England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2A 2LL
		27 January 2017

1. LORD JUSTICE McCOMBE: On 11th May 2016, in the Crown Court Kingston-upon-Thames, after a trial before His Honour Judge Dogson and a jury, the present appellant was convicted of two offences, on count 1 of religiously aggravated intentional harassment, alarm or distress and on count 2, racially aggravated intentional alarm or distress, contrary in each case to section 31(1)(b) of the Crime and Disorder Act 1998.
2. On 1st June 2016 she was sentenced to a 12 month community order with conditions of residence and a 4 month curfew. In addition a restraining order, pursuant to section 5 of the Protection from Harassment Act 1997, was imposed together with an order for costs and the so-called victim surcharge of £60.
3. The appellant now appeals against conviction by leave of the single judge.
4. The case concerned two separate incidents on the 3rd and 9th July 2015 involving a Ms Daisy Moloney, who is a practising Muslim on the one hand and, on the other hand, the appellant. The background facts and cases for the Crown and the defence respectively were as follows. The prosecution case was that on the first occasion (count 1) on 3rd July, the appellant swore at Ms Moloney, told her to go back to her own country, told her to remove the head scarf that she was wearing and accused her of being a terrorist. The incident had been witnessed by Ms Moloney's partner, Mr Lewis, and by an acquaintance, a Ms Coverley. Ms Moloney had taken a photograph of the appellant which became an exhibit at trial.
5. On the second occasion, 9th July 2015 (count 2) Ms Moloney had been taking her son to school when she was approached by the appellant again, who swore at her, and called her son, rather than her, "a nigger".
6. The defence case, at trial, was that the case for the Crown was fabrication. The appellant said she was of previous good character, as indeed she was, and was frail at the time of the incident. She gave evidence and called her husband who was by coincidence also of Muslim decent.
7. The main prosecution evidence was from the complainant, Ms Moloney. She said she was, as we have said, a practising Muslim. She covered her hair habitually with a headscarf and, if she was attending the mosque, she told the jury, she wore a long dress. On 3rd July, as she was strapping her daughter into a car seat, she saw the appellant, whom she knew by sight, approaching. She said the appellant was talking very loudly and saying "fuck off, fuck you". Ms Moloney said to her: "What's your problem?" and the appellant was said to have replied that Ms Moloney was her problem. She questioned her about her headscarf and told her "take this off." Ms Moloney said that the appellant told her to go back to her own country and that she did not want people like her in her country. She shouted many times that Ms Moloney was a terrorist.
8. Ms Moloney said she was embarrassed and distressed. She got into the car and drove off whilst upset and crying. Her boyfriend said that she should report the matter to the police so she said she photographed the appellant who then put her middle finger up at her.
9. Supporting evidence in the Crown case was given by Ms Moloney's partner and by Ms Coverley, the latter saying that she had a home nearby, with her window open and could hear what was going on. She recognised the appellant as a woman who lived in the area. She spoke of abuse being directed by that woman to Ms Moloney who appeared to be shocked. It was put to Ms Moloney's partner that he was lying in his account and Ms Coverley was cross-examined in effect as to discrepancies in her account, rendering it was incredible. Each however insisted he or she was being accurate and truthful.
10. In respect of count 2 the evidence of Ms Moloney was she was taking her son to school when she noticed the appellant approaching. Again the appellant was swearing and her manner was angry. Ms Moloney's son said to her: "Mummy, why is she looking at you like that?" whereupon the appellant said to her son, who was of mixed race, "Shut up you nigger". Ms Moloney said that she carried on taking her son to the school but the appellant was behind her. Ms Moloney called the police.
11. In cross-examination on this matter discrepancies between her evidence and witness statements were put to her. She denied fabricating the account which we had sought to summarise. She accepted there were discrepancies but said the main points of the evidence reflected what had happened.
12. For her part, in relation to count 1, the appellant gave evidence that she was in poor health and frail at the time of the incident. On 3rd July she had been walking along when she saw two men and Ms Moloney who asked her what she was doing there. She had not really understood the question and asked the same thing. She carried on walking but a man had jumped up and had taken a picture of her. She had not understood what was happening.
13. In respect of count 2 there was a dispute about timings. The appellant said she had gone to the hospital with her husband. They left the house at about 9.45; it might have been 8.45. She could not recall but believed it was 9 o'clock. She did not see or talk to anyone. She did not see any children and the account she said given by the prosecution was a fabrication.
14. The appellant's husband, Mr Valentine, said that on 9th July they were going shopping. He picked his wife up before 8.30 and they returned at about 1600 hours in the afternoon.
15. All that said on the facts, the point that arises upon this appeal turns upon the drafting of count 2 of the indictment and the proper construction of the relevant provisions of the Crime and Disorder Act 1998 and of the Public Order Act 1986.
16. As originally preferred count 2 of the indictment read as follows. We refer only to the "PARTICULARS OF OFFENCE":

