Director of Public Prosecutions, R (on the application of) v Dykes [2008] EWHC 2775 (Admin)

Case No CO/191/2008[2008] EWHC 2775 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Venue Royal Courts of JusticeDate Tuesday, 21 October 2008
Strand
London WC2A 2LL
B e f o r e:
MR JUSTICE CALVERT SMITH
Between
THE QUEEN ON THE APPLICATION OF DIRECTOR OF PUBLIC PROSECUTIONSClaimantv
Between
AARON DYKESDefendant
Computer-Aided Transcript of the Stenograph Notes ofWordWave International LimitedA Merrill Communications Company190 Fleet Street London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
Mr John Lloyd-Jones appeared for Claimant for The defendant did not appear and was not represented
J U D G M E N T
[1]MR JUSTICE CALVERT SMITH: This is an appeal by way of case stated against the decision of Lincolnshire Justices sitting at Boston Magistrates' Court. On 17 September 2007, the respondent, Aaron Dykes, was convicted in his absence after trial of an offence of threatening behaviour under section 5 of the Public Order Act 1986. On the same occasion, he was acquitted of an offence of racially aggravated threatening behaviour under the same section, and of course section 31(1)(c) of the Crime and Disorder Act 1998.[2]The Crown Prosecution Service bring this appeal as a challenge to the decision of the Magistrates to acquit him of that latter charge. Just as at his trial where he failed to attend, he is not here today and the court has been informed that there has been no contact between him and those who represented him at his trial and subsequent sentence and therefore no submissions have been put in on his behalf in answer to this appeal.[3]In the statement of case supplied for the purposes of the appeal, the Justices indicate that they found the following facts:
"(a) The respondent was at the accident and emergency department at the Pilgrim Hospital Boston, and following treatment the previous evening had been allowed to sleep in the reception area by the doctor who had provided the treatment. At about 7.30 am, he was woken by a member of staff and asked to leave as he had been treated and no further treatment was required. At this he became very argumentative and angry, and refused to leave despite being requested to do so on three or four occasions. During this time, the Sister did treat his feet, but he continued to refuse to leave. "(b) Members of the public waiting to be treated were present in the reception area, and he continued to be aggressive, swearing and using foul and abusive language. The incident lasted for between 20 to 30 minutes during which his behaviour worsened, and at one time he started lashing out and punched the glass partition of a crèche. Eventually the police had to be called and arrested him. "(c) During the incident, the respondent on one occasion said, 'I want to see that lying fucking Paki bastard', or, 'I want to see that fucking Paki doctor now'. The person he was referring to was the doctor who had treated him the previous evening and who not present during the incident being off duty. No other persons of ethnic origin were present during the incident."
[4]It was on those facts as found by the Magistrates that the conviction was recorded on the section 5 offence and the acquittal on the aggravated form of the offence.[5]In giving their reasons for those two decisions, at paragraph 6 of the case stated, they say:
"We were of the opinion that the case taken as a whole did not amount to a racially aggravated offence and we're not satisfied that the respondent had demonstrated hostility towards any person based on their membership of a particular racial group. Whilst the use of the word 'Paki' would generally aggravate an offence, we have to take all of the circumstances into account, particularly that the word was used only once during an incident which lasted between 20 and 30 minutes, and that the person about whom the remark was made was not present and no other persons of that ethnic origin were present, but do accept that would not necessarily be relevant. "
We are of the opinion that the witnesses were more alarmed and distressed by the general antisocial behaviour displayed by the respondent rather than the use of the word Paki. Accordingly, we acquit the respondent of the racially aggravated offence and find him guilty of the section 5 Public Order Act offence."[6]It has been well established since the passage of the Public Order Act that both limbs of section 28 may be prayed in aid by the Crown in an allegation of a racially aggravated offence. Sometimes it will be necessary for the Crown to specify which limb they rely on, but in many cases, they are able to rely on both limbs.[7]Section 28 of the Crime and Disorder Act 1998 provides as follows, subsection 1:
"An offence is racially aggravated for the purposes of sections 29 to 33 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; or: "(b) The offence is motivated (wholly or in part) by hostility to members of a racial group based on their membership of that group."
