R v O’Leary [2015] EWCA Crim 1306: Case comment

Hate crime is a sensitive area of the criminal law set up in England and wales. As an elevated category of offences, statute reflects the notion that hate crimes ‘hurt more’. Until recently there has been confusion within procedural law where a criminal charge has been raised, such as unlawful wounding, but not the elevated crime of racially aggravated wounding. Should judicial consideration of racially aggravating features be valid during sentencing if they are not manifested on the indictment accordingly? This is a question that has been clarified in the illuminating appeal case of R v O’leary [2015] EWCA Crim 1306.

At first instance, Mr O’Leary was convicted of multiple offences including assault with intent to rob, and unlawful wounding. He targeted two convenience stores consecutively; armed with knives, he threatened the till assistants, Mr Ahmed and Mr Islam respectively, demanding money. During the second incident, which occurred on the same night after the failure to rob Mr Ahmed, Mr O’Leary exclaimed that he ‘wanted to kill a muslim’ – he had previous offences against him for racially threatening behaviour. During sentencing, the trial judge listed a number of aggravating factors including the fact that the attacks were planned and that Mr O’Leary was armed. Contentiously, he also linked psychological harm suffered by the defendants to the racial nature of the assault on Mr Islam. The point of law in this appeal was whether a penalty enhancement of ‘racial nature’ could be applied under the general provisions to sentencing as set out in section 145 of the Criminal Justice Act 2003, namely in cases where racially aggravated offences could have been charged, but were not done so.

As Mr O’Leary hadn’t been accused, nor was he convicted of an offence under S29 of the Crime and Disorder Act 1998, he argued that the effect the consideration of racial aggravation had on the seriousness of his sentence was unlawful for the category of offences on the indictment. Ultimately, the Court of Appeal dismissed the ground as they found that ‘there was clear evidence upon which the trial judge had been entitled to conclude to the criminal standard that the assault was racially aggravated…’. The difficulty with this decision comes from looking to previous cases such as McGillivray where the judge was not entitled to increase the sentence of the defendant as a racially aggravated offence had been charged but failed to be proven – it seems courts may now use the effect of s145 as a tool to subvert a s29 offence for the safer method of finding aggravating factors in summary at sentencing. To do so may be in consideration that it is easier to convince a judge at sentencing of racial aggravation than to raise it to a jury in the form of a more serious category of offences such as in s29.

It is arguable that where the law provides for an offence, such as racially aggravated offences against the person, and prosecution fail to pursue it, defendants should not be sentenced in consideration of a category of offence to which they face no charge. However, as the law stands, O’Leary highlights the Court’s willingness to employ s145 of the Criminal Justice Act 2003 for sentencing purposes where offences have a racial or religious undercurrent to them.

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