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
		28th April 2006

1. LORD JUSTICE KEENE: This is an appeal by way of case stated from a decision of District Judge Black sitting at Tower Bridge Magistrates' Court on 30th March 2005. By that decision the judge convicted the appellant, Selena Taylor, of an offence of the use of threatening, abusive and insulting words or behaviour contrary to section 5(1)(a) of the Public Order Act 1986 ("the 1986 Act") which was racially aggravated, contrary to section 31(1)(c) of the Crime and Disorder Act 1998. The appellant was ordered to pay a fine of £100.
2. The facts as set out in the case can be briefly put. In the early hours of 2nd December 2004 two police officers attended an address in Walworth, South East London, after a call for assistance from the ambulance service. Mr Hazel answered the door and the officers entered. According to PC Duly the appellant was shouting that she had been assaulted. Mr Hazel appeared to be intimidated by the defendant and asked the police to remove her from the premises. The appellant's breath smelt of alcohol. On her way out of the premises, when the ambulance crew were still present, she continued to shout and swear, including the words "he had a fucking nigger here, fucking her." She was warned about her language and replied: "I don't care. That is how I call them." She tried to gain as much attention from the neighbours as possible and continued to shout, scream and swear. The officer said that he then heard the appellant shout: "that fucking coon bitch, fucking police." There was evidence that the street was very quiet at the time and that lights were turned on in the homes of the neighbourhood.
3. The appellant had in her evidence denied using any racist language but said that she told the police officers to fuck off after they insulted her. The District Judge found "as a fact" that she did use such language. He found that she shouted things like "fucking nigger" and "fucking coon bitch", along with a good deal of other bad language. He says in the case stated:

"That I found was racially aggravated. The words are undoubtedly abusive. Anybody hearing that sort of language, black or white, would be likely to be caused distress. I had a fair idea that drink played a large part in this. I found the racially aggravated case proved."

The District Judge states later in the case, in the final paragraph, that he was of the opinion that two policemen, an ambulance crew, Mr Hazel and several neighbours were near enough to hear this racially abusive language and "that anybody hearing that sort of language, black or white, would be likely to be caused distress thereby."

4. It is submitted on behalf of the appellant that those last matters described by the District Judge as being "his opinion" were not findings of fact and were not expressed in open court at the time. Mr Rudolph, who appears on behalf of the appellant, has argued that the District Judge in that part of the case has gone beyond what he said at the time as recorded in a note sent to the appellant's solicitors when they were seeking to have a case stated. The note recorded what I have earlier said the District Judge found as facts. In particular, it is emphasised on behalf of the appellant that those findings of fact do not record that anyone heard the appellant use the words complained of. It is accepted that PC Duly did, since he, after all, gave evidence that the appellant said them. He must have done, but there was no finding that the other police constable, PC Sue, heard the words or that the ambulance crew, Mr Hazel, or several neighbours heard or were near enough to hear the racially abusive language. In reliance on the decision in Evans v DPP [2001] EWCH 369 (Admin), Mr Rudolph describes the District Judge's "opinion" in that final paragraph as a gloss on the reasons for the decision.
5. For my part, though I see some limited force in this argument, I do not believe that it can succeed. The evidence as recorded in the case was that, first, the ambulance men were still present when the appellant was on her way out of the premises and was continuing to shout racist language. This was not denied by the appellant's evidence as recorded in the case stated. Clearly, the ambulance crew were able to hear her words. Secondly, the evidence was that she was trying to gain attention from the neighbours and was succeeding. This was a quiet street. Lights were being turned on in the houses in the neighbourhood. None of that evidence again seems to have been disputed. While I accept that it would have been better if the District Judge had spelt out his findings of fact in greater detail, it seems to me that his statement about who was near enough to hear the racial abuse was inherent in the earlier part of the case, at least as far as PC Duly, the ambulance crew and several neighbours were concerned.
6. The issues then raised relate both to the offence under section 5 of the 1986 Act and to its racially aggravated form under the 1998 Act. Section 5(1)(a) of the 1986 Act makes it an offence to use.

