Attorney General's Reference No 4 of 2004 (D) Under Section 36 of the Criminal Justice Act 1972 [2005] EWCA Crim 889

Case No 200405728/D5[2005] EWCA Crim 889
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM LUTON CROWN COURT
HIS HONOUR JUDGE BREEN
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate Friday, 22 April 2005
Before
THE RIGHT HONOURABLE LORD JUSTICE AULDTHE HONOURABLE MR JUSTICE BEATSONTHE HONOURABLE MR JUSTICE WAKERLEY
Between
ATTORNEY GENERAL’S REFERENCE NO 4 OF 2004 (D) UNDER SECTION 36 OF THE CRIMINAL JUSTICE ACT 1972Appellant(Transcript of the Handed Down Judgment ofAppellantSmith Bernal Wordwave Limited, 190 Fleet StreetAppellantLondon EC4A 2AGAppellantTel No: 020 7421 4040, Fax No: 020 7831 8838AppellantOfficial Shorthand Writers to the Court)AppellantMr Aftab Jafferjee for the Attorney GeneralAppellantMiss Nadia Chbat for offender DAppellantATTORNEY GENERAL’S REFERENCE NO 4 OF 2004 (D) UNDER SECTION 36 OF THE CRIMINAL JUSTICE ACT 1972
(Transcript of the Handed Down Judgment ofSmith Bernal Wordwave Limited, 190 Fleet StreetLondon EC4A 2AGTel No: 020 7421 4040, Fax No: 020 7831 8838Official Shorthand Writers to the Court)
Mr Aftab Jafferjee for Attorney GeneralMiss Nadia Chbat for offender DLord Lester of Herne Hill QC & Mr Nicholas De Marco for Commission for Racial Equality
Judgment

Introduction

[1]On 20th January, before His Honour Judge Breen and a jury in the Crown at Luton Mrs D was acquitted at the close of the prosecution case on the direction of the Judge of racially aggravated assault by beating, charged under section 29(1)(c) of the Crime and Disorder Act 1998 (“the 1998 Act”).[2]The charge of which Mrs D was acquitted was that she had assaulted a Dr N by beating him, and that, immediately before doing so, she had demonstrated hostility towards him based on his membership or presumed membership of a racial group, such that the offence was racially aggravated within the meaning of section 28 of the 1998 Act. In summary, the case against her was that, when attending with her child, Dr N’s surgery, she had, immediately before assaulting him, referred to him as “an immigrant doctor”. The Judge’s reason for directing the jury to acquit was that the word “immigrant” could not import membership of a specific racial group within the meaning of the 1998 Act.[3]Her Majesty’s Attorney General now seeks the opinion of the Court by way of reference under section 36 of the Criminal Justice Act 1972 on the point of law whether :- “the use of the word “immigrant” to a victim of an offence is capable of demonstrating hostility, based upon the victim’s membership (or perceived membership) of a ‘racial group’ as defined by Section 28(4) of the Crime and Disorder Act 1998 – namely “a group of persons defined by reference to race, colour, nationality (including citizenship) or ethnic or national origins.”[4]Put shortly, the central issue arising on this reference is whether the use of the word “immigrant” in its simple implication that a person is “non-British” is specific enough to denote membership of a “racial group” within its meaning in section 28(4) of the 1998 Act.

The statutory provisions

[5]Section 28 of the 1998 Act, which applies to racially or religiously aggravated assaults specified in section 29 of the Act, provides that an offence is racially or religiously aggravated for the purposes of sections 29 to 32 … [of the Act] 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 or religious group; or (b) the offence is motivated (wholly or partly) by hostility towards members of a racial or religious group based on their membership of that group. (2) In sub-section (1)(a) above – “membership” in relation to a racial or religious group, includes association with members of that group; “presumed” means presumed by the offender. (3) It is immaterial for the purposes of paragraph (a) or (b) of subsection (1) above whether or not the offender’s hostility is also based, to any extent, on any other factor not mentioned in that paragraph. (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. (5) In this section “religious group” means a group of persons defined by reference to religious belief or lack of religious belief.[6]The definition of “racial group” in sub-section (4) of that provision follows the definition in the Race Relations Act 1976, which, in its repeal and replacement of the Race Relations Act 1965, in section 3(1) specifically added “nationality” to the other four criteria as a means of satisfaction of the definition. By section 78(1) of the 1998 Act, as amended, “nationality” includes “citizenship”. It should also be noted that section 3(2) of the 1976 Act provides that a particular racial group for the purpose of the Act may comprise two or more distinct racial groups.

