England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT

		Royal Courts of Justice Strand London WC2
		16th June 2003

Monday, 16th June 2003

1. LORD JUSTICE AULD: This is an appeal by the Director of Public Prosecutions by way of case stated against an acquittal by the District Judge at Stoke on Trent on 28th January 2003 of Sean Ratcliffe on a charge of taking part at a designated football match in chanting of a racialist nature, contrary to section 3(1) and (5) of the Football (Offences) Act 1991. The first respondent has indicated that he does not intend to take any part in the proceedings, and Sean Ratcliffe, the second respondent, who has been duly served with them, does not appear.
2. On 12th October 2002, a designated football match took place between Port Vale and Oldham Athletic at the Port Vale football ground, Stoke on Trent in Staffordshire. Sean Ratcliffe, attended the match. At it, a number of persons were chanting: "you're just a town full of Pakis". The chant was directed at the Oldham Athletic supporters, who were in the adjacent section of the ground, known as Hamil Row. The evidence was that it was audible to those supporters.
3. On 26th October 2002, Ratcliffe was arrested for the offence. In interview, he admitted using the phrase at the football match on 12th October, along with many others. He was charged with the offence.
4. His trial took place before the District Judge on 28th January of this year, as I have said, at Stoke on Trent Magistrates' Court. Ratcliffe did not give evidence. On a submission that the words used were not of a racialist nature, he was acquitted at the close of the prosecution case.
5. The District Judge, in his case stated of 4th April 2003, set out the following facts:

"(a) On the 12th October 2002, at 4.10 pm Port Vale were playing a nationwide league game against Oldham Athletic at Vale Park, Burslem, Stoke on Trent.

(b) The defendant was present at the game as a paying spectator situated in the front eastern end of the area known as the Railway Stand.

(c) Certain of the spectators in that area, between 50-100 in number, began and continued to chant the words "you're just a town full of Pakis".

(d) Those words were audible to the supporters of Oldham Athletic who were situated in the adjacent Hamil Row end of Vale Park.

(e) There were no Pakistani, Asian or black persons in the crowd or on the playing field.

5. The defendant elected not to give evidence, but, in his police interview on October 26th 2002, he had agreed that he had used the . . . phrase.

6. The Prosecution . . . contended [that] the . . . phrase was uttered by the defendant was insulting and was therefore 'of a racialist nature' within the meaning of Section 3 of the Football (Offences) Act 1991.

7. The defendant contended and submitted that the phrases were not insulting [in that sense]".

6. The District Judge gave five reasons for his acquittal of Ratcliffe, namely:
7. 1. The phrase was "mere doggerel" and amounted to no more than aimlessly stating that "our town is better than your town".
8. 2. It contained no swearing or offensive language _per se_.
9. 3. The word "Paki" was no more insulting or racialist than the use of the words "Pom", "Brit", "Yank", "Aussie" or "Kiwi".
10. 4. The word "Paki" is not insulting, whereas "Frog" or "Kraut" could be termed insulting.
11. 5. The word "Paki" is no more than a shortened form of "Pakistani", which is an adjectival word meaning "of the Pakistan nation".
12. The question that the District Judge has posed for this court is in the following terms:

"Whether the evidence which was properly adduced before the learned judge entitled him to find that the chanting in which the Defendant was alleged to have taken part was not "of a racialist nature" as defined by section 3(2)(b) of the Football (Offences) Act 1991".

