Racially or religiously aggravated harassment
Date Produced: 24 June 2011
Title: Offences against the person
Offence: Racially or religiously aggravated harassment
Legislation: Crime and Disorder Act 1998, section 32
Mode of Trial: Either way
Statutory Limitations & Maximum Penalty: Section 32(1)(b) 7 years. Section 32(1)(a) 2 years.
Relevant Sentencing Guidelines
There is neither definitive guideline nor guideline case for racially or religiously aggravated harassment.
The SGC definitive guideline 'Assault and Other Offences Against the Person' establishes principles that can assist in racially or religiously aggravated harassment cases.
A court should firstly determine the appropriate sentence without taking account of the aggravated element and then make an addition to the sentence.
If proved, the following factors can be taken to indicate a high level of aggravation whether based on the victim's race, religion, disability or sexual orientation:
The offender's intention:
- the aggravated element was a planned part of the offence;
- the offence was part of a pattern of offending by the offender;
- the incident was deliberately set up to be offensive or humiliating to the victim or to the group of which the victim is a member.
The impact on the victim or others:
- the nature, timing or location of the offence was calculated to maximise the harm or distress it caused;
- the offence is shown to have caused fear and distress throughout a local community.
At the lower end of the scale, the aggravated element might be less serious if:
- it was limited in scope or duration;
- the motivation for the offence was not hostility based on the victim's race, religion, disability or sexual orientation, and the element of such hostility or abuse was minor or incidental.
Relevant Sentencing Case Law
R v Liddle and Hayes  1 Cr.App.R.(S.) 131
This case is no longer a guideline case. Perhaps its main significance now is the fact that in R v McDermott and Melaney  1 Cr.App.R.(S.) 110 the Court of Appeal highlighted three factors indentified in the judgement in R v Liddle and Hayes. "First, the seriousness of the conduct which can range from actual violence to threatening letters. Secondly, whether the conduct was solitary or persistent. Thirdly, its effect upon the victim."
R v Shand  1 Cr.App.R.(S.) 69
Shouted racial abuse at neighbour on a number of occasions. Victim's partner Afro-Caribbean and her three children of mixed race. Guilty plea. 15 months upheld.
R. v Gaunt  2 Cr.App.R.(S.) 37
Appellant, who was the manager of a business, pleaded guilty on the basis that he was aware of harassment over several years but did nothing to stop it happening. Sentence reduced to 6 months imprisonment.
R v McDermott and Melaney  1 Cr.App.R.(S.) 110
Harassment contrary to section 32(1)(b). Appellants and victim, a man of Pakistani origin, worked in a road maintenance gang. Truck driven with him in the back, causing him to be thrown about and struck with loose materials. On a later occasion, trousers removed at the side of a motorway exposing him to passing traffic. On a further occasion, tied to railings, stripped of clothes, hosed with water, prodded in genitals, photographed, slapped, discovered upon return to his locker that his clothes had been immersed in dirty water, and he could not find his car keys or phone. Racist abuse. Other incidents during the period of 10 months. Traumatised, did not return to work. Three years imprisonment upheld.
A perusal of reported cases establishes that the Court of Appeal regularly endorses sentences of 6 months and over for offences contrary to section 31 or section 32 of the act.
Decisions in Protection from Harassment Act 1997 section 4 cases may also be relevant. See the 'Harassment' template.
Recent Decisions reported in Current Sentencing Practice at B3-6.3B concentrate more upon offences contrary to section 31 of the act (covering the aggravated versions of sections 4, 4A and 5 of the Public Order Act), but are nonetheless may be of assistance.
Restraining orders on conviction
- Protection from Harassment Act 1997 section 5
- Archbold at 19-277f
Restraining orders on acquittal
- Protection from Harassment Act 1997 section 5A
- Archbold at 19-277fa
- R v Major [2011[1 Cr.App.R. 74