Racial and Religiously Aggravated Offences Flashcards
The offences that can become racially or religiously aggravated can be grouped in four categories:
- Assaults:
wounding or grievous bodily harm—Offences Against the Person Act 1861, s. 20;
causing actual bodily harm—Offences Against the Person Act 1861, s. 47;
common assault—Criminal Justice Act 1988, s. 39 (see chapter 2.7). - Criminal damage:
‘simple’ criminal damage—Criminal Damage Act 1971, s. 1(1) (see chapter 3.10). - Public order:
causing fear or provocation of violence—Public Order Act 1986, s. 4;
intentional harassment, alarm or distress—Public Order Act 1986, s. 4A;
causing harassment, alarm or distress—Public Order Act 1986, s. 5. - Harassment:
harassment—Protection from Harassment Act 1997, s. 2;
stalking—Protection from Harassment Act 1997, s. 2A;
putting people in fear of violence—Protection from Harassment Act 1997, s. 4;
stalking involving fear of violence or serious alarm or distress—Protection from Harassment Act 1997, s. 4A (see para. 2.8.6).
The Offences
The basic offence must have been committed. Only when that is accomplished should consideration then be given as to whether the offence is aggravated within the meaning of s. 28 of the Act (see para. 2.6.3). While the definition of a ‘racist’ incident is of critical importance to police officers, that definition (‘a racist incident is any incident which is perceived to be racist by the victim or any other person’) must not be confused with the definition of a ‘racially or religiously aggravated’ offence under s. 28 of the Act. A ‘racist’ incident does not automatically become a racially or religiously aggravated offence.
Section 28 of the Crime and Disorder Act 1998 states:
(1) An offence is racially or religiously aggravated for the purposes of sections 29 to 32 . . . 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.
(2) In subsection (1)(a) above—
‘membership’, in relation to a racial or religious 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 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.
(5) In this section ‘religious group’ means a group of persons defined by reference to religious belief or lack of religious belief.
Timing of the Hostility
A racial insult uttered moments before an assault on a doorman was enough to make the offence racially aggravated for the purposes of s. 29 of the Crime and Disorder Act 1998 (DPP v Woods [2002] EWHC 85 (Admin)).
In DPP v McFarlane [2002] EWHC 485 (Admin), it was decided that, where the expressions ‘jungle bunny’, ‘black bastard’ and ‘wog’ were used, the offence was made out as the words were used immediately before and at the time of the commission of the offence (contrary to s. 4 of the Public Order Act 1986).
The word ‘immediately’ in s. 28(1)(a) not only means immediately before but also immediately after the commission of the offence.
The need for any such hostility to be demonstrated immediately means that it must be shown to have taken place in the immediate context of the basic offence. In Parry v DPP [2004] EWHC 3112 (Admin), the defendant had caused damage to a neighbour’s door by throwing nail polish over it. The police attended 20 minutes after the damage had occurred and spoke to the defendant who was, by that time, sitting in his own house. The defendant made comments demonstrating hostility based on the victim’s membership of a racial group. The defendant was convicted of racially aggravated criminal damage but appealed and the conviction was quashed. The court held that the wording of the statute meant that any hostility had to be demonstrated immediately before or immediately after the substantive offence and that the courts below (magistrates’) had not been entitled to consider the retrospective effect of the comments made later by the defendant.
Demonstration of Hostility
Section 28(1)(a) requires that the defendant demonstrate hostility immediately before, during or after committing the offence. This is not to establish the accused’s state of mind, but what he/she did or said so as to demonstrate hostility towards the victim. The p. 422↵demonstration will often be by way of words, shouting, holding up a banner etc. or by adherence to a group that is demonstrating racial hostility.
In the context of criminal damage, the Divisional Court has confirmed that the relevant hostility can be demonstrated even if the victim is no longer present or is not present (Parry). However, the need for any such hostility to be demonstrated immediately means that it must be shown to have taken place in the immediate context of the offence.
Hostility
Common to both factors under s. 28(1)(a) and (b) is the notion of ‘hostility’ which is not defined by the Act. The Oxford English Dictionary defines ‘hostile’ as ‘of the nature or disposition of an enemy; unfriendly, antagonistic’. It would seem relatively straightforward to show that someone’s behaviour in committing the relevant offences was ‘unfriendly or antagonistic’.
