RG & Anor v Director Of Public Prosecutions

LORD JUSTICE MAY: This is an appeal by case stated from a decision of District Judge Katharine Marshall in respect of her adjudication as a Youth Court sitting at Brent.

The District Judge conducted a trial of a number of young people (eight in all were charged at the outset but that number was reduced to six.) She heard evidence over 11 days in February and March 2003. She gave a full typed judgment on 4th April 2003. It is of no direct consequence to the appeal, but this court has had occasion during the last fortnight to observe what I, at any rate, regard as deficiencies in the procedure of a magistrates' court stating a case. This case stated seems to me to be another illustration of such deficiencies.

In the present case this court has the benefit of the District Judge's full 11-page decision. It seems to me that a procedure which simply enabled parties who wanted to appeal on a point of law to do so, on the basis of the judgment and the reasons contained in it, would be far preferable to the cumbersome and, I dare say so, more expensive procedure of requiring the District Judge to go through the process of setting it all out again in a case stated. But that is by the by.

The appeal today is on behalf of two of the six defendants: RG, who is now aged 15, and LT, who is now aged 16. RG was charged eventually (because there were amendments to the charges) with four matters. He was charged with racially aggravated harassment of LM between 4th February 2002 and 22nd March 2002 contrary to section 2 of the Prevention from Harassment Act 1997, and section 32 of the Crime and Disorder Act 1988. Secondly, he was charged with racially aggravated harassment of SH between the same dates and contrary to the same statutes. Thirdly, he was charged with racially aggravated common assault by beating IH on 21st March 2002 contrary to section 39 of the Criminal Justice Act 1988 and section 29 of the Crime and Disorder Act 1988. Fourthly, he was charged with affray on 21st March 2002 contrary to section 3(1) of the Public Order Act 1986.

LT faced two amended charges: common assault by beating IH on 21st March 2002, that was an equivalent charge to the racially aggravated common assault alleged against RG and, secondly, LT was charged with affray on 21st March 2002, that being parallel with the affray charge against RG.

The two charges against LT had originally been charged as racially aggravated common assault and affray respectively. The affray charge against RG had been charged as racially aggravated. It was not until some time into the trial that everybody appreciated that there is no offence, as such, of racially aggravated affray. Accordingly, the affray charge against RG was amended accordingly. The affray against LT had been amended to omit the racial aggravation at the outset of the trial. The common assault charge against LT had also been amended to omit the racial aggravation at the outset of the trial. This, we are told, was as a result of discussion between prosecution and defence counsel representing LT and, as will appear, the trial against him proceeded on the understanding, at least by Miss Harris, who appeared for LT, that racial aggravation was not alleged against him.

The District Judge found the following facts, as recited by her in the case stated:

On the basis of the above findings of fact, the District Judge convicted the appellants of the offences as charged. She stated that, given her findings, she was entitled to find that the affray had features of racial aggravation which she was required to state in open court and would be taken into account when sentencing.

The case stated then proceeded to recite in summary the relevant evidence. I am not going to read large parts of it. Suffice to say that there was evidence, for instance of what the District Judge referred to as the "swimming pool incident", where the District Judge was unable to find on the evidence a date on which it occurred. As to the major incident in the library, a question arose as to identification. One of the people who worked at the library was a person called Neeta Sharma. The evidence that she gave, the District Judge summarised as follows:

There was a CCTV recording which showed the entrance to the library and showed, among other things, a small boy in a dark hooded top remaining by the entrance.

The District Judge then set out various contentions made on behalf of the appellants and contentions made on behalf of the Crown. She then expressed the opinions that she had reached. She said:

It is appropriate to look at some of the legislation. Section 28 of the Crime and Disorder Act 1998 provides as follows:

It is, in my judgment, evident from the wording of that 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 so. That is not so much to indicate the offender's state of mind as to prove what he did or said so as to demonstrate racial hostility towards the victim. Often the demonstration will be by words or shouting. It may equally be possible to demonstrate racial hostility by means of doing something other than literally by means of words, as, for instance, by holding up a banner with racially offensive language on it. Equally, in my judgment, an offender may demonstrate racial hostility by joining in the activities of a group of people where a sufficient number of members of the group are themselves demonstrating racial hostility, and where the defendant's adherence to the group is such as to go beyond mere presence within the group, but so as to associate himself or herself with the demonstration of racial hostility which the group as a whole is displaying.

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, because motive is necessarily a state of mind. But the prosecution has to establish that state of mind and, no doubt, the evidence required to establish such a motive will often, perhaps usually, involve the kind of demonstration of racial hostility to which I have referred in relation to section 28(1)(a). The difference, however, is that section 28(1)(a) essentially requires proof of what the offender did, and what he or she did at the time of committing the offence or at a time closely related to it. 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. In my judgment, the District Judge was correct insofar as she came to that conclusion and applied it in her decision.

