Title: IN THE HIGH COURT OF JUSTICE CO/3715/99
Author: Smith Bernal
Last saved by: joe.ury

Neutral Citation Number: [2000] EWHC 1575 (QB)
Case No. CO/3715/99
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
(DIVISIONAL COURT)

Royal Courts of Justice
Strand
London WC2

Date: Thursday, 3rd February 2000

B e f o r e:

LORD JUSTICE SIMON BROWN

‑and‑

MR JUSTICE KLEVAN
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THE DIRECTOR OF PUBLIC PROSECUTIONS

‑and‑

ROSHAN KUMAR PAL

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MR J KIRK (instructed by the Crown Prosecution Service, Bedfordshire Branch, Luton LU1 3AJ) appeared on behalf of the Appellant.

MR R ANTHONY (instructed by Sharman & Trethewy Bedford MK40 1PF) appeared on behalf of the Respondent.
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J U D G M E N T

	Thursday, 3rd February 2000.
1.	LORD JUSTICE SIMON BROWN: This is the Director of Public Prosecutions’ appeal by way of Case Stated against the adjudication of the Bedfordshire Justices, sitting at Bedford on 21st July 1999, acquitting the Respondent of an offence of racially aggravated common assault contrary to section 29(1)(c) and 29(3) of the Crime and Disorder Act 1998. This is relatively new legislation. The point raised by the appeal is an interesting and not altogether easy one.
2.	First, however, the facts, which can be briefly told. The victim of the assault was Ian Roger Edmonds, a man in his 60s and of Asian appearance, a caretaker at the Cauldwell Community Centre. On 2nd February 1999, in accordance with his duties, he asked four youths (two white and two of Asian appearance), who were having a loud conversation on the back steps of the premises, to leave. They had no business at the community centre. Three of the youths left, but the Respondent, one of the two Asians, remained. He did so because he wished to “make a point”. He was aggrieved by Mr Edmonds’ request to leave the premises. Other people, he suggested, were often permitted to stay. He assaulted Mr Edmonds first by pushing him against an industrial bin. He called Mr Edmonds a “white man’s arse licker” and a “brown Englishman”. He then again assaulted Mr Edmonds,  kicking his right hip. Mr Edmonds did not retaliate. He again asked the Respondent to leave which this time he did.
3.	Next, let me set out the statutory provisions here in play. First, the material parts of section 29 of the 1998 Act and then section 28 in its entirety.
“29(1) A person is guilty of an offence under this section if he commits‑
...
(c)  common assault, which is racially aggravated for the purposes of this section.
...
(3) A person guilty of an offence falling within subsection (1)(c) above shall be liable‑
(a)  on summary conviction, to imprisonment for a term not exceeding six months or to a fine not exceeding the statutory maximum, or to both. ...”
“28(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.
(2) In subsection (1)(a) above‑
‘membership,’ in relation to a racial group, includes association with members of that group;
‘presumed’ means presumed by the offender.
(3) It is immaterial for the purposes of paragraph (a) or (b) of subsection (1) above whether or not the offender’s hostility is also based, to any extent, on‑
(a)  the fact or presumption that any person or group of persons belongs to any religious group; or
(b)  any other factor not mentioned in that
paragraph.
(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.”
4.	Before the justices the prosecution sought to rely on section 28(1)(b). The Case Stated records the prosecution as having argued:
“... that there was no requirement that the victim was a member of the racial group mentioned by the defendant, nor that the victim was racially abused personally.” 
5.	Although Mr Kirk for the Appellant submits that those words are somewhat Delphic, I understand them to indicate that the Crown were at that stage contending that the abuse was directed towards white men rather than Asians. I shall return to this later.
6.	The justices’ conclusions are to be found in paragraphs 11 and 12 of the Case Stated as follows:
“11. We accepted that the phrases ‘white man’s arse licker’ and ‘brown Englishman’ were used, but that this language was not motivated by any racial hostility in accordance with Section 28(1)(b) of the Crime and Disorder  Act 1988.
12. We believed that Mr Pal used those particular phrases because he was aggrieved at Mr Edmonds’ request to leave the premises. We found that Mr Pal was neither an articulate nor well‑educated youth and, because of these considerations, when angered he used such words as were available to him in his limited vocabulary, rather than intentionally engaging in racial hostility.” 
7.	I should, perhaps, note at this stage that the defence, quite apart from contending that any offence was not racially aggravated, also contended that no assault had been committed. The defendant, it was submitted, had acted in self‑defence. That part of the defence, however, was rejected by the Justices on the facts, and the question they pose for the opinion of the High Court is this:
8.	“Given that we were satisfied beyond reasonable doubt that the respondent had assaulted Ian Edmonds, were we correct to find that the use of phrases “white man’s arse licker’ and ‘brown Englishman’ which accompanied the assault did not make the offence racially aggravated within the meaning of Section 28 of the Crime and Disorder Act 1998?” 
