Attorney General's Reference No 4 of 2004 (D) Under Section 36 of the Criminal Justice Act 1972

An immigrant or non-British person may be a member of a racial group for the purposes of Crime and Disorder Act 1998, section 28(4). The statutory definition permits a group to be identified non-inclusively, including by exclusion from British nationality or origins.

Whether an epithet such as immigrant doctor demonstrates hostility based on membership, or presumed membership, of such a group depends on its context. Where the evidence is capable of satisfying section 28(1)(a), the issue is one for the jury and should not be withdrawn merely because the expression does not identify a more particular racial group.

Mrs D was tried at Luton Crown Court for racially aggravated assault by beating, contrary to section 29(1)(c) of the Crime and Disorder Act 1998. The allegation was that, immediately before assaulting Dr N, her general practitioner, she referred to him as an immigrant doctor.

The judge directed an acquittal at the close of the prosecution case. He considered that immigrant, meaning non-British, could not identify a racial group within section 28(4). The Attorney General referred the point of law to the Court of Appeal under section 36 of the Criminal Justice Act 1972.

The central issue was whether use of immigrant was capable of demonstrating hostility based on the victim’s membership, or presumed membership, of a racial group.

1. The reference was answered in the Attorney General’s favour. The trial judge erred in ruling that a person who is an immigrant to the United Kingdom and therefore non-British cannot, as such, be a member of a racial group within section 28(4) of the Crime and Disorder Act 1998.

2. The definition of racial group is deliberately broad. It includes groups defined by reference to nationality, including citizenship, and national origins. A group need not have narrow or specific common characteristics. A non-inclusive group, identified by exclusion from British nationality or origins, may satisfy the definition.

3. The court adopted and applied the reasoning in DPP v M (A Minor) [2004] EWHC 1453 (Admin). The word foreigner could, according to its context, refer to a racial group. The even broader scope of that term did not prevent the statutory definition applying. The size of the group was immaterial.

4. The expression immigrant doctor had to be assessed in the circumstances in which it was used. The jury could conclude that it was no more than an allegation of non-Britishness. Equally, it could conclude that it demonstrated hostility based on the doctor’s perceived race, colour, nationality, ethnic origins or national origins. That was a question of fact under section 28(1)(a), not a point to be determined solely by construing the word immigrant in isolation.

5. The judge should therefore have left the charge to the jury as capable of amounting to a racially aggravated offence.

• Court of Appeal (Criminal Division): On a reference under section 36 of the Criminal Justice Act 1972, held that the Crown Court judge had erred and that the issue was capable of being left to the jury.
• Luton Crown Court: The judge directed Mrs D’s acquittal at the close of the prosecution case on a charge under section 29(1)(c) of the Crime and Disorder Act 1998.