"threatening, abusive or insulting words or behaviour or disorderly behaviour ... within the hearing or sight of a person likely to be caused harassment, alarm or distress thereby."

Section 5(2) provides, in effect, that no offence is committed where the words or behaviour are used by a person inside a dwelling and the other person who hears or sees it is also inside that or another dwelling.

7. It is first submitted by Mr Rudolph that it is not enough for there to be a finding that others are "near enough to hear." It must be found that someone did actually hear if this offence is to be proved, insofar as it is based upon the words "within the hearing of". For that proposition reliance is placed on the judgment of Silber J in Holloway v DPP [2004] EWHC 2621 (Admin), a case dealing with the words "within the sight of a person" in section 5. Silber J there said at paragraph 17:

"These words mean that some person must have actually seen the abusive or insulting words or behaviour. It is not enough that somebody merely might have seen or could possibly have seen that behaviour."

A somewhat different approach was adopted in that case by the other member of the court, Collins J, certainly insofar as the first part of the quotation from Silber J is concerned. Collins J emphasised the fact there was an express finding by the deputy District Judge in that case that no one saw the appellant whilst he was behaving in an insulting way. Collins J stated at paragraphs 28 and 29 of the decision as follows:

"The question then is what is meant by the words 'within the hearing or sight' of a person. I entirely agree that it is not sufficient to establish that someone might have come on the scene and therefore might have seen what the individual who is charged was doing. I assume, in what I say now, that whatever he was doing was threatening, abusive or insulting within the meaning of the section.

29. What, in my view, is required is that there is at least evidence that there was someone who could see, or could hear, at the material time, what the individual was doing. There is, in my judgment, on the facts of this case, a clear distinction to be drawn between what might have happened if someone had come on the scene and what in fact did happen."

Collins J went on to add at paragraph 32:

"It may be that what I am saying goes to the evidence which has to be called in order to establish this offence because I do not believe it to be necessary that the prosecution call a person or persons who can say that they did see what was happening. The evidence must be sufficient, so that the court can draw the inference, having regard to the criminal standard, that what he was doing was visible to or audible to people who were in the vicinity at the relevant time. Provided that is established this offence can be made out."

Insofar as there is any difference between the two approaches in the case of Holloway, Mr Rudolph submits that Silber J's approach is to be preferred. The phrase "within the hearing" means that the prosecution must establish that someone actually heard the words in question. The prosecution must normally call that person, although Mr Rudolph accepts that that might not be required in every case. He acknowledges that there may be cases where there is other evidence that the victim heard and was caused harassment, alarm or distress by the words in question. But he argues that there is no evidence here that anyone, apart from PC Duly, actually heard the words. If that is right, then one is left, it is said, with only PC Duly when one comes to consider the test as set out in the remaining part of the subsection.

8. Mr Rudolph then goes on to argue as a consequence that there is no finding that PC Duly was likely to be caused distress. The District Judge's finding was simply that "anybody hearing that sort of language, black or white, would be likely to be caused distress." It is submitted that that sort of finding is not enough. It is argued that the issue is not whether a reasonable person would be likely to be caused distress, but whether the individuals who heard the words in question were themselves likely to be caused distress or harassment or alarm. It is, says Mr Rudolph, impermissible to wrap police officers up in the all embracing word "anybody". There should have been a specific fact finding exercise and no such exercise was conducted here. It is accepted that linguistically the word "anybody" could be seen to embrace PC Duly and patently he was the person who heard the words, but it is said that the judge did not specifically address this. Nor was there evidence that PC Duly was likely to be caused distress by those words. He is a police officer. Whilst police officers may qualify as a matter of fact as a person likely to be caused distress, the District Judge here made no such finding.
9. I do not find this line of argument persuasive. The conflict between the two members of the divisional court in the Holloway case, such as it is, comes down to a question of what evidence the prosecution is required to call to prove the offence. The wording of the subsection is "within the hearing or sight of a person". It seems to me that Collins J was right in saying that there must be evidence that there was someone able to hear or see the defendant's conduct, and that the prosecution does not have to call evidence that he or she did actually hear the words spoken or see the behaviour. In practice, the distinction between the tests formulated by the two judges in Holloway is likely to be a very fine way. Holloway was a case where there was an express finding that no one actually saw the behaviour. Both judges rightly stressed that it was not enough that someone might come on the scene and observe what was going on. In the present case the District Judge arrived at what I regard as a finding that a number of people were on the scene and were near enough to hear the racially abusive language. That seems to me to equate with being able to hear and to fall within the words "within the hearing of" in the subsection.
10. If that is so, then the allied point about who was likely to be caused harassment, alarm or distress falls away. But although the District Judge dealt with this in a somewhat sweeping manner, his reference to "anybody" who heard the language being likely to be caused distress thereby must be taken to include PC Duly, who undoubtedly heard the words. I entirely accept that this is a question of fact. I see no reason why the District Judge, who heard the officer give evidence and saw him, should not have so concluded. The case does not turn on that because I do not accept that it was only PC Duly within whose hearing the words were used. If it did, I would regard it as open to the judge to arrive properly at the conclusion that PC Duly was such a person.
11. For my part, therefore, I would reject the appellant's arguments about the basic section 5 offence.
12. I turn to the issue raised about the element of racial aggravation. This requires a consideration of the relevant provisions of the Crime and Disorder Act 1998. Section 31 (1) of that Act makes it an offence under that section to commit an offence under section 4, 4A or 5 of the 1986 Act which is racially or religiously aggravated. More serious penalties are then available than for the unaggravated offence. Section 28(1) of the Crime and Disorder Act 1998 provides the most relevant part of the definition of the phrase "racially aggravated" for present purposes. It reads as follows:

"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."

One also needs to note section 31(7) of the 1998 Act which states:

"For the purposes of subsection (1)(c) above, section 28 (1)(a) above shall have effect as if the person likely to be caused harassment, alarm or distress were the victim of the offence."

Subsection (1)(c) above is a reference to an offence under section 5 of the 1986 Act and so is relevant to the present case.