13. Chanting of a racialist nature at a designated football match is an offence under section 3(1) and (5) of the 1991 Act. The words "of a racialist nature" mean, as provided by section 3(2)(b), that the chant consists of or includes matter which is threatening, abusive or insulting to a person, by reason of his colour, race, nationality or ethnic or national origins.
14. I should note that it is immaterial for the purposes of the offence whether persons of the racial group referred to in the alleged offending words are present so as to hear them, or, if so present, are offended or affected in any way by them. The purpose of the Act is to discourage conduct of a racially insulting nature which could have that effect.
15. Mr Edward Coke, in his helpful submissions on behalf of the Director, has submitted that it is obvious that the use of the very word "Paki", certainly in this context, but more generally nowadays, is racialist in the sense defined by the Act.
16. As to the District Judge's description of it as "mere doggerel", Mr Coke submitted that, doggerel or no, the chant was intended to insult those coming from Oldham, whatever their origin, and that it was implicit in the chant that Oldham was inferior because of the nationality or ethnic or national origin of a number of its citizens. He said that the use of the word "Paki" in that context demonstrated that it was those of Pakistani origin who were implicitly the cause of the inferiority. The effect, submitted Coke, was that the chant was insulting within the meaning of the section.
17. He also challenged the District Judge's finding that the chanting contained no offensive language, taking as the starting point of his submissions a reference to the 5th edition of the Shorter Oxford English Dictionary, published in 2002, where the word "Paki" is defined as "slang which is racially offensive".
18. At to the comparison drawn by the District Judge between the word "Paki" and the words "Brit, "Aussie" or "Kiwi", Mr Coke submitted that, however it has come about historically, the normal usage of those words is not taken as being derogatory -- often the contrary -- and words like "Pom" or "Yank" may or may not be derogatory or complimentary, depending on the context.
19. "Paki", Mr Coke suggested, is more to be bracketed with the words "Frog" or "Kraut", which were also referred to by the District Judge in his case stated. It is wrong to suggest, he submitted, that the word "Paki" is nowadays merely the shortened form of "Pakistani".
20. If legal support is needed for those submissions, Mr Coke provided it by reference to three cases. Under the general submission that the word "Paki" has been recognised by the courts as something in the nature of racialist abuse, the first case to which he referred the court is R v Reader [2002] Cr App R (S) 442 CACD. It involved offences of wounding with intent to cause grievous bodily harm, contrary to section 18 of the Offences Against the Person Act 1861, and actual bodily harm, contrary to section 47 of that Act, and criminal damage. The words used in the course of the violence, the subject of those charges, were: "what are you doing standing up for a Paki?"
21. As Mr Coke observed, there was never any suggestion that the words were anything other than words of a racialist nature; and the Court of Appeal treated them, as the sentencing judge had done, as an aggravating factor.
22. The second case to which Mr Coke referred the court was R v Webb [2001] 1 Cr App R (S) 112, CACD. In that case, the words in question were: "Paki bastard". It was part of the prosecution case that the attack had been racially motivated when those words were used. Again, there was no suggestion before the court that the words were not of a racialist nature. Indeed, the matter was dealt with as a racially aggravated assault for that reason.
23. Third is the case of R v Salihu, an unreported decision of the Court of Appeal on 2nd March 2001, another case of racially aggravated assault in which the words "fucking Paki" and "Paki wanker" were treated by the court as racially aggravated.
24. On the strength of those submissions and those authorities, Mr Coke maintained that the word "Paki" is in itself a derogatory expression and a racialist one now, and certainly was in the context in which it was used in this case.
25. In my view, Mr Coke's submission is well founded. The 5th edition of the Shorter Oxford English Dictionary, in its definition in 2002 of the word "Paki" as a slang expression which is racially offensive reflects the modern, common understanding of the word; it is also, unfortunately, all too familiar an expression to the courts, used, as it so often is, as a prelude to violence, whether provoking or offering it.
26. There is no doubt that in most contexts the purpose of its use goes beyond a convenient and/or affectionate abbreviation of a description of a nationality, such as an Aussie or a Brit. It is odd and a shame that that is so in this country, but the unpleasant context in which it is so often used has left it with a derogatory or an insulting racialist connotation.
27. Of course, as Mr Coke submitted, the use of the word "Paki" must, on a case by case basis, be looked at in its context. Here, there can be no doubt on the facts found by the District Judge as set out in his case stated that Ratcliffe and his fellow Port Vale supporters, in using it as part of their chant against the opposing Oldham supporters, were using it in a racially derogatory or insulting sense. That is plain, if nothing else, from the presence of the word "just" in the chant: "you're just a town full of Pakis".
28. In my view, Ratcliffe's admitted behaviour fell squarely within the definition in the Act of chanting of a racialist nature at a designated football match and within the mischief at which the statutory provision was aimed. I would therefore, answer "No" to the question in the case stated, allow the Director's appeal and remit the case to the District Judge with a direction that he should on that evidence convict Ratcliffe of the offence.