The prosecution case and evidence

[7]The case, as we have said, concerned an assault on a doctor, a general practitioner. Dr. N, who is of Asian origin, practised at a surgery in Bedford, at which Mrs D was a patient. On Saturday morning, 15th June 2002, she took her three year old son to the surgery as an emergency appointment, because she was concerned about a rash he had developed.[8]Dr. N’s witness statement described how, after examining the child, he advised Mrs D that she could take the child home back home, but that she should contact the surgery if he developed any further symptoms. Mrs D was unhappy with his assessment. She said that she wanted “a proper diagnosis”. The doctor responded by saying that he was prepared to write a letter referring her son to the hospital. That did not placate Mrs D. She said that she wanted a diagnosis from him “here and now”. He suggested that she should find another doctor, and she replied “I can’t find another doctor; all the good doctors are taken up by asylum seekers and I am left with an immigrant doctor.” She then grabbed the letter he was writing, tore it and attempted to pull her son’s medical records away from him. In the struggle she tore part of the records and caused several small scratches to his head. He threatened to telephone the police and she then left the surgery. In interview by the police, Mrs D gave a similar account of what led to the assault, save that she denied that there had been any discussion of a referral letter or that she had referred to him as an “immigrant” doctor or that she had caused him any injury.

The Trial Proceedings

[9]At the end of prosecuting counsel’s opening of the matter in which he had equated Mrs D’s reference to an “immigrant” as a reference to a “non-British” person and, on that account, as a reference to a member of a racial group as defined in section 28(4) of the 1998 Act, the Judge suggested that that was insufficiently specific since the word “immigrant” could encompass any number of racial groups.[10]Prosecuting counsel, having considered the Judge’s views, and having taken instructions, nevertheless proceeded to call Dr. N, who gave evidence in accordance with his witness statement. At the conclusion of his evidence, the Judge maintained his initial view that the use of the word “immigrant” did not engage section 28. In the course of an exchange of views with prosecuting counsel he said that: 1) the word “immigrant” constituted a vast racial group with no specific characteristics; 2) the concepts of “nationality” and “nationality origin” are not wide enough to include the concept of “non-British nationality” or “non-British national origins”; and 3) the words “immigrant doctor” in this case could be interpreted as a reference to someone who couldn’t be understood or speak English properly – a conclusion at which he had arrived having heard Dr. N giving evidence. He then formally ruled, clearly focusing on the first two of those propositions, that:
“… for the reasons which have been adverted to in argument, it does not seem to me that the fact that someone is non-British and an immigrant to this country, can possibly be said to make such a person a member of a racial group …”

