Taylor v Director of Public Prosecutions

Factual and Procedural Background

This opinion concerns an appeal by way of case stated from a decision of District Judge Black at Tower Bridge Magistrates' Court on 30th March 2005. The appellant was convicted of an offence under section 5(1)(a) of the Public Order Act 1986, which was racially aggravated under section 31(1)(c) of the Crime and Disorder Act 1998, and was fined £100.

The facts, as recorded, are that on 2nd December 2004 in Walworth, South East London, two police officers attended an address following a call for ambulance assistance. The appellant was shouting that she had been assaulted and was intoxicated. Upon leaving the premises, she used racially abusive language, including phrases such as "fucking nigger" and "fucking coon bitch." The language was heard by at least one police officer and, it was found, by others nearby, including the ambulance crew and neighbours. The District Judge found the offence to be racially aggravated and that the language used was abusive and likely to cause distress.

Legal Issues Presented

1. Whether the offence under section 5(1)(a) of the Public Order Act 1986 was properly established by evidence that the appellant’s words were "within the hearing" of a person likely to be caused harassment, alarm, or distress.
2. Whether the offence was racially aggravated under section 31(1)(c) of the Crime and Disorder Act 1998, and if so, under which form of racial aggravation as defined in section 28(1)(a) or (b) of that Act.
3. The proper interpretation of the phrase "within the hearing or sight of a person" in the context of section 5 offences.
4. Whether the District Judge made sufficient findings of fact, particularly regarding who heard the abusive words and who was likely to be caused distress.
5. Whether the appellant’s conduct was motivated, at least in part, by racial hostility as required for a racially aggravated offence under the Crime and Disorder Act 1998.

Arguments of the Parties

Appellant's Arguments

• The District Judge’s statements about who heard the racially abusive language were opinions rather than findings of fact, and were not expressed in open court.
• There was no explicit finding that anyone other than one police officer actually heard the abusive words.
• The prosecution must prove that someone actually heard the words for the offence to be established under the "within the hearing" requirement.
• There was no finding that the police officer who heard the words was likely to be caused distress; the judge’s general reference to "anybody" was insufficient and should not include police officers.
• The appellant could not properly be convicted of a racially aggravated offence under section 28(1)(a) because there was no evidence that the victim(s) towards whom hostility was demonstrated were those who heard the words.
• The District Judge failed to make any finding regarding the appellant’s motivation for racial hostility required under section 28(1)(b).
• The use of racist language might have been casual or humorous and not motivated by racial hostility.
• There was no clear finding that the woman referred to in the appellant’s language existed.

Respondent's Arguments

• The ambulance crew and neighbours were present and able to hear the appellant’s racially abusive language, which was not disputed.
• The phrase "within the hearing" does not require that the prosecution call a witness who actually heard the words, but that there is evidence someone was able to hear them.
• The District Judge’s finding that the offence was racially aggravated was sufficient to support a conviction under section 28(1)(b), i.e., that the offence was motivated at least partly by racial hostility.
• The use of clearly racist language demonstrated hostility towards members of a racial group, satisfying the motivation requirement.
• The victim of the racial hostility need not be present or the person who heard the words, as hostility towards one member of a racial group suffices.

Table of Precedents Cited

Court's Reasoning and Analysis

The court began by examining the factual findings made by the District Judge, particularly the presence of police officers, ambulance crew, and neighbours who were near enough to hear the appellant’s racially abusive language. Although the District Judge’s statements on who heard the language were described as "opinions," the court found these were inherent in the facts and supported by undisputed evidence. The court rejected the appellant’s argument that actual hearing by more than one person was required, preferring the interpretation that it suffices if there is evidence someone was able to hear the words, aligning with Collins J’s reasoning in Holloway.

Regarding the likelihood of distress, the court held that the District Judge’s reference to "anybody" who heard the language must logically include the police officer who testified to hearing the words. It was not necessary to exclude police officers from the category of persons likely to be caused distress.

On the issue of racial aggravation, the court distinguished between two forms: (a) demonstration of hostility towards the victim, and (b) motivation by hostility based on racial membership. The court agreed with the respondent that the evidence did not support a conviction under paragraph (a) because the victims who heard the words were not necessarily the subjects of hostility. However, the court found that the appellant’s use of clearly racist language showed motivation, at least in part, by racial hostility under paragraph (b).

The court reasoned that hostility towards one member of a racial group suffices to satisfy the motivation requirement and that the absence of an explicit finding on motivation did not preclude an inference of racial hostility given the nature of the language used. The court also noted that the presence or absence of the woman referred to in the appellant’s language was implicitly accepted and did not require a specific finding.

Ultimately, the court dismissed the appellant’s arguments and upheld the conviction, clarifying the interpretation of "within the hearing or sight of a person" and the application of racial aggravation provisions.

Holding and Implications

DISMISSED

The court upheld the conviction for the racially aggravated offence under section 5(1)(a) of the Public Order Act 1986 as amended by the Crime and Disorder Act 1998. It confirmed that evidence that persons were near enough to hear abusive words suffices to satisfy the "within the hearing" requirement, without the necessity of proving actual hearing by multiple persons. The court also clarified that racial aggravation may be established by motivation partly based on racial hostility towards a member of a racial group, even if the victim is not the person who heard the words. No new precedent was established beyond clarification of existing principles, and the direct effect is the affirmation of the appellant’s conviction and fine.