In my judgment, further, the prosecution may well be able and entitled in any particular case to rely on both limbs of section 28(1) of the 1998 Act. It is not necessary, nor necessarily the case, that a racially aggravated element of an offence has to be packed into one or other of the subsections (a) or (b) to the exclusion of the other. So much I understand is accepted by Mr Jones and Miss Harris on behalf of the appellants in the present case.

The offence of harassment appears in sections 1 and 2 of the Protection from Harassment Act 1997. Section 1 provides:

The first three questions which the District Judge posed and which I have read, were all essentially directed to a variety of submissions which Mr Jones made on behalf of RG, and which he makes upon this appeal, which concentrate on a distinction between racial aggravation, as under section 28(1)(a) of the 1998 Act and under section 28(1)(b) of the Act. His submissions, I trust I do not over-simplify them, may be summarised as follows.

The understanding that he had was that the Crown were proceeding under section 28(1) (a). Under section 28(1)(a) the Crown had to prove that at the time of committing the offence, or immediately before or after doing so, the offender was demonstrating racial hostility. In order to do so, it was not open to the Crown to rely on incidents which could not be shown to have occurred within the dates specified in the harassment charges, that is to say between 4th February 2002 and 22nd March 2002, because the very terms of section 28(1)(a) refer to "at the time of committing the offence" or "immediately before or after doing so".

Accordingly, it is submitted, firstly, that incidents, such as the swimming pool incident, where the date was not established, and where it could well have fallen outside the period, were not admissible, as the District Judge held that they were, in order to contribute to the evidence upon which she found that there was racial hostility. It is submitted, secondly, that there had to be a specific finding that RG individually on each occasion demonstrated racial hostility, otherwise the offence under section 28(1)(a) would not be established.

Mr Jones submits that it was plain that section 28(1)(a) was relied upon: firstly, because the charges related to specific dates; and secondly, because where evidence was called of incidents which did not go to any specific charge, that fact was pointed out and there was no cross-examination on those incidents. He says that the District Judge explicitly stated in her judgment that the Crown were not relying on joint enterprise and her decision was not based on joint enterprise. Accordingly, that the evidence which she admitted and relied upon should not have been admitted such, as I understand his submission to be, that she should not have been entitled to find that these were racially aggravated offences.

The submissions depend upon the premise that the Crown were proceeding under section 28(1)(a). Mr Squire denies the premise. He said that the Crown was not proceeding on that basis. He points to the final paragraphs of the opening, which indicates, by contrast, reliance on section 28(1)(b). He also points, as indeed is the case, to the fact that the District Judge plainly understood that this case was proceeding, at least in part, under section 28(1)(b).

I am entirely unpersuaded that the understanding, if understanding it was, that the Crown was proceeding under section 28(1)(a) had any proper basis. The recollection of Miss Harris is that although there was perhaps some understanding that the prosecution were proceeding under sub-subsection (a) up until submissions were made at the close of the prosecution case, at that stage, at least, the judge had raised the question of sub-subsection (b) and the prosecution said that this could be racial aggravation under section 28(1)(b) as well.

In my judgment, this was a case where the Crown was entitled to say, and proceed on the basis that, one or the other or both of these sub-subsections of section 28 were appropriate. I do not consider that 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 bring the case within both sub-subparagraphs. Indeed, our attention has been drawn to a passage in the judgment of Simon Brown LJ in Director of Public Prosecutions v Roshun Kumar Pal which was decided on 3rd February 2000, where at paragraph 9, Simon Brown LJ said:

We are asked by Mr Squire to give some guidance as to whether it is legitimate to require the prosecution, as he would put it, to express an opinion as to whether facts fall within one sub-subparagraph or the other. It does not seem to me that it is for the prosecution to express an opinion about anything. But I do at least consider that cases may arise where it is legitimate to require the prosecution to make clear the basis upon which they are proceeding. That basis could include one only of the two sub-subparagraphs. They could, as I have indicated, in fact, equally proceed on one or the other, or indeed both. Suffice to say that in an appropriate case, the prosecution should make clear what case they are seeking to establish. That, as I understand it, is capable of applying to absolutely any prosecution that ever was.

If one turns, as indeed I consider it was entirely legitimate for the prosecution and the District Judge to do in the present case, to section 28(1)(b), then in my judgment, and Mr Jones does not submit otherwise, it was indeed open to the prosecution to call evidence outside the immediate time span of the offences charged if and insofar as that was probative of the motive of racial hostility to which section 28(1)(b) applies.

