SH, R. v

For racial aggravation under section 28(1)(a) of the Crime and Disorder Act 1998, the issue is an outward demonstration of hostility based on race, not the offender’s inward motivation. Other causes of anger or personal dislike do not preclude the offence. Whether words amount to racial hostility rather than mere vulgar abuse is ordinarily a question for the jury on all the evidence.

Where the prosecution gives notice of an appeal against a terminating ruling under the Criminal Justice Act 2003, that ruling and steps taken in consequence of it have no effect while the appeal is pursued. The trial judge must address expedition under the statutory procedure and cannot direct acquittals in consequence of the suspended ruling.

The Crown appealed rulings made at the Crown Court at Woolwich during SH’s jury trial for racially aggravated fear or provocation of violence. The judge withdrew that count for want of a case to answer, despite the prosecution’s immediate notice of appeal. He then directed acquittals on both that count and an alternative basic public-order count, and ordered the Crown Prosecution Service to pay the prosecution costs.

The Crown contended that the judge had confused demonstration of racial hostility with racial motivation. It also challenged the purported acquittal on the alternative count and the costs order. The central issues were the correct application of section 28 of the Crime and Disorder Act 1998 and the consequences of a Crown appeal against a terminating ruling under the Criminal Justice Act 2003.

1. The Crown’s appeal was allowed. The judge’s ruling that there was no case to answer on the racially aggravated count was wrong. Section 28(1)(a) of the Crime and Disorder Act 1998 concerns the outward demonstration of hostility based on the victim’s racial membership. It does not require proof that race was the offender’s sole or partial inward motivation. Section 28(3) makes another source of hostility immaterial.

   On the prosecution evidence, repeated angry references to a Nigerian complainant as a “monkey” or “black monkey” were capable of amounting to an outward manifestation of racial hostility. The alternative possibility of anger, personal dislike or vulgar abuse did not remove the issue from the jury. Whether the language demonstrated racial hostility was a factual question for the jury on all the evidence.

2. Once the prosecution notified the court of its intention to appeal, the terminating ruling had no effect under section 58 of the Criminal Justice Act 2003. The judge was required by section 59 to decide whether the appeal should be expedited and then to adopt the authorised course for the continuing trial. He could not direct the jury to acquit on the suspended ruling.

   The purported acquittal on the alternative basic offence was also ineffective. The jury could consider that basic offence only after an effective acquittal on the racially aggravated offence under section 31(6) of the Crime and Disorder Act 1998. The separately added count was, moreover, summary-only and outside the Crown Court’s jurisdiction. The costs order followed the ineffective terminating ruling and was likewise ineffective.

3. The court reversed all three decisions under section 67 of the Criminal Justice Act 2003. As SH did not contend that a fair trial was impossible, it ordered a fresh trial at Woolwich before a different judge. Count 2 was expected to be quashed for want of jurisdiction.

4. Although unnecessary to the disposal, the court reiterated that a judge who finds a case to answer should not invite a jury to stop the case. The practice creates serious risks of unfairness. Judges may express measured views about a prosecution, but charging discretion belongs to the CPS. Resource pressures do not permit a court to disregard Parliament’s criminal process or established law.

• Court of Appeal (Criminal Division): The Crown’s appeal was allowed. The purported acquittals and costs order were declared ineffective, and a fresh trial was ordered: [2010] EWCA Crim 1931.
• Crown Court at Woolwich: His Honour Judge Shorrock withdrew the racially aggravated count, directed purported acquittals on both counts, and ordered the CPS to pay costs. Those decisions were reversed.