Johnson v Director of Public Prosecutions [2008] EWHC 509 (Admin)

Case No CO/6979/2007[2008] EWHC 509 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Venue Royal Courts of JusticeDate Tuesday, 26 February 2008
Strand
London WC2A 2LL
B e f o r e:
LORD JUSTICE RICHARDS
MRS JUSTICE SWIFT DBE
Between
HERALD JOHNSONClaimantv
Between
DIRECTOR OF PUBLIC PROSECUTIONSDefendant
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)
Ms E Mushtaq (instructed by Howells) appeared for ClaimantMr M Rawlinson (instructed by CPS) appeared for Defendant
J U D G M E N T

LORD JUSTICE RICHARDS:

This

[1]case arises out of words spoken by the appellant, who is a black male, to two white parking attendants employed by Sheffield City Council while they were working in the Spital Hill area of Sheffield at about 5pm on 16 December 2005. Following a report of the incident to the police by one of the parking attendants, the appellant was charged under section 31 of the Crime and Disorder Act 1998 ("the 1998 Act") with the racially aggravated version of an offence under section 5 of the Public Order Act 1986 ("the 1986 Act"). He was convicted by Sheffield Magistrates' Court. On an appeal to Sheffield Crown Court, heard by Mr Recorder Bradshaw and two lay justices, the appeal was dismissed. A further appeal is now brought by way of case stated to this court.[2]By section 5 of the 1986 Act, a person is guilty of an offence if, inter alia, he uses threatening, abusive or insulting words within the hearing or sight of a person likely to be caused harassment, alarm or distress thereby. By section 31 of the 1998 Act, a person is guilty of an offence under section 31 if he commits an offence under section 5 of the 1986 Act which is racially aggravated. By section 28(1) of the 1988 Act an offence is racially aggravated 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 to members of a racial or religious group based on their membership of that group. Sub-section (3) provides that it is immaterial for the purposes of paragraph (a) and (b) of sub-section (1) whether or not the offender's hostility is also based to any extent on any other factor not mentioned in that paragraph. Sub-section (4) provides that "racial group" means a group of persons defined by reference to race, colour and nationality, including citizenship or ethnic or national origin. It is colour that is material to the present case.[3]The case stated sets out that the two parking attendants, called Gordon Lockley and Linda Robinson, were working together. It summarises their evidence as follows: "... b. Both Gordon Lockley and Linda Robinson stated that a black male walked towards their direction. c. The words 'Leave us alone, you're always picking on us up here. Leave the car alone' were said by Mr Johnson. d. The words 'why don't you get up Dore with your white uncles and aunties' were said by Mr Johnson. The words 'You had better not stick a ticket on me' were also said by Mr Johnson. e. Gordon Lockley and Linda Robinson stated that they felt threatened and nervous and intimidated. f. Gordon Lockley stated that Mr Johnson did not speak to him. g. Mr Johnson returned having left with a camera stating that the matter would go to the newspapers. h. Gordon Lockley stated he felt intimidated. i. The words 'get up Eccleshall Road and do your white aunties and uncles' were said by Mr Johnson to Linda Robinson. j. Linda Robinson felt the remark was racist because of the fact that Mr Johnson had brought colour into the conversation. k. The words 'this is our patch not yours' were said by Mr Johnson. l. The words 'you don't belong here' were said to Linda Robinson by Mr Johnson. m. Linda Robinson stated that she was not directly threatened. n. Linda Robinson stated she felt the situation was odd and felt uneasy about it. o. Linda Robinson recalled Mr Johnson stating something about going to the newspapers. p. Mr Johnson had not sworn at the parking attendants. q. Linda Robinson had told a police officer when the complaint was first made that she was not threatened but felt intimidated.[4]A submission of no case was made on very much the same grounds as are raised on the present appeal. The submission was rejected and the appellant then gave evidence. Having heard all the evidence, the court made the following findings of fact as set out in the case stated:
"(a) Mr Johnson had used the words said in evidence by Gordon Lockley and Linda Robinson. (b) Mr Johnson had said 'leave us alone, you're always picking on us. Leave the car alone' and meant the black community was always being picked on. (c) Mr Johnson had been angry and shouting and aggressive when saying these words. (d) In Mr Johnson saying 'get up Dore to your white uncles and aunties' meant leave the area and go to your white areas. (e) 'This is our patch not yours' was said by Mr Johnson and was a reference to that being a black area and the words were threatening. (f) That Gordon Lockley and Linda Robinson had found those comments to be racially motivated. (g) That Gordon Lockley and Linda Robinson were threatened and intimidated. (h) That Mr Johnson was angry and was shouting. (i) That the words were said in a threatening manner. (j) As a result of the words used Linda Robinson and Gordon Lockley were harassed, alarmed and distressed. (k) In using the above words Mr Johnson was expressing the view that whites get out of the area to where they belong and this demonstrated hostility."
[5]On those findings, the court found the appellant guilty of the offence charged.[6]The court has put forward four questions for the opinion of the High Court as follows:
"(i) Are the comments 'leave us alone, why don't you get up Dore with your white aunties and uncles; 'get up Dore, do your white aunties and sisters' and 'This is our patch not yours' capable of amounting to threatening, abusive or insulting words under section 5 of the Public Order Act 1986? (ii) Were the words used as above capable of causing harassment, alarm or distress? (iii) Are the comments 'leave us alone, why don't you get up Dore with your white aunties and uncles; 'get up Dore, do your white aunties and sisters' and 'This is our patch not yours' capable of demonstrating hostility based on the victim's membership (or presumed membership) of a racial or religious group under section 28 of the Crime and Disorder Act 1998 given that [the] description of 'white' comes within a definition of racial group under the Crime and Disorder Act 1988, Section 28(4). (iv) Are the comments 'leave us alone, why don't you get up Dore with your white aunties and uncles; 'get up Dore, do your white aunties and sisters' and 'This is our patch not yours' capable of being separated from hostility based on the duties of the parking attendants from hostility based on the victim's membership or presumed membership of a racial or religious group? Or is the fact that the words used may have been abusive in relation to parking attendants generally irrelevant if they are also based on the victim's membership or presumed membership of a racial or religious group?"
[7]In her skeleton argument on behalf of the appellant, Ms Mushtaq has indicated that it is not clear whether the conviction in this case was based on paragraph (a) or paragraph (b) of section 28(1). In my view, however, it is clear from the case stated, read as a whole, that the conviction was based on paragraph (a), which would be the natural provision to rely on in the particular circumstances. I shall therefore say nothing further about paragraph (b).[8]Having considered the skeleton argument of Mr Rawlinson on behalf of the respondent, Ms Mushtaq has conceded that the answers to questions (i) and (ii) posed by the Crown Court should be "yes". It seems to me that that concession is rightly made. In my judgment, the words used by the appellant were plainly capable of amounting to threatening, abusive or insulting words within section 5 of the 1986 Act. Whether they were in fact threatening, abusive or insulting in the particular circumstances in which they were used was a matter for decision by the Crown Court, as the tribunal of fact, in the light of all the evidence. The court's findings of fact to the effect that the appellant was angry and shouting and aggressive, that the words were said in a threatening manner, and indeed that the two parking attendants were harassed, alarmed and distressed as a result, provided an ample basis for a conclusion that the words were threatening, abusive or insulting. It is not, and could not sensibly be, suggested that the findings were not reasonably open to the court on the evidence.[9]Much the same reasoning applies to the question whether the words were capable of causing harassment, alarm or distress. Again, the issue is essentially one of fact rather than law. It was for the Crown Court to decide whether, in the particular circumstances, the persons within whose hearing the words were used were likely to be caused harassment, alarm or distress by them, and given the context -- the findings about the appellant's angry and threatening manner, and the finding that both parking attendants were in fact affected as I have said -- it was obviously open to the court, in my judgment, to find as it did in relation to this part of the statutory test as well.[10]Turning to questions (iii) and (iv), Ms Mushtaq's essential submission is that the mere fact that reference was made to the colour of the parking attendants and an indication given that they should leave the black community alone and that this was an area predominantly inhabited by the black community, was not sufficient to found a conviction. It is said that the words are simply not capable of demonstrating racial hostility. I for my part have no hesitation in rejecting those submissions.[11]The circumstances were such, in my judgment, as to make it reasonably open to the Crown Court to find that the appellant demonstrated racial hostility (to use a shorthand). The language used and the court's findings as to the meaning of the words used make clear that the appellant was presenting the matter in racial terms by reference to colour. He was telling the parking attendants to leave the black community alone, to get out of the black area where they were and to go to white areas, and he was telling all this as a black person addressing two white people. The words were capable of demonstrating racial hostility. Whether the appellant was in fact demonstrating racial hostility by the use of those words, rather than simply demonstrating hostility towards the two parking attendants based on their job as parking attendants, was a question of fact for the Crown Court. But there was an entirely adequate evidential basis for the finding that was made as to racial hostility.[12]It does not matter whether the appellant's hostility was partly racial and partly hostility towards parking attendants generally or by reason of their duties as parking attendants. The effect of section 28(3) the 1998 Act is that it is sufficient if the hostility is based in part on the victim's membership or presumed membership of a racial group. There may of course be cases where the words used are capable of demonstrating racial hostility, but it is found as a fact that there was no racial hostility demonstrated at all: see for example Director of Public Prosecutions v Howard, a decision of the Divisional Court presided over by Moses LJ on 7 February 2008 (for which a neutral citation does not yet appear to be available).[13]In the present case, however, the Crown Court must have found that the appellant's hostility was, at least in part, racial hostility, and there was, as I have said, a proper evidential basis for that finding. Accordingly, I would answer the first three questions "yes".[14]I would answer the fourth question by saying that it is sufficient if, in using the words in question, the appellant has demonstrated hostility based in part on the victim's membership or presumed membership of a racial group, even if it is also based in part on the victims' duties as parking attendants.[15]Finally, for the reasons given, I would dismiss the appeal.

MRS JUSTICE SWIFT: I agree.

LORD JUSTICE RICHARDS: Is there any further application?

[18]MR RAWLINSON: Not for my part, my Lord. I am grateful.[19]MS MUSHTAQ: No, thank you, my Lord.

LORD JUSTICE RICHARDS: Thank you very much.

Cited in 2 later judgments