9.	Although the prosecution case as argued below as entirely reliant on section 28(1)(b), I do not understand the Respondent to suggest that it cannot be put on appeal, as Mr Kirk principally now seeks to put it, under section 28(1)(a). Certainly, the question posed by the justices is wide enough to encompass consideration of both limbs.
10.	Essentially, what Mr Kirk argues is that the Respondent, in  using the language that he did, was demonstrating towards Mr Edmonds hostility based upon Mr Edmonds being an Asian. That, on its face, is a somewhat surprising submission given that both the Respondent and his victim were Asians. Nevertheless, submits Mr Kirk, that is by no means decisive. Here, he argues, the clear inference from the words used is that the Respondent was accusing Mr Edmonds of betraying his own racial group, indeed their joint racial group, by doing the bidding of another racial group, namely white men. Mr Edmonds, he was saying, was acting as an Uncle Tom; he was prepared to take the white man’s part. That, he argues, is sufficient to bring this case within section 28(1)(a). As section 28(3) makes plain, the fact that Mr Edmonds being an Asian formed part only of the basis of the Respondent’s hostility towards him, the major consideration being that as an Asian he was disloyal, is nothing to the point.
11.	That I have to say is not an argument I can accept. True it is that, but for Mr Edmonds being an Asian, the Respondent would not have used these words; they would have had no meaning. But I do not regard that sine qua non as a sufficient basis for concluding that the Respondent’s hostility towards Mr Edmonds was in any material sense based on Mr Edmonds’ membership of the Asian race. What he was demonstrating was not hostility towards Asians, but hostility towards Mr Edmonds’ conduct that night. Not racism, but resentment.
12.	Prompted by various scenarios suggested by the court, Mr Kirk next sought to put his case on a very different footing, namely by reference to the wider meaning of “membership” provided for by section 28(2). For this purpose, he argues that the words used here demonstrated hostility towards Mr Edmonds based on Mr Edmonds’ association with white men, ie antipathy not towards Asians or even a given type of Asian, but towards the white race, and hostility towards Mr Edmonds simply on the basis of his association with them.
13.	That is perhaps an echo of the argument below to which I earlier referred. To my mind, however, it is an impossibly far‑fetched submission to make on the facts of this case. If, of course, one white man were to say to another, having, say, assaulted him for inadvertently spilling his beer in a public house, “you nigger lover” or some such grossly offensive remark upon seeing his victim rejoin a group of black friends at the bar or because he knows that his victim is married to a black girl, then I have no doubt that the offence would indeed be made out on this particular basis, but that is a very far cry from the present case. It is quite unreal to suggest on the basis of the facts found that the Respondent is anti white men. He had after all been in a group with two of them just before the incident occurred. For my part, therefore, I would reject both of Mr Kirk’s  arguments and dismiss this appeal.
14.	In doing so, however, I would wish to make it perfectly plain that I will reject also an argument put before us by the Respondent, to the effect that section 28(1)(a) has no application to:
“... street arguments when insults may be thrown without thought being given to whether the same are racially abusive, which conduct is already covered by other offences  ...” 
15.	Were it otherwise, this argument runs:
“... as soon as one racial word is uttered ‑ whatever the motivation ‑ then there is no defence to the charge.” 
16.	That, of course, is not so. It will always be necessary for the prosecution to prove the demonstration of racial hostility, although the use of racially abusive insults will ordinarily, no doubt, be found sufficient for that purpose.
17.	I add one final comment before parting from this case. The prosecution having failed to prove that this offence was racially aggravated, their case against the Respondent failed in its entirety. Clearly they could, and should, have preferred against him not just an information under section 29 of the 1998 Act, but also an information alleging common  assault upon which, in any event, he stood to be convicted. There is more than one lesson to be learned from this case. In the result, however, we answer the question posed by the Case Stated in the affirmative and dismiss the appeal.
18.	MR JUSTICE KLEVAN: I agree.
19.	LORD JUSTICE SIMON BROWN: Yes, Mr Anthony?  We have dismissed the appeal. Are you seeking any consequential order?
20.	MR ANTHONY: My Lord, the Respondent is legally aided and, in those circumstances, I do not think that I can have any application.
21.	LORD JUSTICE SIMON BROWN: You will be very unwise not to seek legal aid taxation, unless you have come on a pro bono basis after all.
22.	MR ANTHONY: I am grateful for the indication. I would ask for legal aid taxation, my Lord?
23.	LORD JUSTICE SIMON BROWN: Yes. So be it, and obviously, Mr Kirk, you do not seek anything?
24.	MR KIRK: No, my Lord.
25.	LORD JUSTICE SIMON BROWN: So be it.

SMITH BERNAL