Case law relating to s. 66 of the Sentencing Act 2020 can be read below. This article was written by Olivia Hopwood, a law student, and verified and approved by a leading criminal law solicitor on behalf of BuDS. It is written mainly for professionals and practitioners, and some may find the language difficult to follow. If you need any help with this article, please contact us.
This article is intended as a supplement to a main article – read it here.
Evidence of words (spoken or written) or actions that show hostility towards the victim will be required. “Demonstrations” of hostility often involve swear words, for example: “black bastard” (R v Woods [2002] EWHC 85) or “African bitch” (R v White [2001] EWCA Crim 216). In RG & LT v DPP[2004] EWHC 183 May LJ said “It may be possible to demonstrate racial hostility by, for instance, holding up a banner with racially offensive language on it”.
In R v Rogers(2007) 2 W.L.R. 280, the defendant was involved in an altercation with three Spanish women during the course of which he called them “bloody foreigners” and told them to “go back to your own country”. The House of Lords, in upholding the defendant’s conviction, held that the definition of a racial group clearly went beyond groups defined by their colour, race, or ethnic origin. It encompassed both nationality (including citizenship) and national origins. The statute intended a broad non-technical approach. Furthermore the victim might be presumed by the offender to be a member of a particular group, even if that was not correct. The House of Lords added that the fact that the offender’s hostility was based on other factors in addition to racist hostility or xenophobia was irrelevant. The court also observed that the necessary hostility could be demonstrated by the wearing of swastikas or the singing of certain songs.
The demonstration of hostility need not be based on any malevolence towards the group in question. Disposition at the time is irrelevant: see DPP v Green[2004] EWHC 1225 (Admin.) and R v Woods, in which it was irrelevant that the offender, who used racially abusive language to a doorman after being refused admission, might well have abused anyone standing in the victim’s place by reference to any obvious physical characteristic.
The motivation based on hostility need not be the sole or main motivation for the offence; it may also be motivated by other reasons. In DPP v McFarlane[2002] EWHC 485 (Admin), the defendant shouted threatening and racist abuse at the victim after finding the victim parked in a disabled bay in which the defendant was entitled to park. It was immaterial that the defendant may have had an additional reason for uttering the racial words in question. Applying this principle, for example, where a wheelchair user is verbally abused by a passenger for causing the train to be delayed whilst ramps are sought, it is immaterial that the main reason for the passenger’s anger is the fact of the delay.
The victim’s reaction to the hostility is not relevant. See R v Woods, in which the victim was called a “black bastard” but said in evidence that he was “not bothered” by such comments. The Administrative Court found that the use of racist abuse during the commission of the basic offence made out the test for racial aggravation.