Guidance on prosecuting cases of racist and religious crime
"Hostility"
To prove that an offence is racially or religiously aggravated, the prosecution has to prove the "basic" offence followed by racial or religious aggravation, as defined in section 28 Crime and Disorder Act 1998. An offence will be racially or religiously aggravated if:
- at the time of the offence (or shortly before or after), the offender demonstrates to the victim hostility based on the victim's membership (or presumed membership) of a racial or religious group, or
- the offence is motivated wholly or partly by hostility towards members of a racial or religious group based on their membership (or presumed membership) of that group.
- demonstrating hostility is not defined by the Act. The ordinary dictionary definition of hostile includes simply being "unfriendly". Proving this limb of the offence requires evidence of words or actions which show hostility toward the victim. However, this hostility may be totally unconnected with the "basic" offence which may have been committed for other, non-racially or religiously motivated reasons. For example, an assault which takes place because of an argument over a parking place, but where the offender then utters racial abuse to the victim of the assault would come within the scope of this part of section 28.
- motivated by hostility may prove more difficult in practice. In the absence of a clear statement by the accused that his/her actions were motivated by his hostility to his victim based on his race or religious belief, for example, an admission under caution, how can motive be shown? In some cases, background evidence could well be important if relevant to establish motive, for example, evidence of membership of, or association with, a racist group, or evidence of expressed racist views in the past might, depending on the facts, be admissible in evidence.
The following cases illustrate the approach that the courts have adopted when interpreting the law.