CO/655/2004 
Neutral Citation Number: [2004] EWHC 1453 (Admin)
IN THE HIGH COURT OF JUSTICE 
QUEEN'S BENCH DIVISION  
DIVISIONAL COURT 
Royal Courts of Justice 
Strand
London WC2 

Tuesday, 25 May 2004
 
B E F O R E:

LORD JUSTICE AULD 

MR JUSTICE RICHARDS 

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DIRECTOR OF PUBLIC PROSECUTIONS
(CLAIMANT)

-v- 

M (A MINOR)
(DEFENDANT) 
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Computer-Aided Transcript of the Stenograph Notes of 
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MR C PARKER (instructed by Crown Prosecution Service) appeared on behalf of the CLAIMANT
MR P DUGDALE (instructed by Ashworths) appeared on behalf of the DEFENDANT
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J U D G M E N T 

1.	LORD JUSTICE AULD:  This is an appeal by the Director of Public Prosecutions against a decision of the Magistrates of the South and South East Hampshire Combined Youth Court, sitting at Fareham on 13th November 2003, that the respondent, a 16 year-old youth, had no case to answer on a charge of racially aggravated criminal damage in breaking a takeaway kebab shop window.
2.	The Director contends that the Magistrates erred in law in finding that the words "bloody foreigners", used by the respondent immediately before breaking the window, were not capable in the circumstances of being construed as expressing hostility based on the presumed membership of the victim, a chef at the shop, of a racial group.
3.	Before turning to the case stated, I should set out the statutory provision on which the appeal turns.  Sections 29 to 32 of the Crime and Disorder Act 1998 make provision for glossing certain substantive charges with a form of racial aggravation which, if found proved in addition to the substantive charge, exposes the convicted person to a higher penalty than would otherwise be the case.  
4.	Section 28 of the Act defines the meaning of "racially aggravated" for this purpose in two ways, the proof of either of which suffices to make the substantive offence "racially aggravated".  The first way, which was and is that relied on by the Director in this case, falls under section 28(1)(a), namely: 
"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."
5.	The second way upon which the Director does not and did not rely, but which I set out to avoid later confusion when considering the Magistrates' decision, is under section 28(1)(b), namely: 
"The offence is motivated (wholly or partly) by hostility towards members of a racial ... group based on their membership of that group."
6.	Section 28(4) defines a "racial group" for this purpose, namely "a group of persons defined by reference to race, colour, nationality (including citizenship) or ethnic or national origins".  It is important to note that that definition provides for qualification of a "racial group" by reference to a number of different characteristics, the relevant ones in this case being nationality or national origins.  
7.	Section 28(3) makes an offence to which section 28 applies racially aggravated, regardless of whether the offence also had some other motivation.  It provides: 
"It is immaterial for the purposes of paragraphs (a) or (b) of subsection (1) ... whether or not the offender's hostility is also based, to any extent, on any other factor not mentioned in that paragraph."
8.	Returning to the difference between section 28(1)(a) and (1)(b) before moving on to the case stated, it is perhaps best understood by regarding section 28(1)(a) as concerned with "demonstrated" racial hostility at the time of or immediately before or after commission of the offence.  That is, as May LJ put it in paragraph 13 of his judgment in RG & LT v DPP in this Court on 28th January 2004 (as yet unreported), "not so much to indicate the offender's state of mind as to prove what he did or said so as to demonstrate racial hostility towards the victim".  By contrast, as May LJ also said in the succeeding paragraph of his judgment, section 28(1)(b) is concerned with the offender's motivation, requiring proof in that instance that the substantive offence was "wholly or partly" motivated by racial hostility.
9.	I turn now to the case stated, which in part has been helpfully summarised by Mr Christopher Parker, who appears for the Director of Public Prosecutions, in paragraphs 3 and 4 of his skeleton argument.  
"On the case stated the Magistrates found that: 
 (a) In the early hours of 2nd August 2003 Ismet Mutlu was working as a chef in the Pompey Kebab House in Portsmouth.  He was a Turkish speaker with some English who had been in the United Kingdom since 1997.  
 (b) The defendant and Mr Mutlu became involved in a disagreement about whether the defendant had paid for food.  
 (c) In the course of the argument the defendant was swearing and saying things like 'bastard, 'fuck', and 'bloody foreigners'.  He repeatedly asked Mr Mutlu to come outside.  
 (d) The defendant went outside and hit or pushed the glass window of the shop, cracking the pane.  
 (e) The police were called.  The defendant was identified as the person who had broken the window and he was arrested.  
 (f) When interviewed by the police, the defendant asserted that he had been drunk at the time and, although he could remember entering the kebab shop, he could not remember the details of the evening."  
10.	At paragraph 5 of the case, the Magistrates said this: 
"We were of the opinion:  
 (a) that the only possible evidence of racial aggravation within the meaning of section 28 Crime and Disorder Act 1998 was the expression 'bloody foreigners'.  As a matter of semantics we take the view that this phrase does not necessarily describe a person who would fall within the definition of 'racial group' at section 28(4) Crime and Disorder Act 1998.  It can be taken to mean an 'outsider' in some form or another, rather than a member of a particular group or belonging to a particular place.  Nevertheless we accept what the Prosecution put forward, that the comment was directed at a particular person on the basis of that person's characteristics.  We have the benefit of being able to put the words 'bloody foreigners' into context albeit a context where the speaker of those words is severely inebriated.  We have no doubt that the reference was meant to refer in some way to Mr Mutlu originating from outside this country, but it appears less than clear to us that this was on the basis of membership (or presumed membership) of a 'racial group'.  
 (b) whilst we doubt whether the Prosecution can satisfy a reasonable tribunal that 'bloody foreigners' refers to a 'racial group' we are clear that the basis of our adjudication on 13th November 2003 was wider than that.  Under section 28(1) Crime and Disorder Act 1998 the test for racial aggravation was satisfied if: 
 (i) either 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 
 (ii) the offence is motivated (wholly or partly) by hostility towards members of a racial group based on their membership of that group.  
"Section 28(1)(a) Crime and Disorder Act 1998 could be described as 'demonstrated racial hostility' and section 28(1)(b) Crime and Disorder Act 1998 as 'racially hostile motivation'.  It appears to us that the word 'hostility' implies something more than merely incidental.  We could not conclude that the Prosecution have put sufficient evidence before the Court on which we could find a case to answer under either limb of section 28(1) Crime and Disorder Act.  It appeared to us that the words and actions ascribed to the defendant on 2nd August 2003 could be attributed to reasons other than racially aggravated behaviour.  As we were only asked to rule on whether the racially aggravated element of the charge is made out, it appears to us that there are other more salient explanations for the behaviour alleged by the defendant.  It is we suggest possible that the actions attributed to [the respondent] were the result of annoyance following the dispute over payment for the food or a mindless act of violence (if the cognitive sciences recognise such a notion).  We do not think the Prosecution have elevated the allegation of racial aggravation beyond a mere possibility, a matter of conjecture rather than proof.  
"Accordingly, we found no case to answer and dismissed the charge."
11.	The Magistrates then went on to pose the following two questions for this Court:  
"(a) Whether we were correct to decide that the words 'bloody foreigners' were not capable of being construed as expressing hostility based on the victim's membership (or presumed membership) of a racial or religious group; or as showing that the offence was motivated (wholly or partly) by hostility towards members of a racial group based on their membership of that group.  
"(b) Whether on the facts found, we were correct to find that there was no case to answer on the above charge."
12.	Mr Parker has submitted on behalf of the Director that the Magistrates erred in law in both respects, prefacing his submissions with a reminder that the prosecution case was and is based on section 28(1)(a), demonstrated racial hostility, not on section 28(1)(b), motivation of racial hostility.  He also emphasised that this is a case of alleged racial hostility by reference to nationality or national origins, just two of the individual characteristics set out in section 28(4) of a "racial group".  
13.	First, as to the meaning of "racial group" in the section, he submitted that it means a group of persons defined by reference to one or more of the characteristics set out in section 28(4) of "race, colour, nationality (including citizenship) or ethnic or national origins".  He maintained that in the context of this case the word "foreigners" plainly meant, and was intended to mean, and was understood by the Magistrates to have meant, that Mr Mutlu was an outsider, coming from outside the United Kingdom.  He said that, although as such he was a member of a large group, also incorporating a number of other racial groups defined by reference to other of the characteristics set out in section 28(4), he was nonetheless a member of a "racial group" for the purpose of the Act.  
14.	On that approach, he submitted that the word "foreigners" encompassed all persons in this context originating from outside the United Kingdom, defined particularly by reference to nationality or national origins or citizenship.  He resisted any suggestion that the term "racial group" would fall outside the definition of section 28(4) because of the size of the group, or because the definition is made by denial of a particular characteristic.  He submitted that the size of the group is immaterial and that hostility can be expressed towards both large and small groups based on colour.  It can be an exclusive definition as well as an inclusive definition.  It could, for example, he submitted, include a term such as "non-white bastard" as well as "black bastard", or the use of the general word "Gentile" or, in a Chinese context, the use of the word "guilo".  
15.	As to the element of hostility, Mr Parker submitted that the Magistrates also erred in law in their conclusion based on their observation that there were other more salient explanations for the behaviour alleged by the Director.  He said that the Magistrates appeared to have proceeded on the basis that if there was, or may have been, a reason for the respondent to have broken the window other than one based on racial hostility, or in addition to one based on racial hostility, towards the occupiers of the kebab shop, then his words and actions in their terms "could be attributed to reasons other than racially aggravated behaviour".  
16.	His primary submission on this second element was that the Magistrates erred in their failure to take into account section 28(3) of the 1998 Act which, as I have said, states the immateriality for the purposes of paragraphs (a) or (b) of subsection (1) whether the offender's hostility is also based to any extent on any other factor not mentioned in either paragraph.  
17.	For the respondent Mr John Lofthouse, who prepared the skeleton argument on his behalf, gave primary place in his two main submissions to the issue of whether there was sufficient evidence to support the prosecution case of racial hostility and then went on to deal with the point of principle whether the word "foreigners" is within the definition of a "racial group" for the purpose of the Act.  
18.	Mr Paul Dugdale, who appeared in his stead today, gave primacy, as I would, to the second of Mr Lofthouse's main points, largely adopting Mr Lofthouse's arguments.  He stressed the inclusive meaning of the words "racial group" in the provision.  He relied for that purpose on the expression in section 28 in its various parts of "a racial group, "members of a racial group", "membership of that group", and "members of that group", and in particular to the definition in section 28(4) as "a group of persons defined by reference to [et cetera]".  So, Mr Dugdale suggested, the draftsman of the Act had in mind an inclusive definition of "racial group", in particular by his use of the indefinite article and the word "that" in those various formulations in section 28.  
19.	He prayed in aid a decision of the Court of Appeal, Criminal Division in R v White (Anthony) [2001] 1 WLR 1352, where a defendant of West Indian origins called a bus conductress, who came from Sierra Leone, an "African bitch".  On appeal against conviction it was contended that the expression was not capable of demonstrating hostility based upon membership of a racial group, since "African" was not a racial group.  The appeal was dismissed but, submitted Mr Dugdale, the case demonstrates the care necessary in such cases to identify a group within the meaning of the Act.  He referred the Court in particular to paragraphs 17 and 18 of Pill LJ's judgment in that case, which I consider below.  He submitted that it followed from Pill LJ's reasoning that a "racial group" must be individual.  It must be defined within itself, not by reference to what it was not.  If that were not so, he said, any disparate set of people could be a group and the Court in White would not have spent so much time on the issue of defining the word "African".  
20.	Here, he said, the prosecution have a term "bloody foreigners", but there is nothing else for it to draw on.  There is no suggestion of hostility by the respondent based upon membership of any group other than that of "foreigners", a term which is not, he said, easy to define.  In short, he maintained that "foreigners" are not a group defined by any of the individual characteristics set out in section 28(4).  
21.	Mr Dugdale also referred to Orphabis v Queen Mary College [1985] AC 761, which concerned a Cypriot national who had been held to be a member of three racial groups: first, Cypriot; second, non-British nationality or national origins; and third, non-EEC nationality or national origins.  However, as he pointed out, that was possible in that case because of the extended meaning given to a "racial group" by section 3(2) of the Race Relations Act 1976, in contrast to this case where there is no such extending provision in the 1998 Act.  
22.	As to the second point, evidence of hostility, Mr Dugdale submitted that the Magistrates were entitled to find on the material before them, and on the view they took of it, that there was no sufficient case of racial hostility for the respondent to answer.  The hostility, he submitted, was based -- seemingly on their view, if not wholly, certainly predominantly -- on the dispute over the payment for the food and their finding that his manner or his mode of expression of that hostility was incidental to that dispute was sufficient justification for their upholding the submission of no case.  
23.	Mr Dugdale said that context is all and here the Magistrates were masters of the context.  The whole argument was about payment for food.  The words used by the respondent with other completely non-racial abusive language barely merited abuse or hostility, still less designation of it as racial, and the Magistrates were entitled so to find.
24.	I deal first with the point of principle or construction of the words "racial group" as defined in section 28(4) of the Act, and the Magistrates' first question; whether they were entitled to hold, in the circumstances before them, that the expression "bloody foreigners" did not denote a "racial group" within the meaning of section 28(4).  
25.	It should be noted that they did not hold that such an expression could not as a matter of law denote a "racial group".  As I have indicated, they stated that it did not, at any rate as a matter of semantics, necessarily describe a person who would fall within the definition, an approach which, as I understood his submissions, Mr Dugdale adopted at least as a starting point, qualifying it as I have said by the comment that context is all.  
26.	However he went on, as I have mentioned, to submit that in effect the formulation of the term "racial group" in section 28 really excludes a non-inclusive definition of the sort relied on by the Director in this case.  At the very least, as I understood him, he submitted it would be a very rare context in which the term "bloody foreigners" could constitute a "racial group" because of the use of the indefinite article and the word "that", and the other formulations to which I have referred for the definition of a "racial group" in section 28.  And so he invited the Court to approach the matter on the basis that that definition is one of an inclusive, not an exclusive, nature.  
27.	The authority of White to which he referred in that connection does not, in my view, support so general a proposition.  There the Court was concerned, as I have said, with the adjective "African" in the otherwise offending expression "African bitch".  Pill LJ, giving the judgment of the Court, referred to two House of Lords decisions, Ealing LBC v Race Relations Board [1972] AC 342 and Mandla v Dowell Lee [1983] 2 AC 548, on similar terminology in the Race Relations legislation.  He said at paragraph 17 as to the word "race": 
"The word bears different meanings in different contexts and in different countries.  What does emerge from the speeches in Mandla and in Ealing is however that the Court is not tied to the precise definition in any dictionary.  The statutory language is intended to be given a broad, non-technical meaning.  Moreover words are to be construed as generally used in the jurisdiction of England and Wales.  In our judgment, the word African does describe a 'racial group' defined by reference to race.  In ordinary speech, the word African denotes a limited group of people regarded as of common stock and regarded as one of the major divisions of humankind having in common distinct physical features.  It denotes a person characteristic of the blacks of Africa, to adopt a part of the definition in the dictionary."
28.	Pill LJ's reference in paragraph 19 of his judgment to the difficulty of identifying a racial group defined by reference to "race" in South America is not of relevance to a charge such as the one here based on a definition by reference, say, to nationality or national origins.  
29.	To similar effect is the decision of Maurice Kay J, as he then was, in the DPP v Woods 22nd January 2002, a decision of the Administrative Court, in which he held that the words "you black bastard" were capable of constituting a demonstration under section 28(1)(a) of hostility towards a racial group; the ruling of this Court in DPP v McFarlane, 7th March 2002, in respect of various words of abuse, namely "jungle bunny, "black bastard" and "Wog", which were similarly regarded.
30.	In my view, looking at the operation of section 28, as we must in the context of racial hostility directed by someone in this country to someone whose, or whose family's, origin is not in this country, it is inescapable that the word "foreigner" may, depending on the context, qualify as demonstration within section 28(1)(a) of a "group of persons defined by reference to race ... or national origins" within the definition in section 28(4), a minority, albeit now a substantial minority, in national terms in the population of this country.  
31.	It is perhaps of significance that section 28(4) reads "by reference to race", et cetera, not "by their race", or even "by reference to their race".  I agree with Mr Parker that the Director can satisfy the definition in that provision in a non-inclusive, as well as inclusive, sense according to the circumstances of the words used, or the act done, and the context of the case.  In addition, as White and McFarlane show, the size of the group is, in any event, immaterial to the definition since hostility can be expressed by the use of pejorative words, such as that here or those in White and McFarlane, towards groups large or small based on colour or origin, and can be equally hurtful regardless of the number of people with whom the victim shares the non-inclusiveness of being a foreigner.
