Religiously and racially aggravated offences

Rene Barclay, of the CPS, examines the charging and sentencing processes for crimes which are religiously or racially aggravated

The Charge

Sections 29 to 32 of the Crime and Disorder Act 1998 (CDA) provide for specific statutory offences, which are racially aggravated. Such offences comprise two component parts; the basic offence and the element of racial/religious aggravation.

In order to prove such offences, the prosecution must establish, firstly, that the defendant committed the relevant basic offence (for example assault, criminal damage, threatening behaviour or harassment) and, secondly, that the basic offence was religiously/racially aggravated.

Section 28 (1) CDA provides that an offence is racially or religiously aggravated for the purposes of sections 29 to 32 if;

(a) at the time of committing the offence, or immediately before or after doing so, the defendant demonstrates towards the victim of the offence hostility based on the victims membership or presumed membership of a racial or religious group,

or

(b) the offence is motivated (in whole or in part) by hostility towards members of a racial group based on their membership of that group.

Subsection (b) requires the prosecution to establish the relevant state of mind of the defendant, while subsection (a) requires the prosecution to prove facts (what the defendant did or said) which indicate that the defendant demonstrated racial/religious hostility.

Clearly there is an evidential overlap between the two subsections. Take the case, for example, of an offence of threatening behaviour contrary to section 5 Public Order Act 1986. Evidence that, at the time of committing this offence, a defendant held up a racist banner or shouted racist abuse, will be relevant to proving both a racist motivation [subsection (b)] and a demonstration of racial hostility [subsection (a)].

Very often the evidence in a case may establish the ingredients of both subsections and not merely one.

In cases where the evidence of racial/religious aggravation does not neatly fit within one subsection or the other, or where it establishes both the relevant motivation and demonstration of hostility, how should the prosecutor reflect that when deciding how to frame the charge or charges on the indictment?

Is it necessary to frame two counts, one alleging racial/religious aggravation under section 28 (1) (a) and one under section 28 (1) (b), or will one count alleging both limbs suffice?

No one count of an indictment should charge the defendant with having committed two or more separate offences (Rule 4 (2) Indictments rules 1971); this is sometimes known as the rule against duplicity.

However, where one offence can be committed in the alternative or with different intents, then it is lawful to charge it in one count (Rule 7).

When charging an aggravated offence contrary to the relevant subsection of section 29, 30, 31 or 32 CDA, it is clear that, provided the count alleges one basic offence (for example, wounding, criminal damage or threatening behaviour) then, applying Rule 7, it does not offend the rule against duplicity to plead both limbs of section 28 (1) in the particulars. This is because section 28 (1) simply defines the alternative ways of proving the same ingredient of the offence. It does not create two offences.

For example, racially aggravated common assault contrary to section 29 (1) (c) creates one offence, although it can be committed in different ways. Alleging in such a case that a defendant’s conduct fell within both limbs of section 28 (1) does not amount to an allegation that he committed two offences of aggravated criminal damage. The same holds true for each of the other sections: 29 (1) (a) and (b), section 30 (1), section 31 (1) (a), (b) and (c), and finally sections 32 (1) (a) and (b).

It therefore follows that, where the evidence justifies it, there is nothing in

law to prevent a prosecutor drafting one count alleging both limbs of section 28 (1). As a matter of best practice, however, where the evidence is clear