I would answer question (1) set by the District Judge to the effect that she was entitled to find on the evidence that the racially aggravated offences alleged against RG were racially aggravated in the meaning of section 28(1)(b). I would answer the second question that she was entitled to use the evidence relating to the other incidents to support a finding that the offences were at least in part racially aggravated. I would answer her third question, to the effect that it was not necessary to make a specific finding on the facts of this case, that RG individually on each occasion demonstrated racial motivation as his present consistent membership of the group amounted to more than mere presence on each occasion and was sufficient to justify a finding that RG's offending was racially motivated. Indeed, the evidence as set out by the District Judge in the case and, more particularly perhaps, as set out in her 11-page judgment, leaves me in no doubt, as it left her in no doubt, but that the group, of which RG was a part, was acting in a racially hostile way, and with that motivation within the terms of both sections 28(1)(a) and 28(1)(b), and that RG's adherence to that group was entirely sufficient to associate him with that racial hostility for the purposes of the section, even if on individual occasions he did not positively personally demonstrate that hostility, or was not proved to have done so.

The fourth question relates to the evidence of identification. The District Judge found that identification parades should have been held once it was clear that identification was in issue but that, given the strength of the identification evidence, admissions by RG and LT to their presence, confirming the accuracy of the identifications, there was no reason for her to exclude any of the evidence.

The main case relied on in relation to this part of the appeal is R v Forbes [2001] 1 AC page 473 a decision of the House of Lords. The House there held that paragraph 2.3 of the Code of Conduct, although not to be construed to cover every conceivable situation, imposed a mandatory obligation on police officers, expect in limited specified circumstances, that an identification parade was to be held whenever the suspect disputed an identification and he consented to the parade being held. Such a duty was not displaced where there had previously, as in that case, been a full and complete or unequivocal identification by the relevant witness. Accordingly, there had been a breach of paragraph 2.3.

It was, however, additionally held in that case, in which the appeal was dismissed, that any alleged infringement of a defendant's right to a fair trial guaranteed by Article 6 of the Convention of Human Rights was to be assessed in the context of the whole history of the proceedings. Where that right had been infringed, the conviction would be held to be unsafe within the meaning of section 2 of the 1968 Act as amended. But since there had been two informal identifications of the defendant, and since the complainant's street identification had been compelling and untainted, that evidence had been rightly admitted. Where a breach of Code D was established, but the trial judge nevertheless rejected an application to exclude evidence on that account, he should explain to the jury that there had been a breach and the circumstances in which it arose and invite them to consider its possible effect. But since the absence of such a direction could not have affected the jury's verdict, the defendant's trial was not unfair nor was his conviction unsafe.

Three things therefore: firstly, where identification is disputed, other than in exceptional cases, such as are not relevant for the present appeal, there should be an identification parade; not to do so would be a breach of paragraph 2.3 of Code D. Secondly, a failure to have an identification parade does not mean that a judge should exclude other identification evidence simply for that reason alone. On the contrary, it may well be fair to admit compelling and untainted identification evidence even though there had been no identification parade. Thirdly, where there had been a breach of Code 2.3, the trial judge in a jury case should explain that to the jury, and ask them to take it into account to consider its possible effect. Not to do so, however, does not necessarily mean that a conviction based upon compelling and untainted identification evidence would be unfair.

The District Judge in the present case plainly directed herself correctly as to the absence of an identification parade. She held that such a parade should have been held. She also plainly directed herself to the effect that that could have had on the reliability of the identification evidence that was called and on her assessment of it. It is not seriously submitted on behalf of RG that there was not adequate and reliable identification of him in the present case. He was known to at least two of the complainants and they identified him on a number of occasions.

The point is, however, taken by Miss Harris, on behalf of LT, that in his case, because there was no identification parade, the evidence of identification should not have been admitted. The points that she makes are by reference to paragraph 26 of the judgment of the House of Lords in Forbes. That paragraph reads as follows:

Miss Harris submits that in the present case there was a particular reason why the identification evidence was insecure, and that is because there was a conflict between the evidence of the two employees at the library. The evidence, which the District Judge accepted, of Neeta Sharma was that she knew LT and she recognised him as being one of the people who was involved in the fight and the kicking. The evidence of Mr Pari was to the contrary effect. He too knew LT and he stated that LT was in front of the door with a hat on and not involved in the kicking.

Miss Harris submits that an identification parade would have made a real and material impact on the evidence: either it would have confirmed the identification or it would have tended to disprove it. As things were, the evidence, taken as a whole, she submits, was equivocal and it was difficult to say which of the two were correct.

There appears to have been a basis for distinguishing between LT, with his coat covering his head, and the person shown on the video as a small boy in a dark hooded top, who remained at the entrance. However that may be, in my judgment, the District Judge was entitled to admit the evidence of each of the two members of the library staff and, having admitted it, to make her judgment as to which of those two witnesses' evidence should be accepted. She clearly regarded the identification evidence, in particular in relation to LT, as being strong. She says so. She clearly was able to make a judgment which accepted, in particular, the evidence of Neeta Sharma. Having admitted the evidence, she was entitled, evidence having been called by both RG and LT, to take account of admissions which they made. In my judgment, she directed herself entirely correctly in accordance with the case of Forbes, to which she was referred. I would answer her fourth question that she was entitled to rely upon the identification evidence and to make a judgment about it.

