Director of Public Prosecutions v Chippendale

A warning is a condition of the statutory power to arrest for a racially aggravated public-order offence, but it is not an ingredient of the offence itself. The warning must identify, in substance, the racially or religiously aggravated nature of the conduct. A general warning about abusive or disorderly behaviour is insufficient for an arrest under section 31(3) of the Crime and Disorder Act 1998, although it may support an arrest for the underlying offence under section 5(4) of the Public Order Act 1986. An unlawful arrest does not prevent the magistrates from hearing and determining the substantive charge where the offence is otherwise made out.

The Director of Public Prosecutions appealed by way of case stated from the decision of Pwllheli Magistrates’ Court on 9 July 2003. The magistrates had dismissed the racially aggravated public-order charge against the respondent after ruling, at the close of the prosecution case, that the constable had not given the warning required by section 31(3)(b) of the Crime and Disorder Act 1998.

The respondent had first been warned about his behaviour after singing a song concerning Scousers. He then sang a racially insulting version referring to Turks outside a Turkish takeaway. The appeal concerned whether the first warning was sufficient and whether a warning was an ingredient of the offence or only a precondition to the statutory power of arrest.

Appeal allowed and case remitted to the magistrates for rehearing.

1. Nelson J held that section 31(3) of the Crime and Disorder Act 1998 concerns the power of arrest. Because section 31(3)(a) refers to conduct reasonably suspected to constitute an offence under section 31(1)(c), the warning required by section 31(3)(b) must relate to the racially or religiously aggravated character of the conduct. A warning about abusive or disorderly behaviour in general is insufficient.

2. The warning requirement is designed to give the offender an opportunity to desist before arrest. It is not, however, an ingredient of the offence under section 31(1). The offence is committed when the defendant commits an offence under section 5 of the Public Order Act 1986 which is racially or religiously aggravated for the purposes of the 1998 Act.

3. The lawfulness of the arrest is distinct from the commission of the offence. An offender may be prosecuted by information and summons where arrest is unavailable or unnecessary. Accordingly, an unlawful arrest and consequent irregularity in the charge did not prevent the magistrates from hearing the substantive allegation and convicting if its ingredients were proved.

4. May LJ agreed. He emphasised the symmetry between sections 5(1) and 5(4) of the Public Order Act 1986 and sections 31(1) and 31(3) of the 1998 Act. He added that the facts found by the magistrates, including the singing of the offensive song within sight of Turkish takeaway staff, raised at least a prima facie case that persons were likely to suffer harassment, alarm or distress.

The court made no order for costs.

1. Pwllheli Magistrates’ Court: on 9 July 2003, acquitted the respondent on a submission of no case to answer.
2. High Court (Administrative Court): allowed the prosecution’s appeal by way of case stated and remitted the case to the magistrates for rehearing.