Hate Crime in UK Law

The requirement of foreseeability will be satisfied where the person concerned is able to foresee, if need be with appropriate legal advice, the consequences which a given action may entail.

I would therefore allow the appeal and require the Director to promulgate an offence-specific policy identifying the facts and circumstances which he will take into account in deciding, in a case such as that which Ms Purdy's case exemplifies, whether or not to consent to a prosecution under section 2(1) of the 1961 Act.

It is very important when assessing the meaning of a Tweet not to be over-analytical. Largely, the meaning that an ordinary reasonable reader will receive from a Tweet is likely to be more impressionistic than, say, from a newspaper article which, simply in terms of the amount of time that it takes to read, allows for at least some element of reflection and consideration. The essential message that is being conveyed by a Tweet is likely to be absorbed quickly by the reader.

Mr Blundell accepted that, on the objective evidence, there was popular societal hostility to gay men, but argued that the level of risk did not cross the relevant threshold for either persecution or infringement of an individual's Article 3 human rights. He argued that, even in the light of the Sobers report, the appropriate thresholds were not crossed. He argued that there was little to sustain Mr Sobers conclusion that gay men generally faced serious ill-treatment in Jamaica.

In relation to the particular circumstances of this appellant, Mr Blundell asked us to follow the Adjudicator's conclusion that what happened to the appellant did not amount to persecution. The two incidents referred to by the Adjudicator, even if taken in conjunction with earlier discrimination, did not amount to serious and persistent ill-treatment.

In reply Mr Chelvan argued that the appellant had identified a number of occasions on which he suffered abuse and items were thrown at him because of his perceived sexuality and that these, combined with the two serious attacks, crossed the required threshold to show that the appellant had suffered both persecution and infringement of his Article 3 human rights. He argued that the forced sexual attack would, on its own, amount to persecution.

CPR rule 52.11(1) restricts an appeal to a "review" of the tribunal decision; but, by rule 52.11(3)(a), the High Court as the appeal court will allow an appeal where the decision of the Disciplinary Tribunal is (a) wrong or (b) unjust because of a serious procedural or other irregularity in the tribunal's proceedings. Laws LJ put it thus in Subesh v Secretary of State for the Home Department [2004] EWCA Civ 56 at [44]: