CO/4475/2004 
Neutral Citation Number: [2004] EWHC 3112 (Admin)
IN THE HIGH COURT OF JUSTICE 
QUEEN'S BENCH DIVISION  
DIVISIONAL COURT 
Royal Courts of Justice 
Strand
London WC2 

Tuesday, 21 December 2004
 
B E F O R E:

LORD JUSTICE TUCKEY 

MR JUSTICE FIELD 

- - - - - - -
PETER MARK PARRY
(CLAIMANT)

-v- 

DIRECTOR OF PUBLIC PROSECUTIONS
(DEFENDANT) 
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Computer-Aided Transcript of the Stenograph Notes of 
Smith Bernal Wordwave Limited
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- - - - - - - 
MRS C PORTER-PHILLIPS (instructed by CROSS & CO) appeared on behalf of the CLAIMANT
MISS A PRICE (instructed by CPS WREXHAM) appeared on behalf of the DEFENDANT
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J U D G M E N T 
 
1.	LORD JUSTICE TUCKEY:  I ask Mr Justice Field to give the first judgment in this case.
2.	LORD JUSTICE FIELD:  This is an appeal by way of case stated by Peter Mark Parry against the decision, on 9th June 2004, of HHJ Woodward sitting with two justices at Chester Crown Court, dismissing his appeal against conviction at Mold Magistrates' Court on 12th May 2004 for the offence of racially aggravated damage.
3.	The facts before the Crown Court were not in dispute.  Sometime before midnight on 24th January 2004, the appellant threw red nail varnish over the front door of his neighbour, Mrs McCleery.  At about midnight that same night, Mrs McCleery discovered the nail varnish on her door and called the police.  When the police arrived approximately 20 minutes later she told them that she believed the appellant was responsible, commenting that she and the appellant did not get on.  
4.	The police went next door and talked to the appellant.  PC Bailey asked him if he knew anything about the incident, to which he replied: 
"no, those Irish cunts have been stealing my son's trainers from the front door."  
5.	PC Bailey warned the appellant about his language, to which he replied. 
"I can say what I like about those IRA bastards in my own home." 
6.	The appellant was later arrested and interviewed.  In the course of the interview he admitted throwing nail varnish on his neighbours' door.  He said that he never got on with his neighbours and there had been a lot of falling out.  He stated that a few weeks previously he had had a pair of trainers stolen from the door step and, having bought a replacement pair, found the old pair back on the door step.  This had then happened a second time.  
7.	Asked about what he said to PC Bailey, the appellant denied that he had been racist, saying that it was only a figure of speech and was not meant to be offensive.  
8.	He was charged with racially aggravated criminal damage.  He accepted that he was guilty of criminal damage and we are told he pleaded guilty to that charge.  But he denied that the offence he committed was racially aggravated.  
9.	As I have said, he was convicted by the magistrates and his appeal to the Crown Court was dismissed.  The magistrates imposed a fine of £250 in respect of the aggravated offence and they imposed no separate penalty in respect of the non-aggravated offence of criminal damage.  
10.	Criminal damage is made an offence by section 1(1) of the Criminal Damage Act of 1971, which provides:
"A person who without lawful excuse destroys or damages any property belonging to another intending to destroy or damage any such property or being reckless as to whether any such property would be destroyed or damaged, shall be guilty of an offence."
11.	Section 30(1) and (3) and section 28(1) of the Crime and Disorder Act provide: 
30(1) "A person is guilty of an offence under this section if he commits an offence under section 1(1) of the Criminal Damage Act 1971 (destroying or damaging property belonging to another) which is racially or religiously aggravated for the purposes of this section.
30(3)"For the purposes of this, section 28(1)(a) above shall have effect as if the person to whom the property belongs or is treated as belonging for the purposes of that Act were the victim of the offence."
S.28(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."
12.	I need not read subsection (2), but I read subsections (3) and (4). 
S.28(3) "It is immaterial for the purposes of paragraph (a) or (b) in (1) above whether or not the offender's hostility is also based to any extent on any other factor not mentioned in that paragraph."
S.28(4) "In this section racial group means a group of persons defined by reference to race, colour, nationality, including citizenship or ethnic or national origins."  
13.	The prosecution's case was that the words said to PC Bailey -- - "those Irish cunts have been stealing my son's trainers ... I can say what I like about those IRA bastards in my own home" -- amounted to a demonstration of hostility towards the McCleery family based on their membership or presumed membership of a racial group, namely people of Irish decent, immediately after committing the substantive offence of criminal damage.
14.	It was argued on the appellant's behalf before the Crown Court that the word "immediately" in section 28 (1) applied to both of the words "before" and "after" and that the statement made to PC Bailey was not made immediately after committing the criminal damage because this did not happen until at least 20 minutes had elapsed since the door was damaged.  
