CO/2074/2004 
Neutral Citation Number: [2004] EWHC 2990 (Admin)
IN THE HIGH COURT OF JUSTICE 
QUEEN'S BENCH DIVISION  
DIVISIONAL COURT 
Royal Courts of Justice 
Strand
London WC2 

Tuesday, 9th November 2004
 
B E F O R E:

LORD JUSTICE THOMAS 

MR JUSTICE FULFORD 

- - - - - - -
DIRECTOR OF PUBLIC PROSECUTIONS
(CLAIMANT)

-v- 

BALHAM YOUTH COURT
(DEFENDANT) 
B  
(INTERESTED PARTY) 
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- - - - - - -
 
MS S WHITEHOUSE (instructed by Crown Prosecution Service) appeared on behalf of the CLAIMANT
MR M ROQUES (instructed by Goldkorns) appeared on behalf of the INTERESTED PARTY  
The DEFENDANT was not represented  
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 J U D G M E N T 

1.	MR JUSTICE FULFORD:  The claimant in this case, the Director of Public Prosecutions, challenges the decision of the Youth Court, District Judge Gillibrand, sitting at Balham on 11th February 2004 to dismiss, on a submission of no case to answer, the charge of racially aggravated assault contrary to section 29(1)(b) Crime and Disorder Act 1998 brought by the claimant against the interested party ("B"). 
2.	The facts can be stated extremely briefly.  It was the Crown's case that B assaulted Abdel Djemal on Monday 7th April 2003 shortly after the victim went into a takeaway food shop on the Brixton Road in South London.  B was in the shop arguing with the owner about a damaged £20 note which the latter was refusing to accept.  B involved the victim in the dispute, and then prior to assaulting him said: 
"You fucking foreigner, bloody bastard, you come back to your fucking country.  You fucking die all of you -- dead -- dead."
3.	The assault occurred when B, who was brandishing a knife, followed the victim down the Stockwell Road and punched him on the left side of the face, cutting the skin beneath his left eye.  Thereafter he repeatedly tried to stab Djemal who fortunately caught his hand and prevented further injury before members of the public came to his assistance.
4.	The provisions, as relevant, of the Crime and Disorder Act 1998 creating the offence of racially or religiously aggravated assaults are as follows: 
"29(1) A person is guilty of an offence under this section if he commits --  
(a) an offence under section 20 of the Offences Against the Person Act 1861 (malicious wounding or grievous bodily harm);  
(b) an offence under section 47 of that Act (actual bodily harm); or 
(c) common assault, 
which is racially or religiously aggravated for the purposes of this section. 
5.	For the meaning of "racially or religiously aggravated", it is necessary to turn to section 28 which provides as follows: 
(1) An offence is racially or religiously 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 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 --  
(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. 
6.	In a helpful statement prepared for this court by the District Judge, we are given his reasons for upholding the submission made on behalf of B at the close of the prosecution case.  The judge was particularly influenced in arriving at his decision by three things.  First, the decision in Mandla v Dowell Lee [1983] 2 AC 548; second, the terms of section 17 of the Public Order Act 1986; and third, the decision in DPP v Stoke on Trent Magistrates' Court [2003] EWHC 1593.
7.	In Mandla v Dowell Lee the plaintiffs, father and son, were Sikhs and, in accordance with their beliefs, wore turbans over their unshorn hair.  Dowell Lee, the headmaster of a school owned by the second defendant, refused to admit the son as a pupil of the school because he would not cut his hair and cease to wear a turban to comply with the school rules as to uniform.  The plaintiffs brought an action for a declaration that the defendants had committed an act of unlawful discrimination against the plaintiffs within the meaning of the Race Relations Act 1976.  
8.	The House of Lords, in overturning the decision of the judge (that had been upheld by the Court of Appeal) and finding for the plaintiffs, held that any discrimination against the plaintiffs could only be contrary to section 1(1)(b) of the Race Relations Act 1976 if they were members of a "racial group" defined by reference to ethnic origins, as provided by section 3(1) of the Act that "ethnic  . . . origins" in the context of that provision meant a group as a segment of the population distinguished from others by a sufficient combination of shared customs, beliefs, traditions and characteristics derived from a common or presumed common past, even if not drawn from what in biological terms was a common racial stock.  It was a combination which gave them a historically determined social identity in their own eyes and in those outside the group.  Sikhs were in that sense a racial group defined by reference to "ethnic origins" for the purpose of the Act, and although they were not biologically distinguishable from other peoples of the Punjab.  Accordingly, the plaintiffs had been discriminated against within the meaning of section 1(1)(b). 
9.	The District Judge considered that section 17 Public Order Act 1986 was of persuasive value because "racial hatred" for the purposes of that section was defined as:  
"Hatred against a group of persons ... defined by reference to colour, race, nationality (including citizenship) or ethnic or national origins." 
