Where a defendant is tried for a RRAO in the Crown Court and there is insufficient proof of racial or religious hostility, the judge may allow the jury to return an alternative verdict regarding the basic offence.156 This means that, if the jury is not satisfied of the aggravated element of the offence, the defendant can be found guilty of the basic offence.
Allowing the jury to return an alternative verdict, rather than considering only the aggravated offence, can prevent the jury from facing a stark choice in circumstances where the
aggravated element cannot be proven but there is clear evidence of the basic offence. The choice is between: 1) convicting of the aggravated offence so that the defendant does not escape liability for the basic offence (i.e. over-conviction), or; 2) acquitting of the aggravated offence despite clear evidence of the basic offence (i.e. under-conviction). To avoid juries being faced with this kind of difficult choice, in the case of Coutts, the House of Lords held that the public interest in the administration of justice would be best served “if in any trial on indictment the trial judge leaves to the jury, subject to any appropriate caution or warning, but irrespective of the wishes of trial counsel, any obvious alternative offence which there is evidence to support.”157 Applying this to the hate crime offences, an alternative verdict of the basic offence should ordinarily be available when a RRAO is tried.
Another option is to put separate counts on the indictment, one covering the aggravated offence and one covering the basic offence, rather than waiting until the end of the case to leave an alternative verdict to the jury. The vast majority of CPS interviewees, who are responsible for charging decisions, expressed a preference for alternative counts on the indictment rather than alternative verdicts, with one CPS interviewee describing this as “good practice” (Interview CPS 09). The experience of Crown Court judges was mixed, with many, but not all, stating that they typically encountered both counts on the indictment. All of the judges who expressed a preference, preferred both counts to be on the indictment, primarily for the sake of transparency and because they felt that it made it easier for the jury to understand the issues in the case:
156 Criminal Law Act 1967, ss. 6(3) and 6(3A); Criminal Justice Act 1988, s. 40; Crime and Disorder Act 1998, ss. 31(6), 32(5) and 32(6).
157 Coutts [2006] UKHL 39 [23]. See also Foster [2007] EWCA Crim 2869; Barre [2016] EWCA Crim 216.
“[T]he modern practice is not just to be telling the jury at the end of the day that there’s a secret hidden lesser alternative, but to set it out right at the very beginning that there are not two counts, there are four counts, and you’ll only have to consider count two and count four if you’re unsure about count one and count three.” (Interview Crown Court Judge 07)
If the basic offence is not on the indictment at the start of the trial, some judges said that they would direct the prosecution to add it during the trial.
This preference for alternative counts on the indictment was echoed by the majority of independent barristers. There was concern amongst some barristers that the failure to add an alternative to the indictment could result in defendants being acquitted, despite there being cogent evidence of the basic offence having been committed. For instance, in one case described to us, the defendant had left a severed pig’s head outside a Muslim-owned building which was planned to become a place of worship:
“… he essentially admitted the basic offence … But, because it wasn’t on the indictment, and for whatever reason the jury weren’t directed that they could find him guilty of the basic offence, so he was acquitted … of the entire thing.” (Interview Independent Barrister 17)
However, most Crown Court judges stated that, when only the aggravated offence is on the indictment, juries are usually directed that they can return an alternative verdict.
