RG & Anor v Director Of Public Prosecutions

Racial aggravation may be established under either or both limbs of section 28(1) of the Crime and Disorder Act 1998. Under section 28(1)(a), a defendant may demonstrate racial hostility by joining a group whose conduct displays such hostility, where the defendant’s participation goes beyond mere presence. Under section 28(1)(b), racial motivation may be proved by evidence of conduct on other occasions, including conduct outside the period charged. A failure to hold an identification parade does not automatically require exclusion of otherwise compelling and untainted identification evidence. At sentence, the court is confined by the offence charged and proved. Racial aggravation withdrawn by agreement cannot later be used to increase sentence.

The claimants were convicted in the Youth Court of offences arising from harassment of a Somali family and a subsequent fight in a library. RG was convicted of racially aggravated harassment, racially aggravated common assault and affray. LT was convicted of common assault and affray after racial aggravation had been removed from the charges.

The appeals by case stated concerned the meaning and application of section 28 of the Crime and Disorder Act 1998, the use of identification evidence where no parade had been held, and whether racial aggravation could increase LT’s sentence for affray under section 153 of the Powers of Criminal Courts (Sentencing) Act 2000.

1. Racial aggravation. The court held that section 28(1)(a) concerns what the offender did or said so as to demonstrate racial hostility. A defendant may demonstrate hostility by joining a group displaying racial hostility where the defendant’s adherence goes beyond mere presence and amounts to association with the group’s conduct.
2. Section 28(1)(b) concerns the defendant’s state of mind. Evidence of racial hostility on other occasions may be used to prove that an offence was wholly or partly motivated by racial hostility, even where those occasions fall outside the period specified in a harassment charge. The prosecution may rely on either limb, or both, although it should make clear the basis on which it proceeds where appropriate.
3. RG’s consistent participation in the hostile group was sufficient to associate him with its racial hostility. His appeals against conviction were dismissed.
4. Identification evidence. Following R v Forbes [2001] 1 AC 473, failure to hold an identification parade where identification is disputed breaches Code D but does not automatically require exclusion of other evidence. Compelling and untainted identification evidence may be admitted, and the tribunal may assess conflicting identification evidence. LT’s appeal against conviction was dismissed.
5. Sentence. Section 153 of the Powers of Criminal Courts (Sentencing) Act 2000 permits racial aggravation to increase sentence only within the ambit of the offence charged and proved. Because racial aggravation had been withdrawn from LT’s charges by agreement, the District Judge could not rely on it at sentence. LT’s sentence appeal was allowed to the extent that the 18-month supervision order was reduced to 12 months; the parenting order remained.

High Court (Administrative Court): Appeals by case stated from convictions and sentence imposed by District Judge Katharine Marshall sitting in the Brent Youth Court. RG’s appeal was dismissed. LT’s conviction appeal was dismissed, but his sentence appeal was allowed in part and remitted for reduction of the supervision order.