Sometimes the news will report that an individual has been charged with a ‘racially aggravated assault’ or some other offence (a prominent example being John Terry), what does that mean?
Is it a separate offence?
There is no specific offence of ‘being racist’. Instead, in relation to certain common public order offences and offence of violence, Parliament, in the Crime and Disorder Act 1998 created racially aggravated versions that are more serious.
Which offences can be ‘racially aggravated’?
The following offences of violence :
- Inflicting Grevious Bodily Harm – (a maximum sentence of 7 years instead of 5 for the non-racially aggravated offence)
- ABH – (again, 7 years instead of 5)
- Common Assault – (2 years instead of 6 months)
The following Public Order offences:
- s4 or s4A Public Order Act (maximum 2 years instead of 6 months)
- s5 Public Order Act (a Level 4 fine)
- Criminal Damage (maximum 14 year sentence instead of 10)
- And Harassment (maximum 7 years instead of 5 for the aggravated offence and 2 years instead of 6 months for the simple offence)
What makes an offence racially aggravated?
There are two separate ways an offence can be racially aggravated:
(a) 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 the victim’s membership (or presumed membership) of a racial group; or
(b) the offence is motivated (wholly or partly) by hostility towards members of a racial group based on their membership of that group.
In some cases it is straightforward and there is a clear racial motive. Other cases can be more complicated. The fact that there were various motives for the offence, only one of which was racial, does not stop if being racially aggravated (see Johnson as an example).
The offences is given a broad meaning – using words such as “bloody foreigners” will make an offence racially aggravated (Rogers  UKHL 8). The two ways above are alternatives, so the fact that there was no racial motivation, and the individual is ‘not racist’, is not a defence if racial words are used.
CPS guidance on racially aggravated offences can be found here.
Do you get a higher sentence?
Yes. The Judge should generally first ask themselves what the sentence should be if the offence was not racially aggravated. Then, an ‘uplift’ should be applied. There is no fixed formula, it all depends on all the circumstances.
What about religiously aggravated offences?
The definition was extended to include ‘religious group’ as well as racial groups in 2001.