Valentine, R. v

For racial aggravation under section 28(1)(a) of the Crime and Disorder Act 1998, the person towards whom hostility is demonstrated must be the victim of the underlying offence. Where the underlying offence is intentional harassment, alarm or distress under section 4A of the Public Order Act 1986, the recipient of abusive words is not necessarily that victim.

If the prosecution case does not establish distress to the recipient, but establishes it to another person, racial hostility directed only at the recipient cannot establish aggravation under section 28(1)(a). A conviction for the aggravated offence is then unsafe, although the Court of Appeal may substitute a conviction for the proved basic offence.

The appellant was convicted at Kingston-upon-Thames Crown Court of religiously aggravated intentional harassment, alarm or distress on count 1, and racially aggravated intentional harassment, alarm or distress on count 2. Count 2 arose from an abusive racial remark addressed to the complainant’s mixed-race son. The Crown case established distress to the mother, but advanced no evidence of the effect on the child.

After the evidence, the indictment was amended so that the alleged racial hostility was directed towards the child. On appeal, the central issue was whether the child could nevertheless be treated as the victim for the racial-aggravation limb of the offence.

1. The appeal was allowed in part. The conviction on count 2 for the racially aggravated offence was quashed. A conviction for the basic offence under section 4A of the Public Order Act 1986 was substituted. The appeal against count 1 was dismissed.
2. Section 31(1)(b) of the Crime and Disorder Act 1998 requires an underlying section 4A offence which is racially or religiously aggravated. Under section 28(1)(a), hostility must be demonstrated towards the victim of the offence. That victim must be the victim of the underlying section 4A offence.
3. On the Crown case and the judge’s directions, no distress to the child was alleged or proved. The child could therefore not be the victim of the underlying offence. The evidence established that the abusive remark was addressed to him, while the mother suffered the relevant distress. The direction invited the jury to find racial aggravation from hostility towards the child, who was not that victim. Although the evidence was capable of supporting the alternative, motivation-based form of aggravation in section 28(1)(b), that form was not charged in either version of count 2.
4. The late amendment to the indictment compounded the lack of clarity. The count 2 conviction was consequently unsafe. The jury’s findings nevertheless established the basic section 4A offence, so the court exercised its power under section 3 of the Criminal Appeal Act 1968 to substitute that conviction.
5. The failure of the aggravated count did not render count 1 unsafe. The counts had been properly joined, the evidence was distinct, and the jury had been directed to consider each count separately. The court substituted concurrent nine-month community orders, reducing the original sentence.

• Court of Appeal (Criminal Division) In [2017] EWCA Crim 207, the court quashed the racially aggravated conviction on count 2, substituted the basic section 4A offence, dismissed the appeal on count 1, and reduced the community order.
• Crown Court at Kingston-upon-Thames On 11 May 2016, following a jury trial before Judge Dogson, the appellant was convicted on two aggravated public-order counts. On 1 June 2016, she received a 12-month community order, a restraining order, costs and a victim surcharge.