Johnson v Director of Public Prosecutions

Words may be capable of being threatening, abusive or insulting, and capable of causing harassment, alarm or distress, even though whether the statutory tests are satisfied in the particular circumstances is ordinarily a question of fact. Words referring expressly to colour and directing white persons to leave a black area may be capable of demonstrating racial hostility. A conviction may stand where hostility is based partly on race and partly on another matter, such as the victims’ occupation or duties. It is sufficient that racial hostility forms part of the basis of the hostility; it need not be the sole basis.

The claimant was convicted by Sheffield Magistrates’ Court of the racially aggravated form of an offence under section 5 of the Public Order Act 1986. The conviction relied on words spoken to two white parking attendants, including references to white areas and to a black area. The Sheffield Crown Court dismissed his appeal.

On a further appeal by way of case stated, the High Court considered whether the words were capable of satisfying the section 5 requirements, whether they were capable of demonstrating hostility based on racial group membership under section 28(1)(a) of the Crime and Disorder Act 1998, and whether mixed racial and occupational hostility was sufficient.

1. Outcome. The appeal was dismissed. The first three questions were answered yes. The fourth question was answered on the basis that hostility need only be based in part on racial-group membership.
2. Section 5 requirements. Under section 5 of the Public Order Act 1986, whether words are capable of being threatening, abusive or insulting, and capable of causing harassment, alarm or distress, is a question of law. Whether the words in fact have those qualities in their particular context is primarily a question of fact for the tribunal of fact. The Crown Court was entitled to rely on the claimant’s angry, aggressive and threatening manner and the attendants’ resulting distress.
3. Racial hostility. The words were capable of demonstrating racial hostility because they presented the dispute in terms of colour, referred to the black community and white areas, and were addressed by a black person to two white persons. Whether the claimant in fact demonstrated racial hostility, rather than hostility based only on the attendants’ occupation, remained a question of fact. The Crown Court had an adequate evidential basis for finding racial hostility.
4. Mixed motives. Section 28(3) of the Crime and Disorder Act 1998 made it immaterial that the hostility was also based on another factor. Hostility directed partly at the attendants as parking attendants and partly at their presumed racial-group membership was sufficient.
5. Qualification. Words may be capable of demonstrating racial hostility even where the tribunal finds that no racial hostility was actually demonstrated. The court referred by way of example to Director of Public Prosecutions v Howard. That qualification did not assist the claimant because the Crown Court had found actual racial hostility and that finding was supported by the evidence.

• Sheffield Crown Court: dismissed the claimant’s appeal from his conviction by Sheffield Magistrates’ Court.
• High Court (Administrative Court): heard a further appeal by way of case stated and dismissed the appeal.