REGINA v Valentine

Factual and Procedural Background

On 3rd and 9th July 2015, the Appellant was involved in two separate incidents with Ms Moloney, a practising Muslim. The first incident involved the Appellant directing religiously aggravated abusive language towards Ms Moloney, including telling her to remove her headscarf and accusing her of being a terrorist. The second incident involved the Appellant using racially aggravated abusive language directed at Ms Moloney's son. The Appellant was convicted at trial in the Crown Court Kingston-upon-Thames of religiously aggravated intentional harassment, alarm or distress (count 1) and racially aggravated intentional alarm or distress (count 2), contrary to section 31(1)(b) of the Crime and Disorder Act 1998. She received a 12-month community order with conditions and a restraining order. The Appellant appealed against the convictions by leave of the single judge.

Legal Issues Presented

1. Whether the late amendment to count 2 of the indictment was properly allowed and whether it affected the safety of the conviction.
2. Whether the correct "victim" was identified for the purposes of the racially aggravated offence under section 28 of the Crime and Disorder Act 1998, specifically whether the victim was Ms Moloney or her son.
3. Whether the conviction on count 2 was safe given the statutory requirements and the evidence presented.
4. Whether the conviction on count 1 was rendered unsafe by issues arising from count 2, particularly concerning evidence of bad character.

Arguments of the Parties

Appellant's Arguments

• The amendment to count 2 was wrongly allowed late in the proceedings, causing unfairness.
• The victim for the purposes of the racially aggravated offence under section 28 was Ms Moloney, not her son, and the judge erred in directing the jury otherwise.
• The conviction on count 2 was therefore unsafe as it was based on an incorrect legal construction of the victim.
• The conviction on count 1 was unsafe because evidence admitted on count 2 constituted bad character evidence not properly admitted under the Criminal Justice Act 2003.
• The Appellant maintained the defence case that the incidents were fabricated and denied the allegations.

Prosecution's Arguments

• The amendment to count 2 was necessary due to the absence of the son's name and was properly allowed with the judge's discretion.
• The evidence supported that hostility was demonstrated towards the son, who was the victim for the purposes of the racially aggravated offence.
• The convictions on both counts were safe and properly supported by the jury's acceptance of the Crown's evidence.
• The evidence on count 2 was properly joined and did not prejudice the conviction on count 1.

Table of Precedents Cited

No precedents were cited in the provided opinion.

Court's Reasoning and Analysis

The court analyzed the statutory provisions relevant to the offences charged, focusing on the Crime and Disorder Act 1998 and the Public Order Act 1986. The court examined the wording of count 2 as originally indicted and as amended, noting that the amendment changed the victim from Ms Moloney to her son. The court emphasized that for a racially aggravated offence under section 28, the victim must be the victim of the underlying basic offence under section 4A of the 1986 Act. The evidence showed distress to Ms Moloney but did not establish distress to her son, who was the person to whom the abusive words were addressed. The judge had directed the jury on racial aggravation in terms of hostility towards the son, who was not established as the victim of the basic offence. This constituted a fundamental error in the identification of the victim for the aggravated offence.

The court found that the late amendment to count 2 compounded the lack of clarity and contributed to the unsafe nature of the conviction on that count. The court concluded that the conviction on count 2 was unsafe and quashed it. However, the court exercised its power under section 3 of the Criminal Appeal Act 1968 to substitute a conviction for the basic offence under section 4A of the 1986 Act without the racial aggravation.

Regarding count 1, the court rejected the argument that the conviction was unsafe due to the evidence admitted on count 2, noting the offences were properly joined and tried separately, with the jury directed to consider each count distinctly. The court found no prejudice or taint affecting count 1's conviction.

The court also addressed sentencing, reducing the community order to 9 months concurrent on each count to reflect the substituted conviction.

Holding and Implications

The court’s final decision was to allow the appeal in part by quashing the racially aggravated conviction on count 2 and substituting it with a conviction for the basic offence of intentional harassment, alarm or distress under section 4A of the Public Order Act 1986. The appeal against conviction on count 1 was dismissed.

The implication of this decision is that the Appellant’s conviction on count 2, as a racially aggravated offence, was unsafe due to misidentification of the victim and procedural issues with the indictment amendment. The substituted conviction reflects a lesser offence without racial aggravation. The conviction on count 1 remains undisturbed, affirming the original finding of religiously aggravated harassment. No new legal precedent was established; the ruling clarifies the importance of correctly identifying the victim in racially aggravated offences and the necessity for clarity in indictment amendments. The sentence was correspondingly reduced to reflect the lesser offending pattern.