Victim
The demonstration of hostility will be towards the victim based on the victim’s membership or presumed membership of a racial or religious group (under s. 28(1)(a)). This causes no difficulty where the offence is one of assault, public order or harassment where the victim is a person or where the offence is a criminal damage matter and the property is owned by a person (s. 30(3) of the Act provides that the person to whom the property belongs or is treated as belonging, will be treated as the victim). However, there are problems where the victim of criminal damage is a corporate body, e.g. where a bus shelter belonging to a transport company is damaged by racist graffiti. Of course, the transport company may have a legal personality but it is impossible for it to have a race or a religion. Therefore it cannot be possible to prove the offence under s. 28(1)(a) as it must be based on the victim’s membership or presumed membership of a racial or religious group. In these circumstances, the most suitable charge will be under s. 28(1)(b) of the Act (motivation).
Police officers can be victims of these offences and are entitled to the same protection under the legislation as anyone else (R v Jacobs [2001] 2 Cr App R (S) 38).
Keynote
The victim’s perception of the incident (whatever it is) is totally irrelevant.
Motivation by Hostility
Section 28(1)(b) is concerned with the accused’s motivation, which does concern his/her subjective state of mind. It will often be the case that the kind of demonstration referred to in para. 2.6.5 would be evidence of such motivation.
In Taylor v DPP [2006] EWHC 1202 (Admin), it was decided that use of phrases such as ‘fucking nigger’ and ‘fucking coon bitch’, patently not used in a jesting manner, must, in the circumstance of the case, have led any judge to find that the offence (in this case, the Public Order Act 1986, s. 5(1)(a)) was motivated, at least in part, by racial hostility as described in s. 28(1)(b). The fact that the offence is motivated only in part by such hostility would not alter the fact that the offence has been committed (motivated wholly or partly by such hostility).
Racial Groups
Section 28(4) of the Crime and Disorder Act 1998 states that a ‘racial group’ means a group of persons defined by reference to race, colour, nationality (including citizenship) or ethnic or national origins.
When considering whether an offence was racially motivated under s. 28, hostility demonstrated to people who were foreign nationals simply because they were ‘foreign’ can be just as objectionable as hostility based on some more limited racial characteristic. In DPP v M [2004] EWHC 1453 (Admin), a juvenile used the words ‘bloody foreigners’ immediately before smashing the window of a kebab shop. The Divisional Court held that this was capable of amounting to an expression of hostility based on a person’s membership or presumed membership of a racial group for the purposes of s. 28(1)(a) of the Crime and Disorder Act 1998. Although the statutory wording used the expression ‘a racial group’, the court held that a specific and inclusive definition of such a group had to be used by the defendant (e.g. the defendant did not have to single out a specific nationality) and the size of group referred to by a defendant (such as all ‘foreigners’) was irrelevant. In R v Rogers [2005] EWCA Crim 2863, the defendant had called three Spanish women ‘bloody foreigners’ and told them to ‘go back to your own country’. The prosecution case was that the defendant had demonstrated hostility based on the women’s membership of a racial group. The court’s decision clarifies the position that for an offence to be aggravated under s. 28, the defendant has first to form a view that the victim is a member of a racial group (within the definition in s. 28(4)) and then has to say (or do) something that demonstrates hostility towards the victim based on membership of that group. However, the Court of Appeal noted that the very wide meaning of racial group under s. 28(4) gives rise to a danger of aggravated offences being charged where mere ‘vulgar abuse’ had included racial descriptions that did not truly indicate hostility to the race in question. Consequently, s. 28 should not be used unless the prosecuting authority is satisfied that the facts truly suggest that the offence was aggravated (rather than simply accompanied) by racism.
The Divisional Court has held that the words ‘white man’s arse licker’ and ‘brown Englishman’ when used to accompany an assault on an Asian victim did not necessarily make the assault ‘racially aggravated’ and that the prosecution had not done enough to show that the assailants’ behaviour fell under the definition set out in s. 28 of the 1998 Act (DPP v Pal [2000] Crim LR 756), a case that is hard to reconcile with s. 28(2).
Traditional Romany gypsies are capable of being a racial group on the basis of ethnic origin (Commission for Racial Equality v Dutton [1989] QB 783). The term ‘Travellers’ would not be covered, although in O’Leary v Allied Domecq (2000) 29 August, unreported (Case No. 950275-79) it was held that ‘Irish Travellers’ were a distinct group for the purposes of the Race Relations Act 1976. However, it should be noted that this decision is only ‘persuasive’ (as it was a county court decision) and our courts have yet to decide firmly whether ‘Irish Travellers’ are a ‘racial group’ for the purposes of the Crime and Disorder Act 1998. It is likely that the ‘Irish’ element would be covered anyway as English and Scottish people have been held to constitute groups defined by reference to national origins and thus as members of ‘racial groups’ in the broad sense as defined and protected from discrimination under the Race Relations Act 1976 (now the Equality Act 2010) (Northern Joint Police Board v Power [1997] IRLR 610). This decision ought logically to extend to Irish and Welsh people. This does not mean that ‘travellers’ are entirely excluded from the protection the Act offers as, for example, if a ‘New-Age’ traveller were subject to a trigger offence accompanied by a demonstration of hostility based on his/her skin colour or religion as opposed to being simply a ‘New-Age’ traveller, the offence would be committed.