The submissions on the Reference

[11]Mr Aftab Jafferjee for the Attorney General, focusing rightly on the main thrust of the Judge’s reasoning that the word “immigrant” was just too wide to constitute membership of a racial group within the meaning of section 28(4) of the 1998 Act, submitted that the plain intention of the provision was that it should have wide application. He included in his citations in support of that submission: 1) statements of the Secretary of State for the Home Department in the passage of the Race Relations Act 1965, which created the first statutory offence of incitement to racial hatred, on the width to be given to the four criteria “colour, race, ethnic or national origins”; 2) the clarifying addition of “nationality” to the criteria by the Race Relations Act 1976 and statements made by the Secretary of State in its passage, as a bill, through the House, prompted by the reasoning of the House of Lords in Ealing London Borough Council v Race Relations Board [1972] Act 342, in which their Lordships, by a majority, had held that discrimination by the Board against all non-British nationals in allocating housing, though discrimination on the basis of nationality, was not caught by any of the four criteria in the 1965 Act; 3) the following statement of the Home Secretary at the report stage of the 1998 Act: “Those who commit many racially aggravated offences and who go in for acts of racial hatred are typically so ignorant that they see the colour of someone’s skin, or their general appearance, and dismiss them as for example “Pakis” or other such horrible insults without knowing from which racial or religious group they come. We are determined that no perpetrator of racist attacks should escape conviction and punishment because of the perpetrator’s ignorance about the victim’s racial group. Our amendments in this group will put the issue beyond doubt. Our amendments make it clear that whatever racial group the perpetrator believes the victim to be from, an offence will be racially aggravated if racial hostility or motivation is proved … The Bill does not protect some groups and not others; it protects everyone from racist crimes.” 4) a number of judicial authorities, including BBC Scotland v Souster (Ex Div) [2002] SLT 265, R v White (Anthony) [2001] EWCA Crim 216 [2001] 1 WLR 1352 and DPP v McFarlane [2002] EWHC 485 (Admin), to which, along with the decision of the Divisional Court in DPP v M(A Minor) [2004] EWHC 1453 (Admin), we shall return.[12]Mr Jafferjee submitted that, in the light of these pointers and authorities, the Attorney General’s broad approach to construction of the term “racial group” in the 1998 Act supports the proposition that the use of the term “immigrant” is, not only caught by the term “national origins”, but also by the word “nationality”. He added that in the case of Dr. N – who appears to have had a pronounced Indian accent when speaking English and whose physical appearance in terms of colour was obviously not white - it would have been open to a jury to conclude as a matter of evidence that the reference to him as an “immigrant doctor” would have offended each of the five statutory criteria.[13]Mr Jafferjee usefully concluded his submissions by commenting that if the Judge’s ruling were to be upheld, it would have the absurd result that the law would permit a person to discriminate another even though demonstrating hostility towards that other based on the fact, or presumed fact, that he was an immigrant, but not if based on his membership or presumed membership of a group defined more precisely by reference to one or more of the statutory criteria.[14]In a helpful intervention with the leave of the Court, Lord Lester of Herne Hill QC, on behalf of the Commission For Racial Equality, supported the Attorney General’s reference. He submitted that the term “racial group” should be given the same wide meaning that it has under section 3(2) of the 1976 Act, namely as capable of comprising two or more distinct racial groups. He said that the consequences of the Judge’s ruling, if it were to be recognised as valid for the 1998 Act, would, have a profoundly damaging effect, not only on the working of that Act, but also on the protection against racial discrimination for which the 1976 Act was intended to provide. Making the same point as Mr Jafferjee, he said that it would follow, for example, that reference to someone as an “immigrant” would fall outside both statutes even where the circumstances in which was made evidenced hostility to the victim as a member of one or more racial groups. Such a construction, he submitted, would be contrary to the language and purpose of both Acts. He relied heavily on the inclusion in the list of racial criteria in the 1976 and 1998 Acts of the criterion on nationality, including citizenship, as a result of the distinction drawn between it and national origins already one of the criteria, in the Ealing case.[15]More generally, Lord Lester urged the Court, as various of the judicial authorities have indicated, to avoid a strict or legalistic approach to the construction of the term “racial group” in this context, which requires a court to decide amongst other things whether an accused has behaved towards another in a hostile way in the sense of reflecting adversely on his, race, colour, nationality or ethnic or national origins. In the context of this case, he submitted that Mrs D’s use of the term “immigrant doctor” towards Dr Nl was clearly capable of being a demonstration of her hostility towards him on racial grounds, within the meaning of that expression in the 1976 Act.[16]Miss Nadia Chbat, who appeared on behalf of Mrs D, did not seek to support the Judge’s ruling, having regard to the Divisional Court’s decision in DPP v M (A Minor) (see paragraph 23 below).