A small minority of interviewees were not in favour of alternatives. Two CPS lawyers did not see the value in leaving an alternative in any form (irrespective of whether it would be on the indictment or left to the jury at the end of the case), preferring to “nail [their] colours to the mast” (Interview CPS 03). Another two CPS lawyers said that the desirability of an alternative depends on the nature of the offence. If, for example, the defendant is accused of a racially aggravated public order offence, where the demonstration of racial hostility constitutes both the basic and aggravated offending behaviour, it can be seen as detrimental to put forward both offences:
“Now there are some occasions … where, if you haven’t got the aggravated offence, in fact you haven’t got anything. And in those cases I’m a little bit wary of charging the basic one, because it’s almost that you’re suggesting that you’ve got some doubts about your own case, and it needs to be handled quite carefully.” (Interview CPS 01)
For a further two CPS interviewees, whether an alternative should be available depends on how central the aggravated element is to the case, regardless of the type of offence. One CPS lawyer provided the following example:
“[W]here all the evidence you have effectively is that this is an offence that meets the criteria to be a hate crime, then we should really just nail our colours to the mast and proceed on that offence. Because that is what the complainant has made a complaint about … they haven’t said that ‘I’ve been assaulted’; what they’ve said to you is ‘I’ve been assaulted and it’s a hate crime’”. (Interview CPS 15)
This perspective can also be observed in case law. In Mihocic,158 the appellant argued that the trial judge had been wrong not to leave an alternative verdict in relation to a count of racially aggravated harassment, and that the jury’s finding of guilt might have been a means of ensuring liability for the basic offence, rather than an acceptance of racial aggravation.
The Court of Appeal upheld the conviction, finding that the real gravamen of the count was whether racial abuse had been used, and, so, it was understandable that only the
aggravated count had been left to the jury. This was held even though, on the facts, it was possible for the defendant to have committed a basic harassment offence in the absence of racial aggravation.
As well as occasionally appearing unnecessary or detrimental to the prosecution case, including the basic offence on the indictment or leaving an alternative verdict to the jury might overly complicate the jury’s task. However, as we explain below in section 7.1.1, judges and lawyers do not perceive this to be a problem in practice. It is also possible that, if the basic offence is available, the jury might prefer to convict of the basic offence when they otherwise would have convicted of the aggravated offence. Several responses to the Law
Commission’s consultation on the aggravated offences indicate that juries can be reluctant to convict defendants of aggravated offences, resulting in apparently “unjust acquittals”.159 This is consistent with a widespread perception amongst our interviewees that juries are reluctant to convict of aggravated offences. As one Crown Court judge put it:
“[I]n a lot of these cases the jury do compromise, and they won’t convict of the racially aggravated part. And I suspect that’s why: that it’s difficult for the jury to come to a conclusion that this really is a racist incident, when they perceive what happened – if they’re sure it did – as merely an insult said in the heat of the moment. And I think that might be a reason why a lot of juries compromise and will only convict of the lesser offence.” (Interview Crown Court Judge 09)
While conviction rates in the Crown Court are lower than in the Magistrates’ Court,160 we cannot, with any degree of confidence, attribute this to alternative charges or verdicts. Even without the alternative, there are a number of reasons why jurors might acquit defendants of RRAOs, including their reluctance to label defendants as “haters” or “racists” (this is
discussed further in section 8.4), and shortcomings in the way in which evidence of hostility is collected or presented (see section 6).
Overall, the responses from interviewees indicate that it is good practice to ensure that an alternative is available, and there was a strong preference for putting the alternative count on the indictment, rather than leaving an alternative verdict to the jury at the end of the trial.
However, there is scope for a more consistent practice, particularly since some cases may
158 [2012] EWCA Crim 195.
159 Law Commission, Hate Crime: Should the Current Offences be Extended? (Law Com No 348, 2014) para 4.175
<https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/316103/9781474104852_Print.pdf>
160 In 2012, the conviction rate for all RRAOs in the Crown Court was 63.7%. In the Magistrates’ Court, in 2012, the conviction rate for RRAOs was 74%. Note, however, that only 481, of a total 8,898 defendants, were found not guilty – with most other cases being dropped early on. See Home Office, Ministry of Justice and Office for National Statistics, ‘An overview of hate crime in England and Wales’ (2013), Appendix Tables 3.07 and 3.08.
<https://www.gov.uk/government/statistics/an-overview-of-hate-crime-in-england-and-wales>
be inconsistent with the principle set out by the House of Lords in Coutts that it is in the public interest for any obvious alternative charge to be left to the jury.
