Director of Public Prosecutions v Balham Youth Court

Words describing a person as a “foreigner” may, depending on context, demonstrate hostility towards a racial group defined by nationality or national origins. The group may be identified in a non-inclusive sense, and its size is immaterial. A court commits an error of law if it construes the statutory definition of racial aggravation too narrowly and consequently concludes that there is no case to answer.

A decision resulting from such an error is illegal and a nullity. It may be quashed despite the prior dismissal of the charge, and the principle of autrefois acquit does not prevent a rehearing. The prosecution retains responsibility for selecting the appropriate charge where the facts support a sufficiently close connection between hostile words and the subsequent assault.

The Director of Public Prosecutions challenged the decision of the Balham Youth Court, which dismissed a charge of racially aggravated assault against B on a submission of no case to answer. The prosecution alleged that B assaulted the victim shortly after directing highly abusive words at him, including repeated references to his being a foreigner and returning to his country.

The District Judge held that “foreigner” could not describe a racial group for the purposes of section 28 of the Crime and Disorder Act 1998. The central issues were whether the words were capable of demonstrating hostility based on presumed membership of a racial group, whether the dismissal was legally susceptible to being quashed, and whether a rehearing was barred by autrefois acquit.

1. The appeal was allowed. The Youth Court had erred in law by holding that the words used were incapable of falling within section 28 of the Crime and Disorder Act 1998. Following DPP v M (a Minor), [2004] EWHC 1453 (Admin), words such as “foreigner” may, in context, refer to a group defined by nationality or national origins and may demonstrate hostility towards that group. The reference may be non-inclusive, and the size of the group is immaterial.
2. The error was material because it affected the decision whether there was a case to answer. A misconstruction of a statute by a court of first instance is an error of law and an illegal decision. Applying the principle stated in Akbarali v Brent London Borough Council, [1983] 2 AC 309, the decision was a nullity and could be quashed. Autrefois acquit did not apply to prevent that result.
3. The case was remitted for rehearing before another District Judge. Although the delay and the potential need to call a young witness were relevant, the alleged knife attack was sufficiently serious that the interests of justice required a determination of the charge.
4. The prosecution was entitled to select the more serious charge. It was for the prosecution, rather than the court, to determine the appropriate charge, and the words spoken moments before the assault were capable of having a sufficiently close nexus with it.
5. Lord Justice Thomas added that a judge should not make strong public criticism of prosecuting authorities without first giving them a fair opportunity to address disputed matters. The transcript was directed to be sent to the Senior District Judge, and the identity of B was protected.

1. High Court (Administrative Court): quashed the Balham Youth Court’s dismissal of the charge and remitted the case for rehearing before another District Judge.
2. Balham Youth Court: dismissed the racially aggravated assault charge on a submission of no case to answer. No separate citation was stated.