R v Rogers

Factual and Procedural Background

On 23 February 2005, the Appellant was convicted at the Crown Court at Winchester for using racially aggravated abusive or insulting words or behaviour with intent to cause fear or provoke violence, contrary to section 31(1)(a) of the Crime and Disorder Act 1998. The Appellant was sentenced to a community punishment order for 80 hours. The Appellant now appeals with permission of the full court, raising a point of law concerning the construction of section 31(1)(a).

The incident involved the Appellant, a 52-year-old man with arthritis using a motorised mobility scooter, who, after drinking, encountered three young Spanish women. An altercation occurred during which the Appellant called the women "bloody foreigners" and told them to "go back to your own country," then pursued them aggressively to a kebab house. The jury was not required to consider an alternative count under section 4 of the Public Order Act 1986. The sentence on this conviction cannot affect the overall sentence because identical sentences were imposed concurrently for two other counts arising from the same incident.

Legal Issues Presented

1. Whether the words "foreigners" and similar terms can be legally construed as demonstrating hostility based on membership of a "racial group" as defined by section 28(4) of the Crime and Disorder Act 1998.
2. Whether the term "foreigners" constitutes a "racial group" within the meaning of section 28(4) of the Crime and Disorder Act 1998.
3. The correct application and interpretation of section 31(1)(a) of the Crime and Disorder Act 1998 in relation to racially aggravated offences.

Arguments of the Parties

Appellant's Arguments

• The words used by the Appellant were not legally capable of demonstrating hostility based on membership of a racial group because "foreigners" do not constitute a racial group as defined by section 28(4) of the Crime and Disorder Act 1998.
• Both the decisions in DPP v M and the Attorney General’s Reference No 4 of 2004 conflict with the reasoning in R v White, particularly regarding the scope of the term "racial group".

Prosecution's Arguments

• By calling the victims "bloody foreigners" and telling them to "go back to your own country," the Appellant demonstrated hostility based on their membership of a racial group within the meaning of section 28(4).
• The judge correctly rejected the no case to answer submission relying on the Divisional Court's decision in DPP v M, which held that "foreigners" can constitute a racial group defined by nationality or national origins.
• Hostility demonstrated to foreigners because they are foreign can be just as objectionable and fall within the broad definition of racial group under section 28(4).

Table of Precedents Cited

Court's Reasoning and Analysis

The court examined the statutory definition of "racial group" under section 28(4) of the Crime and Disorder Act 1998, which includes groups defined by race, colour, nationality, or ethnic or national origins. The court considered the decisions in DPP v M and the Attorney General's Reference No 4, which held that terms like "foreigners" and "immigrants" can constitute racial groups under this definition.

The court noted the broad and inclusive construction of "racial group" to encompass groups identified by nationality or national origins, not limited to narrowly defined racial characteristics. It acknowledged that hostility demonstrated towards foreigners on the basis of their foreignness can amount to racial hostility under the Act.

The court found the reasoning in R v White, which suggested a narrower interpretation of racial groups, to be in conflict with the broader approach adopted in the more recent authorities and declined to follow it to that extent.

Given the facts that the Appellant identified the victims solely as foreigners, with no evidence of other racial characteristics, the court concluded that the issue of whether "foreigners" constitute a racial group was properly left to the jury in light of the binding precedents.

Therefore, the court held that the judge correctly applied the law in allowing the case to proceed on the basis that "foreigners" can constitute a racial group under section 28(4).

Holding and Implications

The appeal is DISMISSED.

The court upheld the conviction on the basis that hostility shown to "foreigners" can constitute hostility towards a racial group under the Crime and Disorder Act 1998. This decision reaffirms the broad scope of the statutory definition of racial group to include nationality and national origins, thereby encompassing terms such as "foreigners" and "immigrants." No new precedent was created beyond affirming the correct application of existing authorities. The direct effect is that the Appellant's conviction and sentence remain intact.