Hewlett, R. v

A term referring pejoratively to Romany gypsies is capable of amounting to hostility based on membership, or presumed membership, of a racial group. Romany gypsies are capable of recognition as a racial group by ethnic origin. It is immaterial that the victim is not in fact a member of that group where the defendant is alleged to have presumed that she was.

Words seeking to make a witness alter an account may be capable of attempted witness intimidation if, with the requisite intent, they are used to obstruct, pervert or interfere with the course of justice. Whether the words were spoken and used with that intent is ordinarily for the jury.

The applicant was convicted at Guildford Crown Court of racially aggravated intentional harassment, alarm or distress and attempted witness intimidation. The allegations arose from a long-running neighbour dispute. The prosecution alleged that he used a pejorative term for a gypsy towards his neighbour and later aggressively sought to make a housing-trust employee withdraw his witness statement.

A jury acquitted him on one count but convicted him on the remaining two counts. He received a 12-month community order with 200 hours of unpaid work. A single judge refused permission to appeal. On renewal, he challenged the racial-group issue, the legal sufficiency of the attempted-intimidation count, trial management, alleged judicial bias, and his trial counsel's conduct.

1. The renewed application for permission to appeal was refused. None of the proposed grounds was arguable.

2. The trial judge correctly rejected the submission of no case to answer on the racially aggravated harassment count. Under Crime and Disorder Act 1998, a racial group includes one defined by ethnic origin. Commission for Racial Equality v Dutton [1989] QB 783 established that Romany gypsies may be recognised as such a group. If the jury accepted that the applicant called the complainant a “pikey”, the term was capable of being a pejorative reference to that group. Actual membership was unnecessary because there was evidence that he presumed she was a gypsy. The judge's directions on the elements of the offence were appropriate.

3. The witness's evidence that he was not actually intimidated properly led to amendment of the count to attempted witness intimidation, consistently with R v NZ [2013] 2 Cr App R(S) 25. If the jury were sure that the alleged words were used, they were capable of constituting that offence, provided it was also sure that the applicant intended to obstruct, pervert or interfere with the course of justice. The judge correctly directed the jury and supplied a lawful written route to verdict.

4. The remaining complaints disclosed no unfairness. The judge permissibly confined extensive evidence about the boundary dispute to what was needed for context, ensured that the material discrepancy in the witness's evidence was before the jury, and permitted recalled prosecution witnesses to address the defence sister's asserted presence. The summing-up revealed no bias, and there was no arguable criticism of trial counsel.

5. The court ordered the applicant, under section 18(6) of the Prosecution of Offences Act 1995, to pay £40 towards the reasonable cost of the transcript.

• Court of Appeal (Criminal Division): renewed application for permission to appeal against conviction refused in [2016] EWCA Crim 673.
• Single judge of the Court of Appeal: refused the original application for permission to appeal.
• Guildford Crown Court: the applicant was acquitted on one count and convicted of racially aggravated intentional harassment, alarm or distress and attempted witness intimidation; he received a 12-month community order with 200 hours of unpaid work.