For these reasons, I would dismiss RG's appeal; he relying on the matters raised in questions 1 to 4 only. I would also dismiss LT's appeal against conviction because his appeal against conviction relies on essentially the matter raised in question 4, and so far as conviction is concerned no question of racial aggravation arises.

Question 6, however, is directed towards the use of section 153 of the Powers of Criminal Courts (Sentencing) Act in relation to the sentences for affray. So far as RG is concerned, it is not submitted on his behalf that it was inappropriate for the District Judge to take account of the racial aggravation which she had found when sentencing him for affray. Plainly, in my judgment, she was right to do so.

Miss Harris submits that so far as LT is concerned the District Judge was wrong to proceed in this way. The basis of this submission is simply this. Miss Harris tells us, and Mr Squire accepts, that at the start of the trial what might colloquially be called "a deal" was done between the prosecution and those representing LT that the racial aggravation element should be withdrawn from the two charges that he had to face. Accordingly, originally being charged with racially aggravated common assault, he only had to face a charge of common assault; and originally charged with racially aggravated affray, he only had to face a charge of affray. This was done, we are told, at the start of the trial and before it was appreciated that there was no such offence as racially aggravated affray. Miss Harris tells us that she thereafter understood that LT did not have to face any allegation based upon racial aggravation and that she conducted his case accordingly. She goes on to submit that when it came to sentence since it was not alleged against LT that he had been concerned in a racially aggravated way, then it was not open to the judge to resort to section 153 in order to increase the seriousness of the offence.

Mr Squire, whilst accepting that he agreed that the charges against LT should be diluted in the way that I have described, and whilst they were so diluted, first of all does not accept that there was not material upon which the District Judge might not have found that racial aggravation applied to him. Secondly he submits that it is a matter for the court under section 153 and not for the prosecution to determine whether an offence is aggravated by racial matters in the way that that section prescribes.

In my judgment, in other cases, that may well be the case. I refrain from saying anything at length as to the way in which in other cases factual matters relating to racial aggravation would be put before the court for the purpose of sentence. I apprehend, in short, that that might take place during the course of the trial, even though no element of racial aggravation was charged; or, alternatively, that it might possibly be done by way of a Newton hearing when further evidence was called after conviction.

However that may be, in the present case it seems to me that Miss Harris is correct in saying that it was not open to the District Judge to regard LT's conviction for affray as being aggravated for sentence purposes by matters which, by agreement, had been withdrawn from that which he had to face. It seems to me that although, of course, it is for the court to determine on the material properly before it the seriousness of any offence in any case in a criminal trial, nevertheless the court is circumscribed by the ambit of the offence which is charged, and the ambit of the offence for which the defendant is convicted.

In the present case, the ambit had been reduced by the omission of the racially aggravated element. What is more, and additionally, it does seem to me that where Miss Harris on behalf of LT was led to suppose that he, and she on his behalf, did not have to deal with questions of racial aggravation, then it was not open to the judge to introduce those at the stage of sentencing.

Accordingly, I would allow LT's appeal on that limited basis and in relation to sentence only. We are told that he was sentenced for the two offences of which he was convicted to 18 months' supervision concurrent; a compensation order of £100 to IH; a 12 months' parenting order, including three months counselling and was ordered to pay £200 by way of costs. We are also told by Miss Harris, and Mr Squire is not in a position to gainsay this, that the District Judge indicated that if the racial aggravation element had not been, as she thought it was, present and available as aggravation, she would have imposed not an 18 month but a 12 month supervision order. There is some ambiguity as to the basis of the parenting order, but it does seem to me that the best we can make of the information we have, is that the three month counselling included the racial element, and that the 12 month parenting order may well have been appropriately referable to the affray charge generally.

In these circumstances, in my judgment, the right and fair thing to do in allowing the appeal against sentence for LT, is to allow the appeal; to remit the matter to the District Judge with a direction that she reduce the 18 month supervision order to 12 months, but to leave the 12 months' parenting order where it is. It may well be that the three months' counselling has already taken place.

We understand from Miss Harris that LT is concerned in other matters, to have the section 153 element of his sentence withdrawn, as this may be of assistance to him in relation to other matters for which he is concerned. Suffice to say, for that purpose, that, in my judgment, the District Judge should not have regarded the two offences of which he was convicted as racially aggravated in the way that she did. I trust that saying that will serve whatever purpose it may in other respects.

In the result, in my judgment, RG's appeal should be dismissed. LT's appeal against conviction should be dismissed, but his appeal against sentence should be allowed to the extent that I have indicated.

MR JUSTICE NELSON: I agree.