England and Wales High Court (Administrative Court) Decisions

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

		Royal Courts of Justice The Strand London WC2A 2LL
		7 February 2008

Thursday 7 February 2008

LORD JUSTICE MOSES:

1. This is an appeal by way of case stated which raises a question as to the meaning of section 28(1)(b) of the Crime and Disorder Act 1998, in particular as to whether the choice of racially abusive words in the circumstances of this case is sufficient evidence to show that the reason why the offence was committed is at least in part hostility towards a racial group.
2. That question arises by virtue of an adjudication of the Magistrates' Court sitting at Stockport in relation to their decision of 1 March 2007. It is somewhat dispiriting to observe that the facts they found related to an alleged offence on 13 December 2005. The respondent, Richard Howard, was charged with using 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, and, in addition, that the offence was racially aggravated in accordance with section 28 of the Crime and Disorder Act 1998 and contrary to section 5 of the Public Order Act 1986, and sections 31(1)(c) and 5 of the Crime and Disorder Act 1998.
3. The magistrates found as facts that on the early evening of Saturday June 2005 Paul Hughes and his partner, Barbara Platt, were in the back garden with friends and two young children at their house in Audenshaw. Unfortunately, next door was the respondent. He lived there with his parents and siblings.
4. The two victims of the respondent's behaviour, as found by the magistrates, were off-duty serving police constables. Whilst in the garden the respondent chanted the following words:

"I'd rather be a Paki, I'd rather be a Paki, I'd rather be a Paki than a Cop."

We note that this was not the first time that Paul Hughes and Barbara Platt had been subjected to insults by virtue of their calling. There was evidence before the magistrates that six months previously, on 8 January 2005, the respondent had used such behaviour towards Paul Hughes, contrary to section 5 of the Public Order Act 1986.

5. At the close of the prosecution case the question arose as to whether the requirements of the relevant statutory provisions were satisfied. The question, it is trite to observe, for the magistrates at that stage was whether, if no further evidence were to be called, they could reasonably, directing themselves properly as to the law, convict a defendant of the offence charged.
6. That offence is identified in the combination of the statutory provisions to which I have already referred. Section 28 of the Crime and Disorder Act 1998, so far as relevant, provides:

"(1) An offence is racially .... 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 .... group; or

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

Pausing there, there is no question in this case of the requirements identified in section 28(1)(a) being satisfied, since there was no suggestion that either of the two victims of this abuse were members of a racial group. The prosecution turned on being able to establish the requirements of section 28(1)(b).

7. The statutory question asked by section 28(1)(b) is whether the offence is motivated wholly or partly by hostility towards members of a racial group based on their membership of that group. In order to answer the question, it is necessary to identify the offence, the motive for which is said to fall within section 28(1)(b). The offence in question was alleged to be under section 5 of the Public Order Act 1986 which, so far as relevant, provides:

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

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

....

within the hearing .... of a person likely to be caused harassment, alarm or distress thereby."

Thus the statutory quest for the magistrates in this case was whether there was evidence upon which they could conclude at the close of the prosecution case that, at least in part, the reason why the respondent shouted out those words to the distress and annoyance of the two victims on the other side of the fence was his hostility towards Pakistanis as members of a racial group. The question for the magistrates was not whether they were sure that that offence had been committed, but whether the evidence was such that it was reasonably capable of being an offence. The magistrates reached the conclusion that there was not sufficient evidence upon which they could be satisfied that the requirements of section 28 had been made out. They took the view that there was insufficient evidence to establish (even in part) that the reason why those words were shouted was hostility towards members of the Pakistani race. They concluded at paragraph 8 of the Case Stated as follows:

"(b) We were of the opinion that the hostility alleged must be motivated by hostility towards members of a racial group. We did not find in this case that the respondent's actions were either wholly or partly motivated by hostility towards a racial group ....

(c) We were of the opinion that the hostility was wholly motivated by the respondent's intense dislike of Paul Hughes and Barbara Platt and not his hostility towards either police officers of Pakistani people. The appellant, in prosecuting the case, had submitted that the words should be viewed in the context of the respondent's previous conviction contrary to section 5 of the Public Order Act 1986, in which Paul Hughes was the victim. This further suggested to us that the respondent was motivated by his dislike of Paul Hughes as opposed to having a racial element."