10.	Finally, in DPP v Stoke-on-Trent Magistrates' Court, this court decided that chanting at a football match, "You're just a town full of Pakis" at the opposition Oldham supporters was, on the facts of that case, a statement of a racialist nature and was racially derogatory and insulting, and thereby infringed section 3(1) and (5) Football Offences Act 1991 which prescribes chanting of a racialist nature at a designated football match.  The words "of a racialist nature" for the purposes of the offence, as provided by 3(2)(b), mean that the chant consists of or includes matter which is threatening, abusive or insulting to a person by reason of his colour, race, nationality, or ethnic or national origins.  
11.	The judge took note of this decision and the other two matters set out above and concluded: 
"It is abundantly clear to me that the term 'foreigner' does not come within the definition contained in section 28 of the Crime and Disorder Act.  As this is an integral part of that which the prosecution has proved, I have no alternative but to allow the submission of no case and dismiss the charge.  The term 'foreigner' refers to the rest of the world who are not British subjects." 
12.	We have had the advantage of being able to consider the decision of this court in the DPP v M (a Minor) [2004] EWHC 1453 Admin, a judgment of 25th May 2004.  As with the present case, the Director had appealed a decision of the Justices that the words "bloody foreigners", used in that instance by the respondent immediately before breaking a window, were not capable of being construed as expressing hostility based on the presumed membership of the victim (a chef at the shop) of a racial group.  Auld LJ in the course of his judgment (with which Richards J agreed) stated as follows in paragraph 36: 
"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 origins are 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. 
(37) It is perhaps of significance that section 28(4) reads 'by reference to race' et cetera and 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 ... 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 ... 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."
13.	That decision, so close to the instant appeal as to the words used and the context of their use, is determinative, in my judgment, of this appeal.  The reasoning of Auld LJ is wholly persuasive and the judge was wrong to conclude the statement, "You fucking foreigner, bloody bastard, you come back to your fucking country.  You fucking die all of you -- dead -- dead" was incapable of coming within the definition of section 28 Crime and Disorder Act.  Following the reasoning applied in M (a Minor) they clearly are so capable, and the submission of no case to answer should not have been upheld.  It is to be noted that counsel on behalf of the interested party, B, concedes that in light of M (a Minor), the District Judge ruled incorrectly on the submission.
14.	Turning to disposal.  As regards the proposed order that the decision of the District Judge should be quashed and the case remitted for a rehearing, this is opposed on behalf of B.  It is submitted that because M (a Minor) was decided after the District Judge's decision, the District Judge, at the time, did not err in law and that accordingly there are no remedies available to this court.  Moreover, it is argued that the principle of autrefois acquit applied to the decision of the District Judge when he upheld the submission of no case to answer.  I do not accept those submissions.  It has been long accepted that a misconstruction of a statute by a decision-maker or a court is prima facie grounds for judicial review, or an appeal by way of case stated, on the basis that the decision is illegal.  
15.	In Akbarali v Brent London Borough Council and other cases [1983] 2 AC 309 at 350, Lord Scarman said: 
"It is now settled law that an administrative or executive authority entrusted with the exercise of a discretion must direct itself properly in law."
I say that that principle applies equally to decisions of courts of first instance.  Here the District Judge made a relevant error of law; namely an error in the decision-making process as to whether there was a case to answer.  Accordingly, this was "an illegal" decision that was, as a result, a nullity and is therefore susceptible to be quashed.  Furthermore, in those circumstances, the concept of autrefois acquit simply does not come into play.  Although the alleged offence was 18 months ago and the trial 9 months ago, and bearing in mind that a young witness may be called at any future trial for the applicant, who was bound over by the District Judge, this was an extremely serious offence in which a knife was used in an aggressive and highly worrying way during what was said to be a racially motivated attack.  
16.	Additionally, B was, on 30th April 2003, convicted of assault occasioning actual bodily harm by the Balham Youth Court and was sentenced to a 6-month detention and training order.  Notwithstanding the delay and the other factors I have referred to, I would remit this case for a rehearing on the basis that it is in the interests of justice for there to be a determination as regards this charge. 
Postscript 
17.	As well as helpfully explaining his reasons, the District Judge went on, in a number of paragraphs in his statement, to make certain observations.  Particularly, the District Judge expressed profound concern at the absence of an alternative charge that alleged an assault simplicitor without the racially aggravating circumstances.  He made this comment particularly because of what he perceived to be the delay between the offensive words being uttered in the shop and the assault which occurred some yards and minutes away, given the requirement that the words used should be at the time the offence was committed or immediately before (section 28(1)(a)).  
