DPP v Dykes

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.

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.

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.”

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.

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.”

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.

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.”

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.

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).

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.

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).

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?

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...