RECOMMENDATION
We recommend that the basic offence should ordinarily be left to the jury. The exception is cases where, without the hostility element, there is no basic offence. For example, public order offences where the demonstration of hostility constitutes both the basic offence and the aggravation. In other cases, the basic offence will usually be an obvious alternative, as it forms part of the aggravated offence. As such, the elements of the basic offence will be in issue, and both the prosecution and the defence should be prepared to address them. We further recommend that the basic offence ordinarily be included on the indictment from the start of the trial, so that the jury, as well as the judge and parties to the case, have a clear statement of the issues which the jury must determine. Including the basic offence on the indictment is consistent with CPS guidance on drafting indictments,161 but should be stated more clearly in prosecution guidance on racist and religious crime, which currently states that
“[w]here the Criminal Law Act 1967 does not apply … or where there are no statutory provisions for alternative verdicts, consideration has to be given to including alternative counts on the indictment”.162 Concerns that leaving an alternative may weaken the
prosecution’s case cannot override the public interest in avoiding under- or over-conviction in hate crime cases.163
Before reaching this recommendation, we took account of the possibility of overloading indictments, as explained below.
7.1.1 Overloading indictments
We asked interviewees whether alternative counts or leaving alternative verdicts to the jury could raise the possibility of overloading the indictment or confusing jurors, particularly where more than one offence is being tried. In the case of O’Leary, the Court of Appeal took the view that, where there is a risk of overloading the indictment, in some situations it may be preferable to charge only the basic offence(s), so as not to over-complicate the jury’s task.164 The question of whether jurors may be confused by multiple offences and alternatives was met with mixed responses. However, most interviewees took the view that indictments are rarely overloaded, alternatives do not present any significant problems, and juries can cope with multiple charges. There was also a view amongst interviewees that, if there is confusion in complex hate crimes cases, it is no greater than in other areas of criminal law. As one CPS interviewee put it, “in the scheme of things, I don’t think it’s a complexity which is overly difficult compared with other branches of criminal practice in that arena” (Interview CPS 13).
161 Crown Prosecution Service, ‘Drafting the Indictment’ (n.d.) <http://www.cps.gov.uk/legal/d_to_g/drafting_the_indictment/>
162 Crown Prosecution Service, ‘Racist and Religious Hate Crime – Prosecution Guidance’ (2017)
<http://www.cps.gov.uk/legal/p_to_r/racist_and_religious_crime/>. There are statutory provisions for alternative verdicts for RRAOS. See footnote 156.
163 The case law on alternative verdicts makes it clear that the tactical wishes of trial counsel on either side are immaterial. See Barre [2016] EWCA Crim 216 [22].
164 See O’Leary [2015] EWCA Crim 1306 [18].
These views are interesting in the light of the views of some Crown Court judges and
independent barristers that the aggravated offences themselves are complicated and difficult to present to jurors:
“… the wording of the provisions is complex … It’s easy to understand if you’re a highly educated person, but I think, for a jury it’s really quite difficult. It’s a simple idea – that’s the annoying thing!” (Interview Crown Court Judge 06)
Several interviewees noted the benefits of providing juries with written directions or a “route to verdict” document as a way of clarifying the issues that the jury must consider and aiding their understanding of the offences. One judge also noted the benefit of directing juries as to the meaning of racial or religious aggravation, and the elements of the legislation, early on in a trial:
“... if you can get in quite early with the jury to identify where the issues are, then it seems to me that saves a lot of the problems that otherwise we might have if the jury have to wait until the very end, and they get directions all thrown at them all at once.” (Interview Crown Court Judge 07)
RECOMMENDATION
To ease the jury’s task, we recommend that jurors be provided with written directions or
“route to verdict” documents, setting out the issues that must be proven or disproven in respect of each count on the indictment.
7.2 MAGISTRATES’ COURT: ALTERNATIVE CHARGES AND VERDICTS