32.	The non-inclusion in "home" racial groups as a species of "racial group" in the Queen Mary College case -- whilst the product there of express statutory provision to that effect, absent here -- in my view, supports the logic of giving a broad interpretation to the expression "racial group" in this context.  
33.	To that extent the Magistrates were correct, as I read the opening words of their opinion, to accept in principle, or as they put it "as a matter of semantics", that the words "bloody foreigners" could, depending on the context, describe a person within a "racial group" as defined in section 28(4).  
34.	However, in purporting to put that view into context, and holding that "the words and actions ascribed to the defendant ... could be attributed to reasons other than racially aggravated behaviour", they slipped from demonstrated racial hostility under section 28(1)(a), on which the Director relied, to motivated racial hostility under section 28(1)(b), on which he did not.  That they did so, perhaps by a process of unconscious elision, is evident from their incorporation of the section 28(1)(b) test in the second clause of their first question to the Court, namely whether they were correct to decide that the words "bloody foreigners" were not capable of "showing that the offence was motivated (wholly or partly) by hostility towards members of a racial group based on their membership of that group".
35.	In that respect, and seemingly in ignoring section 28(3), they erred in their approach to whether, in the circumstances of this case, the prosecution had disclosed a case to answer of demonstrated racial hostility under section 28(1)(a).  In suggesting, as a possibility, that the appellant's behaviour was attributable to, that is motivated by, his annoyance over the dispute about payment for the food, and leaving the racial allegation itself as a mere possibility, the Magistrates mistook the test of guilt that they should have had in mind.  And they wrongly treated the two possible motivations as mutually exclusive rather than, as the mischief for which section 28 as a whole is intended to provide, capable of being complementary.  Hence, the provision in section 28(3) which, as I have said, the Magistrates appear to have ignored, that it is immaterial for the purpose of section 28(1)(a) or (b) "whether the offender's hostility is also based, to any extent, on any other factor". 
36.	In my view, the Magistrates' disregard of section 28(3), given their findings of fact that I have summarised, renders their decision unsound in law.  It is also difficult to understand how, at the close of the prosecution case, they felt able to find that there was no evidence of hostility in the respondent's use of the word "bloody" in conjunction with the word "foreigners" sufficient to justify a demonstration of hostility based in part on racial grouping.  That is so whether they were considering the matter under section 28(1)(a) or (b), and whether or not they had regard to section 28(3).  
37.	Accordingly, in my view the Magistrates' findings of fact did not entitle them to take, on a proper view of the law, the step they did.  They had determined that the respondent broke the window without lawful excuse and that immediately before doing so he had in the course of dispute or otherwise used the words "bloody foreigners".  As I have said, in my view, as a matter of construction in the context of the case the word "foreigners" was capable of describing a "racial group" defined by reference to nationality and/or national origins within the meaning of section 28(4) of the 1998 Act.  
38.	It is also clear in this context that the adjective "bloody" governing the word "foreigners" was capable of demonstrating hostility based at least partly, by reference to section 28(3), on presumed membership of that racial group.  I would accordingly answer no to both of the Magistrates' questions.  However, in the light of submissions from both counsel, based principally on the passage of time, I would not remit the matter to the Magistrates for redetermination. 
39.	MR JUSTICE RICHARDS:  I agree.
40.	LORD JUSTICE AULD:  Accordingly, the appeal is allowed. 
41.	MR DUGDALE:  Thank you very much.  Two final matters.  The first is that I notice that this case was listed in your Lordship's list with the respondent's full name.  He is 17 years old.  I wonder if your Lordships would consider it appropriate to make an order under section 39 of the Children and Young Persons Act to protect his identity. 
42.	LORD JUSTICE AULD:  That would be the normal course, would it not?  Yes, we make that order. 
43.	MR DUGDALE:  Thank you.  Finally, could I ask for legal aid taxation? 
44.	LORD JUSTICE AULD:  You certainly can, Mr Dugdale. 
45.	MR DUGDALE:  Thank you very much.