[8]In general, the appellant's submission is that the Magistrates focused on section 28(1)(a) almost if not quite to the exclusion of section 28(1)(b). In particular five criticisms are made of the reasoning to which I have just referred. First, the expression, "taking the case as a whole" is not appropriate so far as a racially aggravated offence is concerned. What is required is proof of either hostility as defined in subparagraph (a) or as defined in subparagraph (b), or of course both. The fact that the case as a whole may not have been a racially aggravated one is nothing to the point.[9]The second complaint is that including in their reasoning a failure of the respondent to demonstrate hostility towards any person based on their membership of a racial group, they fell into error because of the fact that there was nobody from a minority ethnic group present when the remark was made and fell into the trap simply of considering section 28(1)(a).[10]Third, the reasoning is criticised for a reason similar to the first complaint, focusing on the fact that the word "Paki" had only been used once, making the whole incident not a racially aggravated offence. Once again, the criticism is that it doesn't matter whether it's used once or 20 times, if the offence is racially aggravated in either of the ways set out in section 28 then the offence is made out. The reflection of the fact that it was only used once may well of course be reflected in sentence.[11]The fourth complaint is that the Magistrates indicated another feature of their decision was that the person about whom the remark was made was not present and no other persons of that ethnic origin were present, albeit they accept that that would not necessarily be relevant. Again, Mr Lloyd-Jones submits, the Magistrates have fallen into the trap of focusing on section 28(1)(a).[12]And fifth, Mr Lloyd-Jones complains that the finding that the witnesses were more alarmed and distressed by the general antisocial behaviour displayed by the respondent rather than the use of the word "Paki" again is nothing to the point. The question is, was the offence itself aggravated in either of the ways set out in the section?[13]In my judgement, all those five complaints are well justified. In deciding whether an offence is racially aggravated within the terms of section 28, the Magistrates should have simply focused on the question of whether the remark had been made, whether it was in fact a remark which demonstrated racial hostility about which there can be little or no argument, and then to see whether, the remark having been made during the course of the commission of the offence, either subsection 1(a) or (b) was engaged. Clearly, as is conceded by Mr Lloyd-Jones, subsection 1(a) was not engaged, because subsection 1(a) clearly envisages the presence of the victim of the offence and the hostility based on the victim's membership of a racial group.[14]Mr Lloyd-Jones' submission is that those obvious misdirections must inevitably lead either to the case being remitted to the Magistrates with a direction to convict, or this court effectively replacing the acquittal with a conviction on the basis that had they applied their minds to section 28(1)(b) properly they must have come to the conclusion that this offence was a racially aggravated one.[15]In advancing his argument today, Mr Lloyd-Jones has brought into play the possibility that in fact the Magistrates will have found that the remark about the absent doctor was based on a complaint about his treatment by that doctor. If it was clear to me that that was indeed the case, then I would have found that there was only one possible answer, namely a conviction.[16]However, revisiting again the facts found and focusing on the role of the doctor, the facts that I've already cited indicate that it was the doctor who had provided the treatment who had allowed the defendant to sleep over in the reception area. The doctor then went off duty and another member of staff asked the defendant, as he then was, to leave because he required no further treatment. He then continued to refuse to leave in spite of receiving some further treatment. And so on the facts found by the Magistrates, it may well be that what provoked this disgraceful episode and the racially offensive remark lasting between 20 and 30 minutes was the fact that he was being kicked out of the hospital when he wanted to stay on longer. That's important.[17]Three cases have been cited to the court, one during the course of argument and two accompanying the skeleton argument submitted in advance of the hearing. In one of them, Selena Taylor v The Director of Public Prosecutions, [2006] EWHC 1202 (Admin), a woman who suspected that her partner or boyfriend had slept with a black woman, engaged in a serious offence under section 5 of the Public Order Act in the course which she uttered a stream of racist abuse about the woman whom she alleged had slept with her partner. The woman concerned was not present, but it was absolutely clear that the motivation for the outburst was in fact, at least in part, hostility towards the woman because she came from a different racial group. As I say, if that had been clear from the facts found by the Magistrates in this case, the case would have been on all fours effectively with Taylor.[18]The second case cited in advance of the hearing was RG, LT v The Director of Public Prosecutions, [2004] EWHC 183 (Admin). The facts of this case were very different from the case that we are concerned with. However, the judgment is helpful in establishing first that the Crown are entitled to rely on both limbs of section 28(1) when they allege a racially aggravated offence -- in this case an offence of harassment -- and in its clear distinction between the object of the two subparagraphs. In giving the judgment the court,

