HSK v Crown Prosecution Service

For an offence to be racially aggravated under section 28(1) of the Crime and Disorder Act 1998, the prosecution must prove either that the offender demonstrated hostility based on the victim’s membership or presumed membership of a racial group, or that the offence was motivated by such hostility. Where offending involves a group, proof that one group member expressed racial hostility and that the attack as a whole was racially motivated does not, without more, prove the individual defendant’s statutory demonstration or motivation. The tribunal must make a finding that the defendant himself satisfied one of the statutory limbs. On an appeal by case stated, the High Court is bound by the stated facts and findings. An extension of time may be granted by evaluating the seriousness and reason for the default together with all the circumstances, including the appellant’s personal responsibility and the apparent merits of the appeal.

The appellant, a child, pleaded guilty to unlawfully and maliciously wounding the victim, contrary to section 20 of the Offences against the Person Act 1861. He was later convicted of a racially aggravated version of that offence and made subject to a Youth Rehabilitation Order.

He applied out of time to appeal by way of case stated. The delay resulted from changes affecting his legal representation. The central questions were whether time should be extended and whether the Youth Court had been entitled to convict on findings that a group attack was racially motivated, while the court could not identify which participant had uttered the racially hostile words or find that the appellant himself had the necessary motivation.

1. Extension of time. The court granted an extension under CPR 52.15 and CPR 3.1. Applying the approach in Denton v TH White, as relevant to appeals by case stated through Halcrow v Crown Prosecution Service, the delay was a serious breach and the change of employment of the solicitor was not a good reason. The court nevertheless evaluated all the circumstances. The appellant was young, had been a Child in Need, had depended on his solicitor to lodge the notice, had attempted to appeal from conviction and had apparent merit in the appeal. Those matters outweighed the competing interests of the victim and the procedural disadvantage of further factual clarification.
2. Statutory test. Section 28(1) of the Crime and Disorder Act 1998 contains two alternative limbs: demonstration of hostility towards the victim based on actual or presumed racial membership, and motivation of the offence by hostility towards members of a racial group. Demonstration is assessed objectively; motivation requires findings about the offender’s state of mind.
3. Application to group offending. The Youth Court was entitled to find that a group attack had occurred, that racial words had been uttered by a member of the group, and that the speaker had assumed the victim was of Chinese heritage. But it expressly could not identify the speaker and did not find either that all members of the group shared the necessary motivation or that the appellant did. The finding that some or all of the group had the necessary intention was insufficient. It was therefore impossible to infer beyond reasonable doubt that the appellant’s own attack was racially aggravated.
4. Disposition. The answer to the case-stated question was no. The appeal was allowed and the conviction for the racially aggravated offence was replaced by a conviction for the section 20 offence, to which the appellant had pleaded guilty.

High Court (Queen’s Bench Division, Divisional Court): appeal by way of case stated from the Justices of the North and Central London Youth Panel sitting at Highbury Corner Youth Court. The appeal was allowed and the conviction for the racially aggravated offence was replaced by a conviction for the section 20 offence.