"TONI VALENTINE on the 9th day of July 2015, with intent to cause Daisy Moloney harassment, alarm or distress, used threatening, abusive or insulting words or behaviour or disorderly behaviour, thereby causing Daisy Moloney or another person harassment, alarm or distress and at the time of doing so, or immediately before doing so, or after doing so, demonstrated towards Daisy Moloney hostility based upon her membership or presumed membership of a particular racial group, namely African."

17. It appears that the form of the indictment caused the judge concern and as a result of discussion between him and counsel, after conclusion of the evidence and before speeches, the Crown applied to amend count 2, so as to read as follows. (Before reading it we would say there is considerable difficulty in deciphering the manuscript amendment made to the indictment. For the purposes of the future we would hope that where important amendments are made to a document such as an indictment, they are done so with clarity.) We proceed to the "amended count", again the "PARTICULARS OF OFFENCE" only:

"TONI VALENTINE on the 9th day of July 2015, with intent to cause the son of Daisy Moloney harassment, alarm or distress, used threatening, abusive or insulting words or behaviour or disorderly behaviour, thereby causing that boy, or Daisy Moloney harassment, alarm or distress and at the time of doing so, or immediately before doing so, or after doing so, demonstrated towards that boy hostility based on his membership or presumed membership of a particular racial group, namely African."

18. Mr Sutton, who appears for the Crown, has helpfully explained that the rather strange use of the words "that boy" emerged because by the time the amendment had to be made Ms Moloney had left court and she had not named the son in the course of her evidence and his precise name was unknown.
19. The judge allowed an amendment in that form.
20. It is submitted in the grounds of appeal that the judge was wrong to do so so late in the case, a point not particularly strongly pursued by Mr Shephard, for the appellant today, and it is submitted that the conviction on count 2 is unsafe for rather different reasons. It is further argued that by reason of the flaw in relation to count 2 the conviction on count 1 is also unsafe for a reason to which we shall return.
21. In support of the appeal Mr Shephard, in more closely reasoned grounds presented in the skeleton argument, submits that the "victim" for the purpose of section 28 of the 1998 Act in the present case was Ms Moloney, the mother, as she was the person who presented evidence of distress for the purposes of section 4A of the Public Order Act, the basic offence from which the aggravated offence derives. It is said that the judge erred in presenting the child to the jury as the "victim" for the purposes of section 28.
22. Before examining how the jury was directed it is necessary to concentrate upon the wording of the statutory provisions and the offence in count 2 as finally indicted. The offence charged was an offence under section 31(1)(b) of the 1998 Act. That provides as follows:

"(1) A person is guilty of an offence if he commits-

...

(b) an offence under section 4A of that Act (intentional harassment, alarm or distress)... which is racially or religiously aggravated for the purposes of this section."

23. We return shortly to the question of racial aggravation. However, the starting point seems logically to be section 4A of the 1986 Act, creating the basic offence of intentional harassment or distress, to which the question of racial aggravation has to be considered later.
24. Section 4A of the 1986 Act provides in its material parts as follows:

"(1) A person is guilty of an offence if, with intent to cause a person harassment, alarm or distress he-

(a) uses threatening, abusive or insulting words or behaviour, or disorderly behaviour...

thereby causing that or another person harassment, alarm or distress."

