Director of Public Prosecutions v M (A Minor)

Under section 28 of the Crime and Disorder Act 1998, a racial group may be defined by nationality or national origins. The group need not be inclusively identified, and its size is immaterial. Depending on context, “foreigners” may denote such a group.

For demonstrated racial hostility under section 28(1)(a), the prosecution need show conduct capable of demonstrating hostility based on presumed membership of the group. It need not prove that racial hostility was the sole or principal motivation. Other motives are immaterial under section 28(3) and may coexist with racial hostility.

The Director of Public Prosecutions appealed by case stated from the decision of the South and South East Hampshire Combined Youth Court. The respondent, aged 16 at the relevant time, had been charged with racially aggravated criminal damage after breaking a kebab shop window shortly after using the words “bloody foreigners” during a dispute with a chef.

The magistrates found no case to answer. They considered that the words might refer to the chef’s foreign origin but were insufficiently connected with a racial group and that the conduct might instead have resulted from the dispute over payment. The central issues were whether “foreigners” could denote a racial group under section 28(4), and whether the alternative explanation prevented a case under section 28(1)(a).

1. Appeal allowed. The magistrates’ answers to both questions in the case stated were wrong. The matter was not remitted because of the passage of time.
2. Section 28(4) gives “racial group” a broad, non-technical meaning. A group may be defined by reference to nationality or national origins. The expression need not identify an inclusive group. The size of the group is immaterial. Accordingly, “foreigners” was capable, in context, of denoting a racial group consisting of persons defined by nationality or national origins.
3. The prosecution relied on section 28(1)(a), which concerns demonstrated racial hostility at the time of, or immediately before or after, the offence. The magistrates wrongly elided that provision with section 28(1)(b), which concerns motivation. The distinction was material because the prosecution did not need to establish that the offence was motivated by racial hostility.
4. Section 28(3) makes it immaterial whether hostility is also based on another factor. The respondent’s annoyance over the payment dispute could therefore coexist with hostility based on presumed membership of a racial group. It did not justify treating the racial element as merely conjectural.
5. On the facts found, the words “bloody foreigners” were capable of demonstrating hostility based at least partly on presumed membership of the relevant racial group. The adjective “bloody” was capable of supplying the hostile element. The magistrates’ findings did not entitle them to conclude that there was no case to answer.

Mr Justice Richards agreed. An order was made under section 39 of the Children and Young Persons Act to protect the respondent’s identity, and legal aid taxation was directed.

• High Court (Administrative Court): Appeal by case stated allowed. The magistrates’ decision was held unsound in law and was not remitted.
• South and South East Hampshire Combined Youth Court: The respondent was found to have no case to answer and the charge was dismissed.