Babbs, R. v

For the purposes of Crime and Disorder Act 1998, section 28(1)(a), the relevant question is whether racial hostility was demonstrated at the time of the substantive offence or immediately before or after it. The inquiry is not confined to whether racially hostile words were uttered immediately before the assault.

Earlier words may colour later conduct. A jury may find that later hostility remained racially based where the events form a continuing sequence and the earlier words support that inference. Whether the required connection exists is a question of fact for the jury, on a proper direction.

The appellant was convicted at Ipswich Crown Court of racially aggravated assault by beating. He admitted headbutting the complainant but denied using the racially hostile words alleged by the prosecution.

The alleged words were spoken during an earlier confrontation in a restaurant. After an interval estimated at five to 15 minutes, the appellant headbutted the complainant. The defence submitted that the words had not been spoken immediately before the assault and that the aggravated offence was therefore not made out.

The judge rejected that submission and left the issue to the jury. The appellant appealed against conviction, contending both that the case should not have been left to the jury and that the jury had been misdirected.

1. Appeal dismissed. The conviction was safe. The judge was entitled to leave the issue of racial aggravation to the jury.

2. Under section 28(1)(a) of the Crime and Disorder Act 1998, the focus is on the hostility demonstrated towards the victim, rather than solely on the timing of particular words. Earlier racist abuse was capable of colouring the appellant’s subsequent conduct.

3. The jury could properly conclude that the hostility displayed immediately before the assault was based on the same racial hostility shown earlier. On the evidence, the hostility could be regarded as continuing from the earlier abuse until it culminated in violence.

4. Parry v DPP [2004] EWHC 3112 (Admin) illustrated that the required immediacy depends upon a sufficient connection with the substantive offence. Its facts, involving words spoken after the offender had left the scene and in the victim’s absence, did not prevent a jury from finding the necessary connection on the materially different evidence here.

5. Although one part of the summing-up referred simply to whether the words had been spoken immediately before the assault, the judge later correctly directed the jury to decide whether the appellant had demonstrated racially based hostility immediately before assaulting the complainant. That was a factual question for the jury.

• Court of Appeal (Criminal Division): The appeal against conviction was dismissed in [2007] EWCA Crim 2737.
• Crown Court at Ipswich: The appellant was convicted on 28 June 2007 of racially aggravated assault by beating and sentenced on 24 July 2007.