Jones, R (on the application of) v Bedford and MIS Bedfordshire Magistrates' Court

Racial aggravation under section 28(1)(a) of the Crime and Disorder Act 1998 is established by an objective assessment of whether the defendant demonstrated racial hostility towards the victim. Subjective racial motivation is required under section 28(1)(b), but not under limb (a).

For harassment, the necessary criminal gravity is assessed by considering the course of conduct as a whole. Each individual act need not itself be criminal. Facts proved on a separately charged offence may form part of the course of conduct, provided reliance on them is made clear to the defendant and the result does not produce unfair double punishment.

The defendant faced three charges before the Bedford and Mid Bedfordshire Magistrates’ Court. Charge 1 alleged racially aggravated threatening and abusive behaviour. Charge 2 alleged harassment of Mr Lawson. Charge 3 alleged harassment of Mrs Lawson.

The magistrates acquitted the defendant on charges 1 and 3 and convicted her on charge 2. The Director of Public Prosecutions appealed in relation to charges 1–3. The defendant appealed against her conviction on charge 2. The central issues were the proper construction of section 28(1)(a) and (b) of the Crime and Disorder Act 1998, the gravity required for harassment under the Protection from Harassment Act 1997, and whether facts found on another charge could be considered as part of a course of conduct.

1. Charge 1. The DPP’s appeal was allowed and the case was remitted with a direction to convict. Section 28(1)(a) and section 28(1)(b) create alternative limbs. Limb (a) concerns what the defendant demonstrated towards the victim and applies an objective test. It does not require proof of subjective racial hostility or motivation. Limb (b), by contrast, concerns the defendant’s subjective motivation. The magistrates therefore erred by treating DPP v Howard [2008] EWHC 608 (Admin) as requiring racial motivation under both limbs.
2. The words and behaviour objectively demonstrated hostility towards Mrs Lawson based on her racial group. No remittal for further trial was required because the facts found by the magistrates were sufficient. The discussion in Johnson v DPP [2008] EWHC 509 (Admin), extending Howard to limb (a), was obiter and misapplied the decision in Howard. Its weight was significantly qualified because RG, LT v DPP [2004] EWHC 183 (Admin) had not been cited.
3. Charge 2. The defendant’s appeal was allowed and the case was remitted with a direction to acquit. The gravity requirement identified in Majrowski v Guys and St Thomas’s National Health Service Trust [2006] UKHL 34 concerns the offending course of conduct, not each individual act. A course may therefore consist of repeated acts which would be innocuous or insufficiently serious when considered separately. Context remains relevant, but the two particularised incidents, even taken together in a domestic setting, could not reasonably amount to harassment.
4. The necessary connection between incidents was considered in R v Curtis [2010] EWCA Crim 123, applying the approach in Thomas v News Group Newspapers Ltd [2004] EWCA Civ 1233. A report to the police could in principle form part of harassment through its intended indirect effect, as illustrated by C v CPS [2008] EWHC 148 (Admin).
5. Facts proved on a separately charged offence may form part of the course of conduct, whether or not they result in conviction. Reliance on them should be made clear at the outset so that fairness and duplicity issues can be addressed. Where those facts have already produced a conviction, it is oppressive and unfair to use them to produce a second conviction for harassment.
6. Charge 3. The DPP’s appeal was dismissed because the incident found proved had not been particularised. The court answered the magistrates’ questions accordingly: the facts of charge 1 could be considered on charge 2 after acquittal, but could not produce double punishment after conviction; non-particularised conduct was properly excluded.

High Court (Administrative Court): Appeals by the Director of Public Prosecutions and the defendant from decisions of the Bedford and Mid Bedfordshire Magistrates’ Court. The DPP’s appeal on charge 1 was allowed, the defendant’s appeal on charge 2 was allowed, and the DPP’s appeal on charge 3 was dismissed. The matters were remitted with directions to convict on charge 1 and acquit on charge 2.