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Uplifts for Hate Crime: The Importance of Prosecutorial Input by Stephen Wood QC

Tue 31st Aug 2021

A commentary upon R v Taylor [2021] WLR (D) 466 by Stephen Wood QC

This recent case, which came before the Court of Appeal as an Attorney General’s Reference, highlights the importance for prosecutors in identifying cases where an uplift may be appropriate on account of the fact that it may be categorised as a ‘Hate Crime’.

The Defendant and his co-accused were in a car being driven past a young man (the deceased) and his wife. She was a woman of Afghan descent.

The Defendant shouted racist abuse out of the window at the deceased and his wife to which the wife retaliated orally and by gesture. The deceased went to confront the Defendant and his co-accused.

The two Defendants got out of the car and the co-accused punched the deceased in the head knocking his hat off and then the Defendant kicked him in the head causing him to collapse into the road and fall onto a stationary car.

The Defendant and his co-accused fled the scene having got back into the car.

The deceased was unconscious and tragically, later died in hospital.

The Defendant handed himself into the police but during interview he alleged that the deceased had walked in front of the car causing him to have to brake suddenly. He denied that he had used racist language and asserted that he had kicked the deceased in the shoulder believing that he was about to draw a knife.

The Defendant and his co-accused were originally charged with murder and manslaughter, in the alternative. They entered pleas of not guilty and at trial a jury was unable to reach verdicts on either count.

Just before the retrial, the Crown indicated that they would accept guilty pleas to manslaughter, but on the basis only that both the Defendant and his co-accused would plead.

The Defendant thus pleaded guilty on day appointed for the retrial.

The sentencing judge categorised the case as one of ‘medium culpability’ within the Sentencing Council Guideline for manslaughter and recognised the Defendant’s personal difficulties, which were that he was suffering from post-traumatic stress disorder, he appeared to be suffering from depression and was diagnosed with autism which caused him to react differently to others when confronted with difficult situations and that he had therefore, a propensity to overreact.

The sentencing judge said that he would also reflect in the sentence the fact the case was racially aggravated.

He further discounted the Defendant’s sentence by 25% for his guilty plea, recognising the Defendant’s unwillingness to plead guilty at the first trial as a ‘legitimate tactic’.

The Defendant was therefore sentenced to four years’ imprisonment.

The Attorney General sought permission to refer the sentence to the full court under section 36 of the Criminal Justice Act 1988 as one which was ‘unduly lenient’.

On behalf of the AG it was submitted that the sentence should have been categorised as ‘high’ rather than ‘medium’ culpability because: –

  • the deceased was distracted having been knocked off-balance by being punched in the head and having to retrieve his hat and the defendant should have realised there was a high risk he would cause grievous bodily harm to the victim which should have been obvious;
  • If the case was to be classed as medium culpability, there should have been an uplift from a starting point of six years’ custody;
  • Because the defendant pleaded guilty at the start of the second trial only a 10% credit for plea was justified.

Curiously perhaps, the reference seems to have failed to address what might be considered to be an inadequate uplift by the sentencing judge to reflect the racist motivation behind the attack. In other words, the case truly was a ‘hate crime’.

The Court of Appeal granted to the AG permission to appeal.

The Court noted that the AG had not specifically raised the important racial aspect of the case in the reference.

With regard to the racist element of the current offence, the Court observed that ‘a man had died because of the colour of his skin’ as he and his wife went about their lawful business.

The sentencing judge had said that he treated the racial aspect as an aggravating factor and added a year onto the length of the sentence. That was insufficient and the Court of Appeal indicated that an uplift of 2½ years was warranted.

In moving to consider credit for plea, the Court said that the sentencing judge had been best placed to determine the level of credit to be given for plea on the facts of the present case and did not interfere.

The starting point of six years after trial in the manslaughter guideline was increased to 8½ years to reflect the racist element.

That was reduced to seven years to reflect the significant mitigation available to the defendant before taking off 25% for his plea, leaving an overall sentence of five years three months’ imprisonment.

The Court went on to make the important observation which prosecutors should take on board. In some circumstances, they said, a sentence of four years might not be considered to be unduly lenient when compared with a sentence of 5¼ years but in the present case it was so in order to demonstrate the importance of marking the racist element.

This case should serve as a salutary reminder to prosecutors, in cases involving a ‘hate’ element to consider with great care, whether the overall sentence adequately marks that seriously aggravating feature and to consider whether their case is one where an application under section 36 is merited.

Stephen Wood QC
Head of Chambers
31st August 2021

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