marke was not singled out for deliberate treatment which meant that he had from the very start to fight against incomplete files, or absence of files and the problems that they cause. We find to the contrary that he was given time to get his files in order and to familiarize himself with them well before he was required to stand on his feet, address the court and explain the nature of the prosecution that was being brought."

That is the finding of fact on the files.

So far as the question of specialization is concerned Mr Marke was making the point to us that his experience was in the ordinary adult magistrate's court work, prosecuting, I imagine, either for petty thefts or traffic offences and that sort of thing and in the family work. The Tribunal dealt with that in detail in paragraph (25). They mention the juvenile court; and they examined a brochure in which it was indicated that there was a possibility of specialization. Then in the middle of paragraph (25) they say this:

"We can find no evidence that Mr Marke, when he was in court in Hull or in Grimsby, discharged himself with any conspicuous skill. We find that he was assigned to work that he could reasonably be expected to do, and indeed should have been capable of doing; he was given the time to prepare and the opportunity to do his best. He was not saddled with work of an administrative nature. We taken the view, unanimously, that in the manner of requiring him to do his work in the courts the respondents did not discriminate on the grounds of his race. They required him to perform what an advocate should reasonably be able to perform against the background of his training and his experience. We can find no fault on this score with the respondents.

So there again they find against him and there is no error of law which we are able to discern.

The next point made by Mr Marke, but not pressed so much before us as his other points, was his complaints that a Mr Woodward from the Grimsby office had been guilty of making racist remarks and behaving towards him in a prejudicially racist manner.

There were a number of allegations which are dealt with in sub-paragraphs 26), 27), 28), 29) and again these are all examined. There are issues of fact as to what occurred and in those paragraphs it is clear that the Tribunal do not accept the versions being put forward by Mr Marke and do not find, that words were spoken or things happened as complained. They are findings of fact and as we understood Mr Marke's submission he readily understood that the facts on that issue were really being found against him and he was not pressing it strongly before us.

Lastly, the question of the interpretation of the Act was raised and we were referred, and rightly referred, to Section 1 of the Race Relations Act 1976 and to Sections 4(1)(b) and 4(2)(b) and (c). We have looked at the wording of those sections and Mr Marke has made the point that it is quite possible to have unintentional discrimination; that is clearly established in law. However, what he was alleging, as we understand the issues, was that there had been positive discrimination, there is no question of indirect but direct discrimination, in these various ways during his period with the Crown Prosecution Service at Hull and Grimsby and in each of those cases the Tribunal had to decide whether his employers or the other persons involved had discriminated against him in any circumstances relevant for the Act and had treated him less favourably than they treat other persons on racial grounds. That was the essential wording. So the Tribunal had to find the facts; look at the section and decide whether that there had been less favourable treatment on racial grounds.

It is a long Decision that has been given, with great care by the learned Chairman. It stretches over some 10 pages of closely typed typing. The Tribunal look at the facts; they look at the law and they end up saying:

"we are quite satisfied that Mr Marke has failed to show, and plainly failed to show, that his dismissal from the post of casual crown prosecutor had anything to do with him being a black man. His dismissal and his treatment were nothing to do with him being a black man from Sierra Leone; he was not discriminated against, we find, at any stage or at any time. The terms of his employment were not racially motivated nor were the chances of access to training: he was not dismissed for anything other than good cause, his lack of capability and his lack of potential to make a prosecutor. We can find no evidence that he was subjected to any other detriment. We hold that this application is not well founded and it is hereby dismissed unanimously."

We have searched through the papers and looked to see whether we can discern any error of law and we are quite unable to do so. It follows therefore that we are grateful to Mr Marke for the way he has presented his case, as one would expect from a member of the Bar, but we are unable to help him because we can find no error of law and the Appeal must be dismissed at this juncture.