R v Anthony Delroy WHITE [2001] EWCA Crim 216

IN THE COURT OF APPEAL
(CRIMINAL DIVISION)
[2001] EWCA Crim 216Case No Case No: 2000/06983/W4Venue Royal Courts of Justice, Strand,, London, WC2A 2LL
Between
RAnthony Delroy WHITE
Before
Lord Justice PillMr Justice PitchfordTrevor Bryan Siddle & Mr. D. Penny for the AppellantRichard Duncan Atkinson for the CrownDate 14 February 2001

LORD JUSTICE PILL:

On

[1]13 November 2000 in the Crown Court at Blackfriars before Mr Recorder Lafferty and a jury Anthony Delroy White was convicted by a majority of 10 to 2 of an offence of racially aggravated fear or provocation of violence. On 4 December he was sentenced to 9 months imprisonment. He had been acquitted, by direction of the Recorder, of attempted theft. He appeals against conviction by leave of the single judge.[2]Fatama Turay is from Sierra Leone, West Africa, and is employed as a bus conductress. On 14 July 2000, she was working on a bus travelling from Putney to Tottenham Court Road. The appellant boarded the bus and sat between two female passengers on one of the bench seats at the back of the bus. Mrs Turay believed that she saw him putting his hand into the handbag of one of the women. That evidence formed the basis for the count of attempted theft of which the appellant was acquitted. However, it was alleged that, when leaving the bus, the appellant's conduct towards the conductress amounted to an offence under section 4 of the Public Order Act 1986 ("the 1986 Act"). The allegation was that the appellant used towards the complainant threatening abusive or insulting words or behaviour with intent to cause that person to believe that immediate unlawful violence would be used against her. It was further alleged, and this is the point now in issue, that the appellant was guilty of an offence under section 31 of the Crime and Disorder Act 1998 ("the 1998 Act"). That section provides amongst other things that "a person is guilty of an offence under this section if he commits an offence under section 4 of the [1986 Act] (fear or provocation of violence) which is racially aggravated for the purposes of this section". Section 28 of the 1998 Act provides, insofar as is material,:
"(1) An offence is racially aggravated for the purposes of sections 29 to 32 below if— (a) at the time of committing the offence, or immediately before or after doing so, the offender demonstrates towards the victim of the offence hostility based on the victim's membership (or presumed membership) of a racial group; … (2) In subsection (1)(a) above— 'presumed' means presumed by the offender. (4) In this section 'racial group' means a group of persons defined by reference to race, colour, nationality (including citizenship) or ethnic or national origins."
[3]The terminology has its origins in the International Convention on the Elimination of all forms of Racial Discrimination (1966). Article 1 refers to "race, colour, descent or national or ethnic origin".[4]Amongst the insulting behaviour alleged was an allegation that the appellant referred to the complainant as an "African bitch". He was aggressive and abusive and also called her a "stupid bitch, stupid fool". She claimed that he threatened to kill her and felt frightened. In view of the points taken on this appeal, there is no need to set out in more detail the alleged conduct of the appellant, save when we consider the fourth ground of appeal.[5]The appellant denied most of the alleged conduct. However, he admitted calling the complainant a "stupid African bitch".[6]At the close of the prosecution case, it was submitted that there was no case to answer because the expression "African bitch" used when committing the section 4 offence did not demonstrate towards the complainant hostility based on her membership of a racial group. It was submitted that the reference to "African" was not a reference to race, colour, nationality or ethnic or national origin or any of them.

The Recorder ruled:

"… [The] offence is racially aggravated because at the time of committing that offence he demonstrated a hostility towards the victim based on the fact that she was African and he perceived her to be African, and it does seem to me that the section is defined in sufficiently wide terms to allow "
African" to fall within the section as elaborated by the subsection and that Parliament didn't intend this to construe very narrowly, almost in mediaeval scholastic manner, which particular group or word covered the particular facts of the case … ." The Recorder added that in his view the word "African" "would fall within 'race' or 'ethnic', if I needed to cite that".[8]It is that ruling which, in the submission of Mr Siddle for the appellant, is wrong in law. Subject to the challenge to the ruling, no complaint is made about the summing-up. The prosecution do not seek to rely, for the purposes of sections 28 and 31, on other words uttered by the appellant.[9]Mr Siddle submits that, however unpleasant, the expression "African bitch" does not involve an imputation of membership of a "racial group" within the meaning of that term in section 28 of the 1998 Act. There is no dispute that it cannot refer to nationality or national origins, the continent of Africa being the site of many states. Mr Siddle submits that, given the breadth of colours, religions, cultures and traditions present in Africa, the word African also fails the test of race, of colour and of ethnicity. It is capable of covering individuals from Cairo to the Cape and does not describe a group of people of common descent or origin.[10]In Mandla v Dowell Lee [1983] 2 AC 548 the issue was whether Sikhs were a racial group within the meaning of that expression in section 3(1) of the Race Relations Act 1976 which was in all material respects the same as the definition now under consideration. It was not suggested that Sikhs were a group defined by colour, race, nationality or national origins and the argument turned entirely upon whether they were a group defined by ethnic origins. Race failed because, in the words of Lord Templeman (at p 569):
"They are more than a religious sect, they are almost a race and almost a nation. As a race, Sikhs share a common colour, and a common physique based on common ancestors from that part of the Punjab which is centred on Amristar. They fail to qualify as a separate race because in racial origin prior to the inception of Sikhism they cannot be distinguished from other inhabitants of the Punjab."
[11]In a speech with which Lord Edmund-Davies, Lord Roskill and Lord Brandon agreed, (as they did with Lord Templeman), Lord Fraser of Tullybelton stated, at p 526E:
"For a group to constitute an ethnic group in the sense of the Act of 1976, it must, in my opinion, regard itself, and be regarded by others, as a distinct community by virtue of certain characteristics. Some of these characteristics are essential; others are not essential but one or more of them will commonly be found and will help to distinguish the group from the surrounding community. The conditions which appear to me to be essential are these: (1) a long shared history, of which the group is conscious as distinguishing it from other groups, and the memory of which it keeps alive; (2) a cultural tradition of its own, including family and social customs and manners, often but not necessarily associated with religious observance. In addition to those two essential characteristics the following characteristics are, in my opinion, relevant; (3) either a common geographical origin, or descent from a small number of common ancestors; (4) a common language, not necessarily peculiar to the group; (5) a common literature peculiar to the group; (6) a common religion different from that of neighbouring groups or from the general community surrounding it; (7) being a minority or being an oppressed or a dominant group within a larger community, for example a conquered people (say, the inhabitants of England shortly after the Norman conquest) and their conquerors might both be ethnic groups."
[12]In the course of his reasoning, Lord Fraser stated at p 561D:
"I recognise that 'ethnic' conveys a flavour of race but it cannot, in my opinion, have been used in the Act of 1976 in a strictly racial or biological sense."
Lord Fraser stated that in seeking for the true meaning of 'ethnic' in the statute the courts are not tied to the precise definition in any dictionary. He referred to the definition in the 1972 supplement to the Oxford English Dictionary:
"pertaining to or having common racial, cultural, religious or linguistic characteristics, esp. designation a racial or other group within a larger system; …"
Lord Fraser added at p 562C:
"The value of the 1972 definition is, in my view, that it shows that ethnic has come to be commonly used is a sense appreciably wider that the strictly racial or biological. That appears to me to be consistent with the ordinary experience of those who read newspapers at the present day. In my opinion, the word 'ethnic' still retains a racial flavour but it is used nowadays in an extended sense to include other characteristics which may be commonly though of as being associated with common racial origin."
[13]Mr Siddle submits that the word "African" fails as a ethnic group because it is capable of covering people with diverse cultural traditions. On the basis of Lord Fraser's definition, we accept that submission. Even if the definition is confined to black people (as to which we turn in a moment), there are diverse cultural traditions in Africa, including family and social customs and manners. While there is a geographical connection, there is no common language, literature or religion. The situation is quite different from that of Sikhs.[14]On behalf of the respondent, it is submitted that the word African denotes a racial group defined by reference to "race". The Court has been supplied with extracts from the definition of race in the New Shorter Oxford English Dictionary (4th Ed 1993): A group or set, especially of people, having a common feature or features … . The fact or condition of belonging to a particular people, ethnic group, etc; the qualities or characteristics associated with this. Any of the major divisions of humankind, having in common distinct physical features or ethnic background … .[15]In Mandla , at p 561, Lord Fraser expressed agreement with the general observations of Lord Simon of Glaisdale in Ealing LBC v Race Relations Board [1972] AC 342 , when considering the meaning of the words "nationality" and "race" in the Race Relations Act 1968. Lord Simon stated, at p 362,:
"Moreover, 'racial' is not a term of art, either legal or, I surmise, scientific. I apprehend that anthropologists would dispute how far the word 'race' is biologically at all relevant to the species amusingly called homo sapiens."
Having quoted section 1(1) of the 1968 Act, with its reference to "colour, race or ethnic or national origins", Lord Simon added:
"This is rubbery and elusive language — understandably when the draftsman is dealing with so unprecise a concept as 'race' in its popular sense and endeavouring to leave no loophole for evasion."
[16]Given the dictionary definition of "race", Lord Simon's reference to "rubbery and elusive language" remains apt. The same applies to the definition of "African" supplied from the same dictionary: "… (noun) 1 A dark-skinned native or inhabitant of the continent of Africa; an African Black. OE. b hist. An American Black of African origin or descent. 2 A white inhabitant of Africa. B (adjective) Of or pertaining to Africa; belonging to or characteristic of the Blacks of Africa or (Hist) of America … .[17]The word bears different meanings in different contexts and in different countries. What does emerge from the speeches in Mandla and in Ealing is however that the Court is not tied to the precise definition in any dictionary. The statutory language is intended to be given a broad, non-technical meaning. Moreover words are to be construed as generally used in the jurisdiction of England and Wales. In our judgment, the word African does describe a "racial group" defined by reference to race. In ordinary speech, the word African denotes a limited group of people regarded as of common stock and regarded as one of the major divisions of humankind having in common distinct physical features. It denotes a person characteristic of the blacks of Africa, to adopt a part of the definition in the dictionary.[18]Mr Siddle may be right to say that the word "African" is capable of covering individuals from Cairo to the Cape, which would include, for example, Egyptians and white South Africans. The sense in which the word is commonly used would not however include persons of that description. There may be people in England and Wales who refer to white South Africans as Africans but I would not expect them to be numerous. Moreover, given the statutory intention to be comprehensive, it would be surprising if describing a woman as a "black bitch" would qualify on the ground of colour and a "Sierra Leoneon bitch" on the ground of nationality but to call her an "African bitch" would fall outside the section.[19]Reference was made to South America in the course of argument and we mention it to make a distinction. Whereas the word African has a racial connotation, the expression South American, in England and Wales, probably does not. The range of physical characteristics in the populations of that continent, and the absence of prominence of any one group, is such that the use of the expression South American does not bring to mind particular racial characteristics. We would not expect there to be a common perception in England and Wales of a South American racial group.[20]The second ground of appeal is that if the appellant was referring to a racial group within the statutory definition, he was of the same racial group as that of the victim. Parliament cannot have intended, it is submitted, to create criminal liability in such circumstances. The appellant gave evidence that he had been born in the West Indies and, moreover, viewed himself as being African. Whether or not he would be regarded as African (and we make no finding as to that), there is no merit in that submission. Reference was made to the decision of the Divisional Court in Director of Public Prosecutions v Rishan Kqumar Pal Transcript 3 February 2000, 2000 CLR 756. That was a prosecution appeal against a finding of justices that comments made to an Asian infringed against section 28(1)(a). Dismissing the appeal, Simon Brown LJ stated that the justices were entitled to come to the conclusion that the language did not involve hostility towards the victim based on the victim's membership of the Asian race as distinct from hostility towards the victim's conduct that night. That is not a point which arises in the present appeal. While it may be unusual, as Simon Brown LJ commented, for a person to show hostility to another based on the other's membership of a racial group where the alleged offender comes from the same racial group, we see no basis for holding that such hostility cannot in law be shown. It may be more difficult in such cases to establish that the hostility is of racial, national or ethnic origin as the case may be. However a person may show hostility to his own kind whether racial, ethnic or national. (We note that the Court appears to have had no difficulty with the concept of Asians being a racial group).[21]The third ground of appeal is that the jury should have been discharged on the appellant's acquittal of attempted theft. It is submitted that the jury's knowledge of the allegation of attempted theft prejudiced their consideration of the charge under section 31. We do not accept that submission. In his discretion the Recorder was entitled to allow the trial to proceed and the jury were given an appropriate direction. Moreover, upon a re-trial, the circumstances in which the altercation between the complainant and appellant occurred would probably have been admissible in a trial in which only the section 31 count was before the jury.[22]The fourth ground of appeal is that the evidence as to the appellant's conduct when he was arrested by the police after the altercation ought not to have been admitted. There was evidence that he was generally aggressive and abusive on arrest and also referred to the complainant as an "African cunt". The use of that expression did not constitute racial aggravation under section 31 because it was not conduct "at the time of committing the offence or immediately after doing so". However, we do not consider that the admission of evidence of conduct at the time of an arrest shortly after the events complained of was unfair in the circumstances. In assessing whether the ingredients of the offence were established, including the section 4 ingredients, the jury were entitled to know the complete sequence of events. An appropriate direction was given by the Recorder.[23]It follows from our findings that the Recorder was entitled to leave the case to the jury and that he was entitled to make the interlocutory decisions he did that the grounds of appeal fail. There is nothing unsafe about the verdict. It was for these reasons that at the conclusion of the hearing the Court dismissed the appeal.[24]There then followed an application for leave to certify a question, which was refused.

Cited in 6 later judgments