The authorities and the Court’s Opinion

[17]In addition to authorities such Mandla v Dowell Lee [1983] 2 AC 5548, HL, indicating a wide and non-legalistic approach to the meaning of “racial group” in the 1976 Act - in that case as to the definition of Sikhs as such a group by reference to their “ethnic” origins - Mr Jafferjee and Lord Lester pointed to some authorities more directly in point.[18]In Orpheanos v Queen Mary College [1985] AC 761, HL, the House of Lords held that the College’s requirement, that students who had not ordinarily been resident in the EEC area for three years should pay higher fees than EEC residents, was indirectly discriminatory of a Cypriot citizen of Greek nationality, contrary to section 1(1)(b) of the 1976 Act. Lord Fraser of Tullybelton, giving the leading speech, agreed, at 771c, that Mr Orpheanos belonged to three racial groups as defined by section 3(1), as extended by section 3(2), of the 1976 Act, namely Cypriot, non-British and non-EEC, and that two of them, namely non-British and non-EEC, were within section 1(1)(b) of the 1976 Act. In his acceptance of “non-British” as a racial group for the purpose of the Act, Lord Fraser said that particularity of the non-racial group is not important and that a general and negative exclusion of British nationality would suffice to engage its anti-discriminatory provisions. To the extent that the Court of Appeal in the later case of Tejani v Superintendent Registrar for the District of Peterborough [1986] IRLR 502, may have taken a different course, upon which it plainly relied upon the distinction drawn by the House of Lords in the pre 1976 Act case of Ealing, it was decided without the Court having been referred to Orpheanos, and was plainly per incuriam.[19]In BBC Scotland v Souster [2002] SLT 265, where an English television presenter whose employment contract had not been renewed complained that he had been treated less favourably on the grounds of his national origins than someone who was Scottish, the Court of Session, in the judgments of its members upholding the complaint, indicated, first, the wide scope to be given to the meaning of both “national origins” and “nationality”; and, secondly, the all-embracing nature of the racial discrimination legislation.[20]However, there are recent authorities, the first of which is binding upon this Court, bearing directly on the central question posed by this case, namely whether the use of a word like “immigrant” as excluding all but “British subjects resident in this country” renders all those excluded, for the purpose of section 28 of the 1998 Act a “racial group”.[21]In R v White (Anthony) the defendant, who was born in the West Indies and viewed himself as African, was accused by a bus conductress – who came from Sierra Leone – of trying to steal from another passenger. His response was to abuse her, calling her an "African bitch”. His contention was that the word “African”, given the breadth of colours, religions, cultures and traditions in that Continent, and given that it included individuals from Cairo to the Cape, was too wide a description to qualify under the any of the criteria of “race, colour, nationality (including citizenship) or ethnic or national origins”. In giving the judgment of the Court rejecting that contention, Pill LJ said, at paragraph 17:
“17. The word [“African”] bears different meanings in different contexts and in different countries. What does emerge from the speeches in Mandla’s case … and in the Ealing case … is 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 this jurisdiction. 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.”
[22]Applying that reasoning, as Mr Jafferjee did, to this case, the comprehensiveness of the statutory intention suggests that it would be confounded if, immediately before assaulting Dr N, Mrs D had called him an “Indian Doctor” and would have been caught by the legislation, but would not have been by calling him instead “immigrant doctor”, both of which epithets are clearly referable to his nationality and national origins.[23]Coming closer to the question posed by this reference is the decision of the Divisional Court in DPP v M(A Minor) where the allegedly offending words on a charge of racially aggravated criminal damage directed to the victim, a Turkish resident in this country for some years, were “bloody foreigners”. Magistrates dismissed the charge, in part on the ground that those words in the context of the case were not capable of being construed as expressing hostility based on the victim’s membership or presumed membership of a “racial group” as defined by section 28(4). On an appeal to the Administrative Court by way of case stated, the Court held that the Magistrates were wrong to dismiss the charge on that basis. In giving the leading judgment, with which Richards J agreed, I said, at paragraphs 30 and 31:
“30 … looking at the operation of section 28, as we must in the context of racial hostility directed by someone in this country to someone whose, or whose family’s origin is not in this country, it is inescapable that the word ‘foreigner’ may, depending on the context, qualify as demonstration within section 28(1)(a) of a ‘group of persons defined by reference to race … or national origins’ within the definition in section 28(4), a minority, albeit now a substantial minority, in national terms in the population of this country. 31. It is perhaps of significance that section 28(4) reads ‘by reference to race’, et cetera, not ‘by their race’, or even ‘by reference to their race’. I agree … that the Director can satisfy the definition in that provision in a non-inclusive, as well as an inclusive, sense according to the circumstances of the words used, or the act done, and the context of the case. In addition as White and McFarlane DPP v McFarlane (unreported) 7th March 2002, in which the Administrative Court held that use of the words “jungle bunny”, “black bastard” and “Wog” were capable of constituting a demonstration under section 28(1)(a) of hostility towards a racial group. show, the size of the group is, in any event, immaterial to the definition, since hostility can be expressed by the use of pejorative words, such as that here or those in White and McFarlane, towards groups large or small based on colour or origin and can be equally hurtful regardless of the number of people with whom the victim shares the non-inclusiveness of being a foreigner. … 33 To that extent the Magistrates were correct, as I read the opening words of their opinion, to accept in principle, or as they put it, ‘as a matter of semantics’, that the words ‘bloody foreigners’ could, depending on the context, describe a person within a ‘racial group’ as defined in section 28(4).”
[24]We adopt and apply that reasoning to the broad non-inclusive term “immigrant doctor” in the context in which it gave rise to this reference. If anything, the non-inclusive term “foreigner” denotes membership of an even broader racial group than does the term “immigrant” as applied to an alleged victim in this country of a racially aggravated offence. As Lord Lester observed, the Judge erred in determining the matter simply as a matter of construction of the word “immigrant” as “non-British”, divorced of the factual context in which it was used. Whether Mrs D’s use of the term “immigrant doctor” towards Dr N was only an allegation of non-Britishness or was part of a demonstration by her of hostility to him within the terms of section 28(1)(a) of the 1998 Act because she perceived his non-Britishness to derive from his race and/or his colour and/or his nationality and/or his ethnic or national origins involved a question of fact for determination by the jury on the facts of the case. In our view, the Judge erred in ruling as he did that someone who is an immigrant to this country and, therefore, non-British cannot as such be a member of a racial group within section 28(4) of the 1998 Act. In our opinion, he should have left the matter with the jury as one capable of having been a racially aggravated offence. _____________

Cited in 5 later judgments