In Attorney-General’s Reference (No. 4 of 2004), sub nom Attorney-General v D [2005] EWCA Crim 889, the use of the word ‘immigrant’, in its simple implication that a person was ‘non-British’, was specific enough to denote membership of a ‘racial group’ within its meaning in s. 28(4) of the Crime and Disorder Act 1998.
Mandla v Dowell Lee [1983]
In determining whether or not a group is defined by ethnic origins, the courts will have regard to the judgment in the House of Lords in Mandla v Dowell Lee [1983] 2 AC 548.
In that case, their lordships decided that Sikhs were such a group after considering whether they as a group had:
- a long shared history;
- a cultural tradition of their own, including family and social customs and manners, often, but not necessarily, associated with religious observance;
- either a common geographical origin or descent from a small number of common ancestors;
- a common language, not necessarily peculiar to that group;
- a common literature peculiar to that group;
- a common religion different from that of neighbouring groups or the general community surrounding the group; and
- the characteristic of being a minority or an oppressed or a dominant group within a larger community.
Lord Fraser’s dictum in Mandla suggests that the first two characteristics above are essential in defining an ‘ethnic group’, while the others are at least relevant. His lordship also approved a decision from New Zealand to the effect that Jews are a group with common ethnic origins (King-Ansell v Police [1979] 2 NZLR 531).
Religious Groups
A ‘religious group’ may, for the purposes of the Act, include a group defined by its lack of religious beliefs. If, for example, D assaults V and at the time of the assault D demonstrates hostility towards V because V is an atheist or humanist who rejects religious beliefs, D must be guilty of a religiously aggravated offence. The same could be said of an assault on an agnostic.
A purely religious group such as Rastafarians (who have been held not to be members of an ethnic group per se (Dawkins v Crown Suppliers (Property Services Agency) [1993] ICR 517) are covered by the aggravated forms of offences as they are a religious group. In reality, a number of racial groups will overlap with religious groups in any event; Rastafarians would be a good example. An attack on a Rastafarian might be a racially aggravated offence under s. 28 because it was based on the defendant’s hostility towards a racial group (e.g. African-Caribbeans) into which many Rastafarians fall. Alternatively, an attack might be made on a white Rastafarian based on the victim’s religious beliefs (or lack of religious beliefs), i.e. his/her ‘membership of a religious group’. Muslims have also been held not to be a racial group (JH Walker v Hussain [1996] ICR 291) but Muslims are clearly members of a religious group and, as such, are covered by the Act.
Keynote
To be guilty of an offence that is racially or religiously aggravated, it is not necessary that the accused be of a different racial, national or ethnic (or religious) group from the victim (R v White [2001] EWCA Crim 216).
Membership
An important extension of ‘racial or religious groups’ is the inclusion of people who associate with members of that group. ‘Membership’ for the purposes of s. 28(1)(a) will include association with members of that group (s. 28(2)). This means that a white man who has a black female partner would potentially fall within the category of a ‘member’ of her racial group and vice versa. Moreover, people who work within certain racial or religious groups within the community could also be regarded as members of those groups for these purposes.
For the purposes of s. 28(1)(a), ‘membership’ will also include anyone presumed by the defendant to be a member of a racial or religious group. Therefore, if a defendant wrongly presumed that a person was a member of a racial or religious group, say a Pakistani Muslim, and assaulted that person as a result, the defendant’s presumption would be enough to make his/her behaviour ‘racially or religiously aggravated’, even though the victim was in fact an Indian Hindu.
Such a presumption would not extend to the aggravating factors under s. 28(1)(b). The only apparent reason for this would seem to be that the s. 28(1)(a) offence requires hostility to be demonstrated towards a particular person (‘the victim’), while the offence under s. 28(1)(b) envisages hostility towards members of a racial or religious group generally and does not require a specific victim.
Other Factors
Section 28(3) goes on to provide that it is immaterial whether the defendant’s hostility (in either case under s. 28(1)) is also based to any extent on any other factor. This concession in s. 28(3) only prevents the defendant pointing to another factor in order to explain his/her behaviour in committing the relevant offence (assault, criminal damage etc.).
Although it removes the opportunity for a defendant to argue that his/her behaviour was as a result of other factors (e.g. arising out of a domestic dispute), the subsection does not remove the burden on the prosecution to show that the defendant either demonstrated racial or religious hostility or was motivated by it.
