Director of Public Prosecutions, R (on the application of) v Dykes

For a racially aggravated offence, the prosecution may rely on either or both limbs of section 28(1) of the Crime and Disorder Act 1998. Section 28(1)(a) concerns hostility demonstrated towards the victim and ordinarily requires the victim’s presence. Section 28(1)(b) concerns the offender’s motivation and may be established even where the person referred to is absent. Magistrates must address each limb separately. The number of racist remarks, the absence of persons from the relevant racial group, and the witnesses’ reaction to other misconduct do not determine whether the offence is aggravated. However, an appellate court should not substitute a conviction where the factual findings leave a real possibility that the offence was motivated by a non-racial reason.

The Director of Public Prosecutions appealed by case stated against the respondent’s acquittal by Lincolnshire Justices of racially aggravated threatening behaviour. The respondent had been convicted of the underlying offence under section 5 of the Public Order Act 1986. During an incident at a hospital, he used a racial insult referring to an absent doctor, but the magistrates considered that the incident was principally caused by his anger at being required to leave.

The central issues were whether the magistrates had misdirected themselves under section 28(1) of the Crime and Disorder Act 1998, and whether the acquittal should be replaced by a conviction or remitted for reconsideration.

1. The magistrates materially misdirected themselves. They treated the incident as a whole, placed weight on the fact that the racial insult was used only once, noted that the doctor and other persons of the relevant ethnic origin were absent, and focused on the witnesses’ reaction to the general antisocial behaviour. Those matters did not answer whether either statutory limb was satisfied.
2. Section 28(1)(a) requires proof that, at the time of the offence or immediately before or afterwards, the offender demonstrated hostility towards the victim based on the victim’s membership or presumed membership of a racial group. On the facts, that limb was not engaged because the person referred to was absent.
3. Section 28(1)(b) is concerned with motivation. The offence must have been motivated wholly or partly by hostility towards members of a racial group. Unlike paragraph (a), this limb is not confined to hostility demonstrated towards a present victim. The prosecution may rely on both limbs, where the evidence permits.
4. The authorities, including Selena Taylor v The Director of Public Prosecutions [2006] EWHC 1202 (Admin), RG, LT v The Director of Public Prosecutions [2004] EWHC 183 (Admin) and Director of Public Prosecutions v Howard [2008] EWHC 608 (admin), illustrated the distinction between demonstrated hostility and racial motivation. A racial insult may provide evidence of motivation, but it does not establish the necessary motivation if the offence was in fact motivated by something else.
5. Although the magistrates’ reasoning was flawed, the factual findings did not make a conviction inevitable. The respondent’s anger might have been caused by being required to leave the hospital, rather than by racial hostility. The appeal was therefore formally dismissed.

1. Lincolnshire Justices, Boston Magistrates’ Court: convicted the respondent of threatening behaviour under section 5 of the Public Order Act 1986 but acquitted him of the racially aggravated offence.
2. High Court (Administrative Court): dismissed the prosecution’s appeal by case stated. The court held that the magistrates had misdirected themselves but that conviction was not the only possible conclusion on the facts.