No: 200703602 D4 
Neutral Citation Number: [2007] EWCA Crim 2737
IN THE COURT OF APPEAL
CRIMINAL DIVISION 
Royal Courts of Justice
Strand
London, WC2A 2LL 

Thursday, 25th October 2007
 
B e f o r e:

LORD JUSTICE LATHAM
VICE PRESIDENT OF THE COURT OF APPEAL CRIMINAL DIVISION 

MR JUSTICE BURTON 
 
MR JUSTICE TEARE 
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R E G I N A 

v 

RICHARD JOHN BABBS
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Mr J Durr appeared on behalf of the Appellant
Mr D Wilson appeared on behalf of the Crown
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J U D G M E N T 

1.	LORD JUSTICE LATHAM:  On 28th June 2007, in the Crown court at Ipswich, the appellant was convicted of racially aggravated assault by beating.  The wording of the count was as follows: 
"Richard John Babbs on the 16th day of October 2006 assaulted Kazol Miah by beating and at the time of doing so, or immediately before doing so demonstrated towards Kazol Miah hostility based on his membership or presumed membership of a particular racial group such that the offence was racially aggravated within the meaning of Section 28 of the Crime and Disorder Act 1998."
He was in breach of a suspended sentence and on 24th July 2007 was sentenced to 12 months' imprisonment in relation to the offence with which we are concerned and was further sentenced to a consecutive sentence of 16 weeks' imprisonment, which was giving effect to the suspended sentence to which he was subject.  He appeals against conviction by leave of the Single Judge.
2.	The evidence before the jury was, firstly, the evidence of Kazol Miah, who was the victim; a companion, Margiul Dexter‑Baxter; and the manager of the Kentucky Fried Chicken restaurant in which the events with which we are concerned took place.  
3.	The victim and his companion were awaiting service in the restaurant and in the queue was the appellant.  It is apparent that the appellant had seen the victim and the person he described as his wife in the neighbourhood and, it would appear it may well be because he was affected by drink, the appellant started to abuse the victim and his companion.  The evidence of the victim was that the appellant said: 
"You're living on the system.  You're conning the system.  You foreign fuckers, you do not deserve to be here."
There was undoubtedly a scuffle and an argument at that stage, which the manager of the restaurant and other members of the staff manage to quell.  For a time, which was variously estimated as between five and 15 minutes, there was no further difficulty between the appellant and the victim and his companion.  However, there came a time when the appellant managed to get to the head of the queue, it would appear having queue jumped so far as the appellant was concerned.  He got his food and, as he passed the victim, he waved his bag of food in front of the victim, making it apparent that he was gloating over the fact that he had managed to be served first.  He was not simply gloating but he was also aggressive and said words to suggest that the two of them should go outside, with the implication that they should fight.  The appellant said that at that stage the victim called him "white trash" and indeed there was support for that from the manager of the restaurant.  Whatever may be the case, the appellant then headbutted the victim.  That was the incident upon which the charge was based.
4.	The appellant never denied that he had headbutted the victim and indeed was prepared to plead guilty to assault, in other words accepting that he had no lawful excuse for doing so.  He denied, however, that he had ever said the words attributed to him by the victim describing the victim and his companion as "foreign fuckers".  That was therefore the factual issue between the prosecution and the defence at the trial.  However, counsel on behalf of the appellant submitted at the end of the prosecution case that, even on the prosecution's evidence, the count charged was not made out because the words used had not been spoken immediately before the incident of assault so as to justify the conclusion that the racially aggravated form of the offence had been committed.
5.	The racially aggravated form of the offence can be committed in two ways: firstly, as charged in this case under section 28(1)(a) of the Crime and Disorder Act 1998, when, 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 his membership (or presumed membership) of a particular racial group or, alternatively, under section 28(1)(b), that the offence was motivated, wholly or partly, by such hostility.
6.	The judge was referred to the case of Parry v DPP [2004] EWHC 3112 (Admin) in which the divisional court had considered the effect of section 28(1)(a).  Giving the judgment of the court in that case, Field J described the requirement of immediacy as requiring the hostility shown to be "in the immediate context of the substantive offence".  In that case, the words which indicated racial hostility had been spoken some 20 minutes or so after the incident in question, after the offender had left the scene and had indeed arrived home and were spoken in the absence of the victim.  The court there held that there was no sufficient connection between the words used and the offence.  The judge in the present case rejected the submission on the basis that there was sufficient evidence to go to the jury to establish that there was a connection between the words that were used and the event as to meet the requirements of section 28(1)(a).  
7.	Mr Durr, in presenting this appeal, submits in the first instance that the judge was wrong to leave the matter to the jury.  He submits there was no sufficient connection established as to justify the conclusion that the subsection's requirements were met.  
8.	It seems to us that the judge was entitled to leave the matter to the jury.  Although he talked in terms of continuum, the point that is of importance in the subsection is that it is directed not so much to words but to the hostility which is demonstrated towards a victim with the relevant connotation.  The words used by the appellant were, it seems to us, capable of colouring the behaviour of the appellant throughout the subsequent events.  He had evinced hostility which, by reason of the words he used, could be said to have been based upon race.  The jury were perfectly entitled to conclude that the hostility shown later was based upon the same reasoning, if reasoning is the right description of it, that had been evinced in the words that the appellant had used earlier and, accordingly, that hostility based upon race was evinced over a continuing period from the moment that the words were first used to the moment that it exploded into the ultimate violence in question.
9.	If that be the correct approach, the question then is whether the judge directed the jury properly in relation to the events that evening.  The judge in his summing‑up seems in the first instance to have directed the jury simply to look at the words themselves when at one point in his summing‑up he said, as to the question which the jury had to ask itself:
"Were they [the words] said immediately before the assault alleged.  That is the second issue."
For the reason that we have given, that may have been a rather simplistic way of putting the matter to the jury; but the judge then went on to make it plain that he was giving them that direction in the context of the issue which he subsequently refined as "did the appellant demonstrate hostility immediately before assaulting the victim", and he ultimately left the jury with the following direction: 
"'Are we satisfied that immediately before doing so he demonstrated to me [sic] a hostility based on his membership of a particular racial group?"
10.	The judge made it plain that that was an issue of fact for the jury to determine.  It seems to us that he was correct to do so and adequately indicated to the jury that they had to determine the question of whether or not the words used had so affected the subsequent behaviour as to justify the conclusion that in the end the hostility which was clearly evinced immediately before the assault was indeed affected by the racial connotation implied in the words used earlier.  For those reasons, we consider that this verdict was entirely safe and we dismiss the appeal.