18.	Without in any way expressing a view on the merits of this prosecution, it is, in my view, ultimately for the prosecution to determine what are the appropriate charge or charges in a given case.  Here, it seems to me, the Crown Prosecution Service were entitled to conclude there was a sufficiently close nexus between the words used and the assault that occurred only moments later.  Accordingly, as an exercise of their discretion, the prosecution were entitled to seek a conviction on this more serious charge.  It is important that when the facts justify the prosecution adopting this stance as regards this, as indeed other important and grave charges, they should be entitled to present their case on the basis of the graver rather than on the basis of a lesser offence.  
19.	As I say, as I have already observed, it is not for this court to determine the merits of the allegation on the evidence.  I merely observe that the responsibility for determining the appropriate charge rests, certainly in circumstances such as this, with the prosecution alone.  
20.	LORD JUSTICE THOMAS:  I agree.  I only wish to add one observation in the light of a passage in the witness statement of the learned District Judge, Judge Gillibrand, designated District Judge of the South West Magistrates' Court, made in observations to this court.  He said in those observations at paragraphs 10 and 11: 
"Following the discharge of the defendant, I expressed grave concerns about the absence of an alternative charge. I was informed that the CPS had been specifically advised of the very problem that I had identified.  However, the CPS rejected such advice.  It has been brought to my attention subsequently that the CPS deny receiving such advice.  However, prosecuting counsel informed me that at an earlier hearing before the trial she was specifically asked not to add the alternative or accept a plea to it.  I expressed the view that the public, and in particular the complainant, had been very badly served and the decision of the individuals within the CPS showed a high level of incompetence.  That incompetence to be contrasted with the professionalism and competence of the prosecuting counsel who, despite having one hand tied behind her back, managed to act in accordance with the highest tradition of the Bar."  
21.	In fact, for the reasons given by my Lord, the CPS was, in fact, quite correct in the view it had taken of the law.  I wish to say, however, that I think it is important that before a judge considers making any criticism in such strong terms as this (where he characterised the conduct of the CPS as showing "a high level of incompetence") that the judge carefully consider whether the interests of the administration of justice are assisted by the making of such observations.  
22.	That, of course, must be a matter for each judge.  However, before making any such observation, it is plainly the case that fairness dictates that where, in circumstances such as this, there is a difference of recollection between counsel representing the CPS and the CPS, the CPS should be given an opportunity to comment at an appropriate time, taking into account the convenience of the persons at the CPS and the convenience of the court.  In this case that did not happen.  In my view, therefore, it was plainly wrong of the judge to have made such criticisms without having given the CPS an opportunity to comment.  Whether it was right in the circumstances to describe what had happened as "a high level of incompetence", again is a matter upon which the judge should have severely reflected before making such public criticism.  
23.	I wish to direct that a copy of the transcript in this case be sent to the Senior District Judge (Magistrates' Courts) and also to the District Judge concerned.  The case will be remitted to be heard by another District Judge specifically designated by the Senior District Judge Magistrates' Court to hear this case.  It is not to be heard by District Judge Gillibrand.
24.	MS WHITEHOUSE:  My Lord, I do not know if my learned friend was going to raise this.  In view of the age of the interested party, perhaps his identity can be protected. 
25.	LORD JUSTICE THOMAS:  Of course it must be.  This is only to be referred to as DPP v Balham Magistrates' Court, and the person in question called "B".
26.	MR JUSTICE FULFORD:  A final observation, Miss Whitehouse.  I think B is now 18, is that right? 
27.	MR ROQUES:  Yes, my Lord, that is correct.
28.	MR JUSTICE FULFORD:  I thought so.  Can you ensure that this case ultimately ends up in the right court? 
29.	MS WHITEHOUSE:  My Lord, yes. 
30.	LORD JUSTICE THOMAS:  Thank you both very much.  Were you Legally Aided, Mr Roques? 
31.	MR ROQUES:  My Lord, that has been a bone of some contention even this morning. 
32.	LORD JUSTICE THOMAS:  I just wondered if you had omitted to ask for the usual taxation order.
33.	MR ROQUES:  I was certainly going to ask for that order. 
34.	LORD JUSTICE THOMAS:  You can have that, but I cannot give you anything.
35.	MR ROQUES:  I am grateful, my Lord.  I do not think there is an order in place at the moment but I am grateful. 
36.	LORD JUSTICE THOMAS:  I can only add the observation -- it of course in no way binds the authorities, but I think it was right he should have been represented.
37.	MR ROQUES:  I am very grateful for the observation, my Lord.