Is police discretion subject to the Public Sector Equality Duty (PSED)?

Question

Polly the police officer is charged with monitoring and policing a large demonstration which is evenly split between pro-X and anti-X factions. Or alternatively lets say it is dominated by predominantly anti-X attendees, while there are merely one or two pro-X individuals present.

I guess supposing that both pro-X and anti-X positions are to be afforded protection under article 10 and that they both enjoy protection as a philosophical belief characteristic under the equality act, is a police officer bound by the public sector equality duty in addition to Peeleian policing principles like neutrality, to treat them in ways which don’t either directly or indirectly disproportionately advantage one position’s holders over another’s?

For example, the anti-X group stages a rally and a pro-X individual walks past and finds it objectionable so spontaneously shouts “long live X!” Perhaps some of the anti-X demonstrators come over when start shoving threatening and kicking him. Mr. pro-X reports these crimes to officer Polly, who declines to investigate the crimes despite seeing clear video evidence that she expressly agreed clearly evidenced a crime under the power of her discretion on the grounds that Mr. pro-X was, by exercising his article 10 enshrined rights, “was deliberately looking for a reaction” from the crowd. But this seems to imply that the cries of anti-Xers were not in organising and staging their large anti-X demonstration weren’t identically so “deliberately looking for a reaction” from the general public (which they appeared to get in the form of the spontaneous counter-demo evoked from Mr. pro-X).

Alternatively Alice goes to a pro-Y demo as an anti-Y’er planning to counter demonstrate against it, knowing that this may very well provoke the more lawless elements of the pro-Y contingent to commit breaches of the peace or other crimes against her in response. The police see her beginning to stage her counter-demo, and anticipate the reaction that it might elicit so order her to abandon her nascent counter demonstration. She states that she doesn’t wish to be daunted or deterred from exercising her article 10 rights by the threat of lawless thugs’ criminal temperaments. The police arrest her as she continues her protest against the pro-Y brigade for committing a breach of the peace but none of the far more rowdy and clearly criminal members of the crowd that are the causes and subject of their concern as they begin gathering in a hoard around her, approaching her, shouting threats and insults etc.

The result of their seemingly impending criminal behaviour is that Alice’s article 10 rights as an anti-Y’er are curtailed while the pro-Y crowd’s lawless rowdiness seems to get rewarded by not effectively curtailing at all the ability of the pro-Y crowd to exercise their rights around their positions about Y.

Have these police officers breached their PSED by privileging those of one view more than those of another?

Answer 1

Polly is obliged to enforce the law and maintain the peace subject to the orders she receives and her own discretion

Some of the things you have described clearly criminal, some aren’t, and some are arguable. Notwithstanding, Polly has no duty to intervene or refrain from intervention in any of them.

UK police officers, like all common law police officers have discretion on if, when, and how to act. The fact that Polly chooses to arrest one offender and not another is no different from her decision to pull over one speeding driver and not another - “but other people were doing worse things than I” has never been an effective defense in court.

Polly's choices are subject to administrative review, praise, and censure by her superiors. This may be internally driven or as the result of a complaint. They are also subject to judicial review in some circumstances. Such reviews may include the extent to which Poly's motivations are unlawfully discriminatory.