25. The offence becomes racially aggravated if the provisions of section 28(1) of the 1988 Act are satisfied. That section is in these terms so far as material:

"(1) An offence is racially or religiously aggravated for the purposes of sections 29 to 32 below if-

(a)at the time of committing the offence, or immediately before or after doing so, the offender demonstrates towards the victim of the offence hostility based on the victim's membership (or presumed membership) of a racial or religious group; or

(b) the offence is motivated (wholly or partly) by hostility towards members of a racial or religious group based on their membership of that group."

26. In the initial grounds of appeal Mr Shephard argued that the amendment to count 2 should not have been allowed because the original version already charged the offence by reference to section 28(1)(b) rather than to section 28(1)(a) and that the amendment was therefore unnecessary. As we say, that ground has not been amplified before us today but we return to it briefly hereafter.
27. Be all that as it may, it seems best to examine the nature of the evidence to see what was alleged by the Crown and to assess whether that evidence disclosed an offence under the statutory provision in the terms finally indicted. Then we can look at the judge's direction and, in the context overall, we can consider the question of whether the judge erred in his discretion in permitting the amendment, and the safety of the conviction in the round.
28. It seems clear from the jury's verdicts that they accepted the evidence of the Crown witnesses and rejected the factual account given by the appellant. The evidence on count 2, expanding a little on the summary given above, was recorded in the summing-up in the following terms, starting at page 10E of the transcript of the judge's summing-up where he said this:

"'The following week,' she told us, [Ms Moloney] 'I was taking my son to school and we were walking and I was pushing my daughter and I noticed Mrs Valentine. She was standing by the small pond near us and she started to walk towards me and swearing again and was saying, 'Fuck off. Fuck you'. And her manner was very angry and she was walking towards me and she took off her sunglasses and she had a very angry face and eyes. I said--- My son said, 'Mummy, why's she looking at you like that?' and Mrs Valentine said to my son, 'Shut up, you nigger'. My son is mixed-race. He's brown. And it was said to my son.

'Well I carried on taking my son to school and she was walking behind me. And then I phoned the Police. I was very embarrassed the first time. But the second time'...'but the second time, it was even worse, and, as a result, I stopped taking my son to school for a while."

29. It seems to us that the evidence was of an aggressive comment to Ms Moloney's son by which, said Ms Moloney, he was distressed. It was for the jury to assess, as the judge left to them, whether the words were spoken "with intent to cause harassment, alarm or distress to a person".
30. For the purpose of establishing racial aggravation, the evidence, as it seems to us, was capable of establishing either hostility towards the son based upon his membership of a racial group or that the offence motivated towards members of a racial group based upon membership of that group. The latter formulation would indeed bring the case within section 28(1)(b).
31. However, in our judgment, that latter form of the offence was not indicted, either in the original count 2 or in its amended form. The original version of count 2 identified Ms Moloney as the person to whom hostility was demonstrated. In the amended form the hostility alleged was towards the son.
32. Mr Shephard's main point is that the son was not "the victim" of the basic offence under section 4A that was alleged in count 2. The victim, for these purposes, was Ms Moloney, to whom the distress established by the evidence was caused. The judge in summing-up expressly left out of account any element of distress to the son for these purposes because as he said at page 7D-E of the transcript:

"... there is no evidence as to what effect (if any) those words had on the child... "

A little higher up the page, at between 7B and C, the judge said this to the jury:

"On Count 2, they are saying that the words were addressed to the child, and we have no idea what effect (if any) they had on the child. Perhaps he had never heard the word 'nigger' before, perhaps he just thought 'I don't know what she's talking about'. But that doesn't matter, because the Act provides that it is the effect on 'the person to whom the words are addressed or another.'"