Lord Justice May said at paragraph 13:

"It is, in my judgement, evidenced from the wording of the section that section 28 (1)(a) requires the prosecution to prove facts which indicate that the offender had demonstrated racial hostility at the time of committing the offence or immediately before or after doing is. That is not so much to indicate that the defendant's state of mind as to prove what he did or said so as to demonstrate racial hostility towards the victim."
A little later, at paragraph 14, he said:
"By contrast, section 28(1)(b) is concerned with the defendant's motivation. The offence has to be wholly or in part motivated by racial hostility. That does concern the defendant's state of mind, but motive is necessary in a state of mind.

(a) "

The difference however is that section 28(1)(a) essentially requires proof of what the defendant did, or what he or she did at the time of committing the offence, or at a time closely related to it. The motive, in my judgment, is at least capable of being established by evidence relating to what the defendant may have said or done on another or other occasions."[19]And at paragraph 23:
"In my judgment, this was a case where the Crown was entitled to say and proceed on the basis that one or other or both of the subsections of section 28 were appropriate. I do not consider it was necessarily the case that the Crown should be tied to one or the other to the exclusion of the other. Certainly there may be cases where facts are capable of being found on the evidence which would be a very good case for both subparagraphs."
[20]If the present case is instructive of anything at all, it may be of the fact that it would be important in future prosecutions before magistrates for the prosecutor to make it absolutely clear that section 28(1)(b) is very much in play as part of the allegation made of racial aggravation in a summary trial so that the magistrates have in mind that it is not simply the abuse directed at the victim of the offence which is being alleged, but a motivation based on racial hostility.[21]The third case helpfully placed before me by Mr Lloyd-Jones, to whom the court is grateful knowing that he has come into the case very late, is Director of Public Prosecutions v Howard, [2008] EWHC 608 (admin).[22]In this case two police officers were subjected to abuse. The police officers themselves, as the court understands, were white, as was the defendant, but in what appears to have been a pattern of abuse over the garden fence, on one occasion the respondent in this case, Howard, chanted, "I'd rather be a Paki, I'd rather be a Paki, I'd rather be a Paki than a cop". And in that case the justices acquitted and the divisional court presided over by Moses LJ did not reverse the conviction, using the words at paragraph 13:
"The use of racially offensive language may in the circumstances provide evidence of the offence, but if it was not in any way the motivation for that offence then there can be no conviction pursuant to section 28(1)(b)."
[23]That authority produced somewhat late in the day during the course of argument this morning reflected concerns I had already expressed, as will be clear from what I've already said, as to this offence. It may well be that had they directed themselves correctly and focused properly on section 28(1)(b) and the need for the Crown only to prove that the offence was motivated in part by racial hostility, they would indeed have convicted, but I do not believe it possible to say that that is a certain conclusion from the facts that they found on the basis that the offence itself was motivated by something quite different, namely annoyance at being removed from the hospital when he wanted to sleep on.[24]So for those reasons, while I accept that there are valid criticisms to be made of the Justices' reasoning, I do not think it an appropriate case to take out of the course as urged by the Crown today.[25]Mr Lloyd-Jones, thank you very much.[26]MR LLOYD-JONES: My Lord, you dismissed the appeal?

MR JUSTICE CALVERT SMITH: Yes, I formally dismiss the appeal.

[28]MR LLOYD-JONES: My Lord, I come late to the case, because CPS Lincolnshire wanted somebody supposedly a little more senior to prosecute this matter.

MR JUSTICE CALVERT SMITH: Yes.

[30]MR LLOYD-JONES: My Lord, I was -- I'm a little --

MR JUSTICE CALVERT SMITH: Where are we going now?

[32]MR LLOYD-JONES: Well, my Lord, you've read my mind in my rather inarticulate submissions. I fear that when I report back that there might be a wish that a draft question be formulated. My Lord, the precise procedure for that is not at the forefront of my mind at the moment.

MR JUSTICE CALVERT SMITH: All right.

[34]MR LLOYD-JONES: Might I have --

MR JUSTICE CALVERT SMITH: Seven days?

[36]MR LLOYD-JONES: Seven days.

MR JUSTICE CALVERT SMITH: Very well.

[38]MR LLOYD-JONES: Thank you.[39]MR JUSTICE CALVERT SMITH: Yes, I would have thought on reflection, having established the principle I hope that they did get themselves in a muddle over the right questions and the exact status of Mr Dykes' conviction. As to whether that needs to be revisited, I would have thought it might be less important --[40]MR LLOYD-JONES: It is not from a very personal submission, merely out of an abundance of caution.[41]MR JUSTICE CALVERT SMITH: Of course, absolutely. Seven days.[42]MR LLOYD-JONES: I'm obliged, my Lord. Thank you.