MARQUETTE CAIN v CROWN PROSECUTION SERVICE

Racial aggravation under section 28(1)(a) of the Crime and Disorder Act 1998 requires an objective assessment of whether hostility was demonstrated towards the victim based on the victim’s racial membership. The court must consider the words used in their context. A racial insult is not automatically decisive, but an offender’s membership of the same racial group as the victim is not a bar. General hostility towards the group is unnecessary. Under section 28(3), it is immaterial that the hostility is also based on another factor, such as criticism of the victim’s conduct. Director of Public Prosecutions v Pal was confined to its particular facts.

The appellant was convicted by the Croydon Magistrates’ Court of racially aggravated intentional harassment, alarm or distress, contrary to section 4A(1) of the Public Order Act 1986 and section 31(1)(b) of the Crime and Disorder Act 1998. The Crown Court dismissed his appeal and stated a question for the High Court.

The appellant had directed a racial insult at a mixed-race police officer while criticising the officer’s lawful detention of a black child. The issue was whether the words demonstrated hostility towards the officer based on his membership of a racial group, despite the appellant being black himself and also criticising the officer’s conduct.

1. Appeal dismissed. The certified question was amended to ask whether it was properly open to the Crown Court to find that the offence was racially aggravated. The answer was yes.
2. Section 28(1)(a) requires an objective assessment of whether the offender demonstrated hostility based on the victim’s membership or presumed membership of a racial group. The words used must be considered with the surrounding circumstances and context. The mere use of a term capable of being racially abusive is not necessarily decisive.
3. The offender’s membership of the same racial group as the victim is an important contextual fact, but it is not a legal bar. The prosecution need not prove general hostility towards the racial group. Hostility directed at the individual because of their racial membership is sufficient.
4. Section 28(3) makes it immaterial that the hostility is also based on another factor, such as anger about the victim’s conduct.
5. The words used could properly be understood as criticising the officer as a black man for behaving in a way the appellant regarded as unacceptable for a black man. They therefore demonstrated hostility based on the officer’s race and were not merely criticism of conduct.
6. The reasoning relied on from Pal overlooked the combined effect of sections 28(1)(a) and 28(3). Pal was confined to its precise facts and circumstances. The court did not need to decide the alternative argument based on presumed association with white persons under section 28(2).

• Croydon Magistrates’ Court: convicted the appellant on 11 December 2020.
• Crown Court at Inner London: dismissed the appeal on 9 April 2021 and stated a question for the High Court.
• High Court (Administrative Court): answered the amended question “Yes” and dismissed the appeal.