33. On this count therefore it is argued that there was no hostility on racial grounds showed to Ms Moloney, who must be the true victim for the purposes of the basic offence and thus the victim for the purposes of section 28(1) as well but only to the son.
34. This distinction seems never to have been identified in argument at the trial and no point seems to ever have been directed to identifying who was the victim for the purposes of section 28 for the judge to direct the jury appropriately. Obviously this is most unfortunate. The judge's direction on racial aggravation on count 2 was short indeed. It was in these terms (page 7H):

"We then again go to the racially aggravated point: are you sure that at the time of speaking those words, or immediately before, or after doing so -- and the words, of course are 'Shut up, nigger' -- she was demonstrating towards the boy hostility based on his membership, or presumed membership, of a racial or religious group (namely African)?"

35. In our judgment, Mr Shephard's basic point is right. The victim for the purposes of section 28 must be the victim of the underlying offence under section 4A. In this case, the Crown case, as summed-up by the judge in the passages to which we have referred, excluded any possibility of the victim of that offence being the son because no case of distress to the son was made out on the evidence. The point was never identified and the judge proceeded to direct the jury on racial aggravation in terms to which we have just alluded referring to that aggravation being towards the son, who was not the victim of the basic offence.
36. For this reason, compounded by the late amendment to the indictment, which could hardly have been calculated to instil clarity into the proceedings, we have reached the conclusion that the conviction on count 2 is indeed unsafe and must be quashed.
37. However, we are quite satisfied, and Mr Shephard accepts, that on the facts that we have summarised and the findings of the jury it is appropriate for this court to exercise its power under section 3 of the Criminal Appeal Act 1968 and to substitute a conviction for the offence of intentional harassment, alarm or distress under section 4A of the 1986 Act but without the feature of aggravation under the later statute.
38. Mr Shephard argues that if that indeed is our result that count 1 is unsafe because, as he argues, when count 2 goes the result is that the jury had before them evidence of bad character in the case which had not been subject of a proper application under the Criminal Justice Act 2003 for its admission into evidence on count 1. We unhesitatingly reject that argument. The evidence adduced on count 2 was evidence relating to an offence on the indictment. Clearly the offences were properly joined and tried out. There is absolutely no prejudice to anyone in that. There can be no doubt that the jury believed the Crown's evidence on count 2 but the charge, as it ultimately turned out, could not be sustained in law on the evidence that emerged. There can be nothing wrong in that process. Even if this was technically evidence of bad character, notwithstanding section 98 of the 2003 Act, we do not accept that the distinct and separate evidence on count 1 was tainted or that the conviction on that count is rendered unsafe. It may well also have been that a proper application could have been made under section 101 of the 2003 Act.
39. As the Crown submit the jury were directed to give separate consideration to each count and the evidence on each was clearly distinguishable. Accordingly, we dismiss the appeal so far as it relates to count 1.
40. Thus, we allow the appeal to the limited extent of quashing the conviction on count 2 and substituting for it a conviction for the basic offence under section 4A of the 1986 Act. The appeal against conviction on count 1 is dismissed but we will hear Mr Shephard on any question of sentence and indeed Mr Sutton.
41. MR SUTTON: Can I just add for the record that the wording of the count did not arise from my submission to the court.
42. LORD JUSTICE McCOMBE: It was a composition from the Bench, was it Mr Sutton; is that what you are trying to tell us?
43. MR SUTTON: I think my learned friend in his submissions has referred to an e-mail that I sent to the judge the night before.
44. LORD JUSTICE McCOMBE: All right. You have saved your dignity in that respect.
(Submissions re-sentence)
45. LORD JUSTICE McCOMBE: For reasons that we have given in the judgment that has just been delivered, the offences of which this appellant now stands convicted are one basic offence under section 4A of the 1986 Act and one aggravated offence, contrary to section 31(1)(b) of the 1998 Act. That is a lesser pattern of offending than that for which this appellant fell to be sentenced at the Crown Court. At the Crown Court she was sentenced, quite properly in the light of the convictions, to a 12 month community order with conditions of residence and a 4 month curfew. In our judgment, the appropriate manner in which to give effect to the judgment of this court in relation to conviction is to substitute a sentence of 9 months community order on each count concurrent and reducing the sentence from that which was imposed below.