15.	It was also submitted that, since the statement had been made by the appellant in his home, in answers to questions from the police, it did not amount to a demonstration of hostility towards the victim.
16.	The Crown Court rejected these submissions.  They held that on the true construction of section 28 (1) it is not necessary that hostility demonstrated after the offence needs to have occurred immediately after the offence, but found, in any event, that the statement made to PC Bailey was made immediately after the offence was committed.  
17.	The Crown Court also held that the comments made to the constable demonstrated hostility to the complainants based on their presumed membership of a racial group.  
18.	The short question raised on this appeal is whether the Crown Court erred in law in holding as they did.  
19.	For my part, I have no doubt that the word "immediately" qualifies both "before" and "after" in section 28 (1).  These words must be given their plain and ordinary meaning and so construed their effect is to make the subsection strike at words uttered or acts done in the immediate context of the substantive offence.  
20.	With respect to HHJ Woodward and the justices, their construction of section 28 (1) was wrong and their finding that the statement made to PC Bailey was, in any event, made immediately after the commission of the offence, was a finding that was not open to them.
21.	No Crown Court properly directing itself as to the meaning and effect of section 28(1) could reasonably have made this finding.  The statement was not made in the immediate context of the substantive offence, but was made by the appellant after he had quit the scene and was sitting in his own house, at least 20 minutes after the door had been damaged.  
22.	Mrs Porter-Phillips for the appellant advanced an alternative submission to the effect that under section 28(1) the victim must be in the presence of the offender at the time the offender does the acts or utters the words alleged to be a demonstration of hostility towards the victim.
23.	I reject this submission.  In my view, hostility can be demonstrated towards the victim even if the victim is absent, so long as the demonstration of hostility occurs in the immediate context of the offence.
24.	Thus suppose a confrontation between an offender and a victim on the victim's doorstep, during which the offender damages the victim's door.  The victim immediately goes into his house and shuts the door and straight away thereafter the offender shouts racial abuse directed at the victim, but which the victim does not hear.
25.	In my judgment, the fact that the victim was not present when the racial abuse was uttered and did not hear it, would not prevent that abuse from amounting to a demonstration of racial hostility towards the victim immediately after the commission of the offence.
26.	For the reasons I have given, I would quash the decision of the Crown Court dismissing the appellant's appeal and I would quash, too, the conviction in the Magistrates' Court on the aggravated criminal damage charge.
27.	It will be for the prosecution to take such steps as they consider are open to them to invite the magistrates to reconsider the penalty that was imposed in respect of the non-aggravated offence.
28.	The questions stated by the Crown Court are these:
"(1) Under construction of section 28(1)(a) of the Crime and Disorder Act 1998 is the requirement that hostility demonstrated towards the victim must be done at the time of the offence or immediately before or immediately after the offence was committed?  
"(2) If the Act requires such hostility to be demonstrated immediately after the offence was committed, whether in the absence of knowing what time the offence was committed, where a period of at least 20 minutes lapses between the offence being reported and the hostility, does that hostility fall within the requirement of "immediately after"?  
"(3) Where an offence is reported and subsequently investigated and during that investigation hostile comments are made whilst not under caution, is it right that those comments can form the basis of the investigated offence to be charged as a racially aggravated offence?  
"(4) Whether hostility can be demonstrated towards the victim when done so in answering questions to a police officer?  
"(5) Whether hostility be demonstrated toward a victim in the victim's absence, and in the privacy of the defendant's own home? 
"(6) Whether the court were entitled and or correct in law on the agreed facts to find the offence of racially aggravated criminal damage under section 28(1)(a) of the Crime and Disorder Act 1998 made out?"
29.	In the light of my reasons for allowing the appeal, and having regard to the way the questions are stated, I decline to answer the questions save for the first and the sixth questions, to which I would answer, in respect of the first, "yes", and in respect of the sixth, "no".
30.	LORD JUSTICE TUCKEY:  I agree.  
31.	Thank you both very much.  We will ensure that the transcript of the judgment shows that this was an appeal from the Chester Crown Court rather than the Colchester Crown Court since you both probably have come from Chester, and perhaps even yesterday, I am sure you will want that made clear.