Racially and Aggravated Offences

Question 1

The offences that can become racially or religiously aggravated can be grouped in four categories:

Answer 1

Criminal Damage
• s1: ‘Simple’ criminal damage—Criminal Damage Act 1971

Harassment (Protection from Harassment Act 1997)
• s2: Harassment
• s2A: Stalking
• s4: Putting people in fear of violence
• s4A: Stalking involving fear of violence or serious alarm or distress

Assaults
• s20: Wounding or grievous bodily harm—Offences Against the Person Act 1861
• s47: Causing actual bodily harm—Offences Against the Person Act 1861
• s39: Common assault—Criminal Justice Act 1988

Public Order (Public Order Act 1986)
• s4: Causing fear or provocation of violence.
• s4A: Intentional harassment, alarm or distress.
• s5: Non-intentional harassment, alarm or distress.

Question 2

Meaning of racially or religiously aggravated

Answer 2

s28 Crime and Disorder Act 1998

A) at the time of 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.

Question 3

What is a ‘racial group’?

Answer 3

s28 Crime and Disorder Act 1998

(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.

Question 4

To be guilty of an offence that is racially or religiously aggravated, is it necessary for the accused to be a different racial, national, religious or ethnic group from the victim?

Answer 4

No (R v White [2001])

Question 5

“membership”, in relation to a racial or religious group, includes…

Answer 5

…association with members of that group.

E.g having a black wife, working with certain religious/ racial groups.

Question 6

Does the “presumption” of a victims membership to a racial or religious group extent to aggravating factors under s28(1)(b)?

Answer 6

No – this offence requires hostility to be demonstrated towards members of a group generally, rather than a specific victim.

Question 7

Considering racially or religiously aggravated offences, need the defendant’s hostility also be based to any extent on any other factor?

Answer 7

s28(3) Crime and Disorder Act 1998

No – It is immaterial for the purposes of paragraph (a) or (b) of subsection (1).

Question 8

Timing for Racially or Religiously Aggravated Offences

Example of when it wouldn’t be an offence.

Answer 8

‘At the time of the offence, or immediately before or after doing so.’

e.g John assaults Xavier by punching him in the face. He does not say anything at the time but when arrested he says ‘I’m glad I hit the black bastard’– Not at the time of offence.

Question 9

Question: Jeshan and Mo are both British Pakistani males.. They have a verbal argument and as Jeshan is walking away Mo smashes a bottle over his head. As he does this Mo says: “take this you dirty Paki bastard” to Jeshan.

Has Mo committed a racially aggravated assault?

Answer 9

• Yes, Mo has.
• R v White 2001 outlines that to be guilty of an offence that is racially or religiously aggravated, the offender and the victim can be of the same racial, ethnic or national group.

Question 10

Question: Clive is angry with his neighbour David over parking. One night Clive goes out with a spray can and sprays a swastika over David’s garage. Clive believes that David is Jewish. David sees the damage in the morning and is somewhat confused as he is Buddhist.

Has Clive committed an offence of religiously aggravated Criminal Damage?

Answer 10

• Yes, Clive has.
• Clive is presuming that David is Jewish, the fact he is not is irrelevant.
• The offence is religiously aggravated even if he has targeted the wrong religion.

Question 11

Question: Patrick goes out one night and throw a brick through the window of an Indian restaurant. He accompanies this with the words “piss off back to your own country bloody foreigners. All you do is come here and rape our girls”.

Has Patrick committed an offence of religiously aggravated offence?

Answer 11

• Yes, Patrick has.
• In R v Rogers 2005 it was agreed that hostility/ damage had been demonstrated on the persons membership of a racial group.
• Even though Patrick has not identified that group specifically, the damage is racially motivated.