8. Counsel for the Director of Public Prosecutions, Miss Fitzpatrick, in clear and helpful submissions (both in writing and orally before us today) has submitted that, in reaching that conclusion, the justices erred. To some extent she is right. The question for them at the close of the prosecution case was not what they found to be the motivation for the offence, but was whether a reasonable magistrate properly directing himself as to the law could conclude that there was (at least in part) racial hostility as a motivation for the offence. But their case stated is plainly to be understood as reaching the conclusion that no magistrates properly directing themselves could have reached the view that the requirements of section 28 were satisfied.
9. Miss Fitzpatrick contends that the choice of the words used to insult the next door neighbours, "I'd rather be a Paki than a Cop" does show racial hostility to members of the Pakistani race since it seems to be suggesting that a police officer is even worse than someone who is not worthy of respect. That may be so. The choice of particular words of insult may indeed demonstrate hostility towards a racial group. The choice of such words may indeed demonstrate that the motivation for the offence is in part hostility towards a racial group. There is no shortage of examples of such cases. The shouting of a racially abusive chant in a public place, be it a football ground or anywhere else, if it is itself an offence, may indeed, by the choice of words used in that chant, show racial hostility towards a group. The case of DPP v Stoke-on-Trent Magistrates' Court [2003] EWHC 1593 is an example of that. To that extent I would for my part agree with everything Miss Fitzpatrick has said. Nor is there any need for the victim of the offence under section 5, if aggravated by section 28, himself or herself to be a member of the racial group in respect of which hostility is exhibited. That is plain from the words of the statute, particularly the contrast between section 28(1)(a) and section 28(1)(b). No authority is needed for that proposition, although it can be found in DPP v Powell (3 February 2000) at paragraph 14-16.
10. The problem from the point of view of the Director of Public Prosecutions in the instant case is the abundance of evidence that the sole motivation for shouting these repellent remarks was hostility towards the two off-duty police officers. Certainly the justices were entitled to find at the close of the prosecution case that no reasonable magistrate considering the evidence they had heard could conclude that the offence was committed other than by the hostility towards the particular victims in the instant case. One need look no further for confirmation than the previous conviction but a few months before for a similar offence.
11. In those circumstances it seems plain to me that the justices were entitled to reach the conclusion that they did. Miss Fitzpatrick faintly argued that they had said something different in giving their written reasons. Of course, as one would expect, the reasons given in the amplification by virtue of the statement of a case were more full, but they were certainly not inconsistent.
12. I would dismiss the appeal. But I cannot forebear from commenting before concluding how unnecessary it was for the Director of Public Prosecutions to advance this case, which was clearly serious from the point of view of the victims, particularly since it was the second time that it appears to have occurred. It was unnecessary to deploy the provisions of section 28(1) to attempt to stamp out this sort of behaviour. The words of section 28 are carefully drafted. They require focus upon the motivation for the particular offence in question. In those circumstances the prosecutors should be careful not to deploy them where offensive words have been used, but in themselves have not in any way been the motivation for the particular offence with which a defendant is charged. It diminishes the gravity of this offence to use it in circumstances where it is unnecessary to do so and where plainly it cannot be proved.
13. The justices posed the following questions for this court:

"1. Was the offence committed when the hostility alleged was motivated by a factor other than as identified in section 28(1)(b) of the Crime and Disorder Act 1998 but the words used included racially offensive language?"

For the reasons given I would answer that question "No". The use of racially offensive language may in the circumstances provide evidence of the offence, but if it was not in any way the motivation for that offence then there can be no conviction pursuant to section 28(1)(b).

14. Question 2 was not controversial. It reads:

"Does section 28(1)(b) require that somebody who is a member of a racial group has to be identifiable for there to be hostility towards him as motivation within the sense used in paragraph (b) ...?"

I would answer that question "No, look at the words of the statute".

".... or is it sufficient for there to be hostility in a general sense towards members of such racial group?"

I would answer that question "Yes, look at the words of the statute". For those reasons I would dismiss this appeal.

MR JUSTICE SULLIVAN: I agree.

MR VARDON: My Lord, can I mention the question of costs? As your Lordship has observed, it was unnecessary to bring this case --

LORD JUSTICE MOSES: You are asking for your costs?

MR VARDON: I am, yes.

LORD JUSTICE MOSES: From central funds?

MR VARDON: From the Director.

LORD JUSTICE MOSES: What do you say about costs?

MISS FITZPATRICK: I submit that my learned friend should be entitled to costs, but that his costs should come from central funds.

LORD JUSTICE MOSES: What provision is that? How do we determine between the two?

MISS FITZPATRICK: (Pause)

LORD JUSTICE MOSES: We will order costs against the DPP. It is one fund rather than another. Thank you very much.

MR VARDON: I am grateful. Thank you very much.