Attorney General's Reference Nos 86, 87 & 88 of 2004

Sentencing for racially aggravated violence must reflect both the underlying violence and the separate seriousness of the racial hostility. For racially aggravated assault occasioning actual bodily harm or grievous bodily harm, the racial element may justify an uplift of up to two years. The appropriate uplift depends on all the circumstances, including the nature, duration and setting of the hostile conduct and the numbers involved.

Where an Attorney General’s Reference establishes that a sentence was unduly lenient, the Court of Appeal must nevertheless allow for the offenders’ double jeopardy when fixing substituted sentences.

Three offenders pleaded guilty at Sheffield Crown Court to racially aggravated grievous bodily harm after a group attack on two Turkish men following an England–Turkey football match. The principal victim suffered a fractured skull requiring a titanium plate. Sellars also pleaded guilty to racially aggravated assault occasioning actual bodily harm.

Each offender received two years’ imprisonment for the racially aggravated grievous bodily harm. Sellars received a consecutive year for the further assault. The Attorney General referred the sentences under section 36 of the Criminal Justice Act 1988 as unduly lenient, contending that the sentencing judge had failed to reflect the racial aggravation.

1. The Attorney General’s Reference was allowed. The two-year sentences for racially aggravated grievous bodily harm were unduly lenient because they failed adequately to reflect the racial element of the offending.

2. The violence was grave. It was an unprovoked group attack upon a lone and defenceless victim, involving repeated kicking and stamping while he was on the ground, and it caused very serious injury. The court also treated the defendants’ guilty pleas, limited histories of violence, remorse and personal mitigation as relevant.

3. Saunders [2000] 1 Cr.App.R 458 showed that racially aggravated assault occasioning actual bodily harm or grievous bodily harm may require an uplift of up to two years over the sentence for the violence alone. The amount depends on the circumstances. Here, although the court accepted the Attorney General’s concession that two years was the starting point for the section 20 offence in this reference, it considered that concession generous in light of the attack’s seriousness.

4. An uplift of 18 months was appropriate for the racial aggravation. The proper sentence for each offender for racially aggravated grievous bodily harm was therefore three and a half years. To reflect double jeopardy in an Attorney General’s Reference, that term was reduced to three years.

5. Broad and Matthews each received substituted sentences of three years. Sellars also received three years for that offence; his consecutive one-year sentence for racially aggravated assault occasioning actual bodily harm remained, producing a total of four years.

• Court of Appeal (Criminal Division): On the Attorney General’s Reference, the court held that the Crown Court sentences were unduly lenient and substituted increased sentences.
• Sheffield Crown Court: On 7 June 2004, the offenders received two years’ imprisonment for racially aggravated grievous bodily harm. Sellars received a consecutive year for racially aggravated assault occasioning actual bodily harm.