As has played out in the public eye Paul Gascoigne, the former England footballer, has had a long battle with alcohol which has normally been the cause of the tabloid interest in him. He has recently hit the news for other reasons.
On 4th June 2016 it was announced that he was to be (or possibly had been) charged over a ‘racial joke’ that he made during an ‘Evening with Gazza‘ at Wolverhampton Civic Centre on 30th November 2015.
What was the joke?
For perhaps understandable reasons, the joke has not been printed in full.
According to the Metro, Mr Gascoigne said something along the lines of :
“that he couldn’t tell if a black security guard in a darkened corner of the stage was ‘smiling or not“.
What was the charge?
There’s been no official announcement from the CPS, so we have to go on what the news reports say (not always accurate).
So we think it must be racially aggravated s5. This is the ‘normal’ s5 offence – namely, that a person is guilty of an offence if he—
“uses threatening or abusive words… within the hearing or sight of a person likely to be caused harassment, alarm or distress thereby“.
But one that is ‘racially aggravated’ for the purposes of s31 Crime and Disorder Act 1998.
This states that :
An offence is racially aggravated if … —
(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.
(2) In subsection (1)(a) above—
“membership”, in relation to a racial … group includes association with members of that group;
“presumed” means presumed by the offender.
(3)It is immaterial for the purposes of paragraph (a) or (b) of subsection (1) above whether or not the offender’s hostility is also based, to any extent, on any other factor not mentioned in that paragraph.
In addition, it will have to be proved that Mr Gascoigne intended that “his words… be threatening or abusive … or is aware that it may be threatening or abusive“.
It is unlikely to be suggested that Mr Gascoigne was motivated by any racial hostility, so the case will probably be put on the basis that the words used demonstrated hostility to the complainant.
This is a complicated are of the law, but there is a good summary of the issues that the Magistrates’ Court will have to wrestle with in the case of Jones v Bedford Magistrates’ Court  EWHC 523 (Admin).
Further, we assume that the words would not have been taken as being ‘threatening’.
So, assuming that there is no dispute that Mr Gascogine said the words, and there is no dispute as to exactly what was said, the prosecution will have to prove –
- that the joke was abusive, and
- Mr Gascoigne knew the joke was, or was aware that it may be, abusive, and
- the joke was unreasonable in the circumstances, and
- there were people in the room who were likely to be caused ‘harassment, alarm or distress’ by the joke, and
- Mr Gascoigne had ‘reason to believe’ that this was the case, and
- the joke demonstrated hostility towards the complainant based on his ethnicity
As can be seen, this is quite a high hurdle.
I thought he wasn’t going to be prosecuted?
It seems originally that he was not going to be prosecuted, and Mr Gascoigne was notified of this last month.
However, somebody (presumably the complainant) ‘appealed’ that decision – using the Victims’ Right to Review procedure. This allows somebody effected by the decision to request the CPS to look at it again.
Again, we don’t have the full details of this, but it appears that this is what happened in this case.
Isn’t this a bit late?
Given that the alleged offence was on 30th November, then unless it has already been started (and was started last week) it is ‘out of time’ and cannot proceed.
Although the CPS do sometimes miss this, it is unlikely that that could have happened in such a high profile case, so we assume that this all happened at the end of May and is just getting in to the papers now.
Is this a sensible prosecution
Although it is in front of the magistrates, and not a jury, we won’t be commenting too much at this stage.
*As you can see from the comments, then’s one edit from ‘claimant’ to ‘complainant’.