13. It will be seen that there are two ways in which one of the listed offences may be found to be racially aggravated. The first, arising from section 28(1)(a), is where, at the relevant time, the offender demonstrates hostility towards the victim of the offence based on that person's membership (actual or presumed) of a racial group. "Victim" in section 5 offences means the person likely to be caused harassment, alarm or distress. The second way is that provided for by section 28(1)(b). For this, the offence has to be motivated wholly or partly by hostility towards members of a racial group because of that membership. I shall call these two forms of racial aggravation the paragraphs (a) and (b) forms. As was made clear by May LJ in RG and LT v DPP [2004] EWHC 183 (Admin), paragraph (a) form is not concerned so much with the offender's state of mind but with what he did or said so as to demonstrate racial hostility towards the victim. In contrast, the paragraph (b) form is concerned with the offender's motivation, which necessarily involves considering his state of mind: See paragraphs 13 and 14 of the RG and LT case.
14. In the present case the District Judge did not make it clear which of the two forms of racial aggravation he found. He merely stated: "I found the racially aggravated case proved." Mr Rudolph submits that the appellant could not properly be convicted of a racially aggravated offence of the paragraph (a) form. There was no evidence that any of those who heard, or were even in a position to hear, and were likely to be caused distress, were persons towards whom the appellant demonstrated racial hostility. Indeed, there was no evidence that any of those referred to by the District Judge as being near enough to hear were even from the racial group referred to by the appellant's words. Certainly it seems that PC Duly was not.
15. On behalf of the respondent, Mr Spencer does not seek to argue that a conviction for the aggravated offence could be upheld on the basis of section 28(1)(a). I agree. The victim or victims in the section 5 offence were not persons to whom racial hostility was directed. There was no evidence to found a conviction on that basis. Indeed, I cannot believe that that was the approach being adopted by the District Judge here.
16. In respect of the paragraph (b) form of racial aggravation, it is contended on behalf of the appellant that there is no finding by the District Judge that the necessary motivation existed. Mr Rudolph accepts that one is not concerned under this head with any relationship between the victim and the racial element. But he submits that the District Judge failed to make findings which could support a paragraph (b) form of conviction of the aggravated offence. The only finding of relevance is that the judge had "a fair idea that drink played a large part" which, it is said, tends, if anything, to cast doubt on racial motivation. It is argued that racist language may be used casually or even in humour. It is also argued on behalf of the appellant that somebody who is a member of a racial group has to exist for there to be hostility towards him as a motivation within the sense used in paragraph (b).
17. For the respondent, it is submitted in the written skeleton that given the use of the words "fucking nigger" and "fucking coon bitch", it cannot sensibly be argued that such shouting was not motivated, at least in part, by hostility towards members of a racial group based on that membership. Section 28(1)(b) makes it clear that the offence need only be motivated partly by such racial hostility. That it is argued is what the District Judge was saying when he found that the shouting "was racially aggravated".
18. It seems to me that there can be little doubt that there was hostility on the part of the appellant towards a woman who was not present and who the appellant believed had been having sex with Mr Hazel. The language used makes that clear. Section 28(1)(b) refers to "hostility towards members of a racial group based on their membership of that group". That could well be interpreted as covering hostility in a general sense towards members of such a racial group; for example, hostility towards black people generally, irrespective of whether any such person features specifically in the case. It is unnecessary to decide that finally today because I am satisfied that hostility towards one member of a racial group is sufficient to qualify under paragraph (b) so long as it forms part of the motivation. According to the Interpretation Act 1978, section 6(c), "words in the plural include the singular" unless a contrary intention appears. There does not seem to be any contrary intention present here. Indeed, I go further. One would expect section 28(1) to cover a case where a person hearing the racial abuse is not themselves a member of that race but where the racial abuse is about an absent loved one, with the result that distress is caused to the person who hears the racial abuse. That seems to be something which one would have expected Parliament to have covered by the language of section 28(1). In that situation, it seems to me that not merely is there no contrary intention that words in the plural include the singular, but one would expect to include the singular in the present case.
19. There was a suggestion made in passing by Mr Rudolph that the woman being referred to in the language used by the appellant might not have existed and that there was no clear finding that she did. It does not appear to have been suggested in the course of the trial that she did not exist. For that reason one would not expect the judge to make an express finding of fact on that issue. It is implicit in the words used by the appellant that such a woman did exist.
20. It is right that there is no clear finding by the judge that the motivation for the appellant's conduct was her hostility towards the other woman based upon the latter's race, at least in part. Part of her motivation was anger arising from the belief of a sexual relationship. But, regrettable though it is that the judge made no explicit finding as to motivation, I have concluded that the use of phrases such as "fucking nigger" and "fucking coon bitch", patently not used in a jesting fashion, must, in the circumstances of this case, have led any judge to find that the section 5 offence was motivated, at least in part, by racial hostility as described in section 28(1)(b). For the reasons I have given, therefore, I would dismiss this appeal.
21. MR JUSTICE JACK: I agree. I would add that, in particular, I agree with what my Lord has said concerning the words "within the hearing or sight of a person" in section 5(1) of the Public Order Act 1986 and the judgments given in the case of Holloway. There is a distinction between something which it is established was said or done within the hearing or sight of a person and something which it is established the person in fact heard or saw. The draftsman of the section elected for the former. That choice seems to me to be consistent with the public order purpose of the section.
22. MR RUDOLPH: May I have the relevant taxation?
23. LORD JUSTICE KEENE: Of course you may. Is there any application on behalf of the DPP?
24. MR SPENCER: I would not normally ask for costs.
25. LORD JUSTICE KEENE: Very well, we shall make no order as to costs.
26. MR RUDOLPH: It does strike me that this court today has clarified, to put it at its highest, any tension that existed in Holloway. Your judgment at the end placed in stark terms the choices as to interpretation over that portion of the Act. Might I have a little time, perhaps seven days, to reflect on this, and to consider whether to send to the court a draft question to certify to their Lordships' House. Section 5 is an offence that is prosecuted up and down the country more often than any other.
27. LORD JUSTICE KEENE: You can have your seven days.