Racially and religiously aggravated offences

Question 1

Offences that can become racially or religiously aggravated

Answer 1

Assaults - common assault, ABH and s20 GBH
Criminal damage
Public order - s5, 4A + 4
Harassment - s2, s2A, s4, s4A
Basic offence must have been committed.
A racist incident does not automatically become a racially or religiously aggravated offence.

Question 2

What does racially and religiously aggravated mean for sentencing?

Answer 2

Carries a higher maximum penalty

Question 3

Racially or religiously aggravated meaning

Answer 3

s28 Crime and Disorder Act 1998
An offence is racially or religiously aggravated if at the time or immediately before or after committing the offence, D demonstrates hostility towards V based on Vs membership or presumed membership of a racial or religious group or
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 4

Timing of the hostility

Answer 4

At the time of, immediately before or after the offence.
Hostility must be shown to have taken place in the immediate context of the basic offence.
Racial insult moments before is enough.
Racial comment 20 minutes after when police arrive is not sufficient.

Question 5

Demonstration of hostility

Answer 5

D must demonstrate hostility immediate before, during or after the offence.
Often by way of words, shouting, holding up a banner etc or by adherence to a group that is demonstrating racial hostility.
For criminal damage, hostility can be demonstrated even if V is not present

Question 6

Hostility definition

Answer 6

Dictionary definition

Of the nature or disposition of an enemy; unfriendly, antagonistic

Question 7

What if victim is a company e.g. racist graffiti on bus shelter?

Answer 7

Can’t prove the offence as it is impossible for a business with a legal personality to have a race or religion and it must be based on the victim’s membership or presumed membership of racial or religious group.

Question 8

Can police be the victim

Answer 8

Yes, entitled to the same protection as anyone else

Question 9

What about victim’s perception of the incident

Answer 9

It is irrelevant

Question 10

Racial groups

Answer 10

A group of persons defined by reference to race, colour, nationality (including citizenship) or ethnic or national origins.
Ethnic origins - court will consider if they had a long shared history, a cultural tradition of their own etc. Both Sikhs and Jews have been deemed as groups with common ethnic origins.

Question 11

What if D refers to V as ‘bloody foreigners’?

Answer 11

Can be capable of amounting to an expression of hostility based on the persons membership or presumed membership of a racial group.
HL said foreigners were a racial group within the meaning of s28(4)

Question 12

Would Irish travellers be a racial group?

Answer 12

Don’t know

They have been held to be one in County Court - this is just persuasive - but likely would be followed

Question 13

Would ‘immigrant’ be a racial group?

Answer 13

Yes, implication that a person was ‘non-British’ was specific enough to denote membership of a racial group

Question 14

Religious groups

Answer 14

May include a group defined by its lack of religious beliefs e.g. atheists.
Covers Rastafarians
Usually, a number of racial groups will overlap with religious groups e.g. Rastafarians who typically belong to a racial group like African-Caribbeans and the religious group Rastafarians.
Muslims are a religious group and not a racial group.

Question 15

Does D have to be of a different racial, national or ethnic group from V?

Answer 15

No

Question 16

Membership

Answer 16

Includes those who associate with members of that group.
E.g. a white man who has a black female partner could fall within the category of a member of her racial group and vice versa.

Question 17

Other factors for hostility

Answer 17

It is immaterial whether Ds hostility is also base to any extent on any other factor