Director of Public Prosecutions v Howard

Racially offensive words may provide evidence that an offence was motivated, wholly or partly, by hostility towards a racial group. They do not establish a racially aggravated offence under section 28(1)(b) of the Crime and Disorder Act 1998 where the words were not themselves any part of the motivation for the particular offence. The racial group need not be identifiable through the victim, and the hostility may be directed generally towards members of the group. At the close of the prosecution case, the question is whether the evidence could reasonably support a conviction if no further evidence were called, not whether guilt has already been proved beyond reasonable doubt.

The Director of Public Prosecutions appealed by way of case stated from the decision of Stockport Magistrates’ Court. The respondent had used racially offensive words towards two off-duty police officers and was charged with an offence under section 5 of the Public Order Act 1986, alleged to be racially aggravated under section 28(1)(b) of the Crime and Disorder Act 1998.

The magistrates concluded that the evidence showed hostility towards the particular victims, rather than hostility towards a racial group, and found insufficient evidence of racial motivation. The central issues were whether the words used could themselves evidence the required motivation and whether an identifiable victim belonging to the relevant racial group was necessary.

1. Appeal dismissed. The magistrates were entitled to conclude that no properly directed magistrates could find that the offence was motivated, even partly, by hostility towards a racial group.
2. At the close of the prosecution case, the question was whether, assuming no further evidence, a properly directed tribunal could reasonably convict. The magistrates had expressed the issue as one of evidential capacity, and their fuller reasons were not inconsistent with that approach.
3. Section 28(1)(b) requires attention to the motivation for the particular offence. The choice of racially abusive words may demonstrate hostility towards a racial group and may show that racial hostility formed part of the motivation. However, where the evidence establishes that the words were used solely because of hostility towards particular victims, the statutory requirement is not met.
4. The victim need not be a member of, or identifiable as a member of, the racial group towards which hostility is directed. General hostility towards members of that group is sufficient. This follows from the language of section 28(1)(b), contrasted with section 28(1)(a).
5. The court observed that prosecutors should avoid deploying the racial-aggravation provisions where offensive words were not part of the motivation for the offence. Unnecessary use of the provisions may diminish the gravity of the aggravated offence.
6. Question 1 was answered “No” and question 2 was answered in the affirmative. Costs were ordered against the Director of Public Prosecutions.

• High Court (Administrative Court): The appeal by way of case stated from Stockport Magistrates’ Court was dismissed. The magistrates’ answers were upheld and costs were ordered against the Director of Public Prosecutions.