Does calling a person a bloody foreigner and saying go back to your own country make an offence a racially aggravated offence?
The victims were three young Spanish women who became involved in an altercation with the defendant – who was incapacitated by arthritis and riding a mobility scooter along the pavement on his way home from a public house – as he tried to get past them on the pavement.
The House of Lords gave a final answer to this question in the case of R. v. Rogers (CLW/07/09/14).
The victims were three young Spanish women who became involved in an altercation with the defendant – who was incapacitated by arthritis and riding a mobility scooter along the pavement on his way home from a public house – as he tried to get past them on the pavement.
He then pursued them in an aggressive manner into a shop and used threatening, abusive or insulting words or behaviour, intending them to fear immediate unlawful violence or to provoke it. As he did so, he called them bloody foreigners and told them to go back to your own country.
It was not disputed that he had committed an offence contrary to section 4 of the Public Order Act 1986.
The only question was whether his use of words had transformed that offence into its racially aggravated form, contrary to section 31(1)(1)(a) of the Crime and Disorder Act 1998. In particular, the question for the court was the meaning of racial group in section 28(4) of the Act, which provides:
In this section racial group means a group of persons defined by reference to race, colour, nationality (including citizenship), or ethnic or national origins.
Holding that the defendant had properly been charged with the racially aggravated form of the offence, the House of Lords said that foreigners were a racial group within the meaning of section 28(4).
The racially aggravated form of the offence was aimed at racism and xenophobia, and the harmful effects caused by such conduct. If the term racial group was defined in a way that excluded foreigners, the law would be brought into disrepute.
CLW Comment
It is important to note that the defendant in this case would have been guilty of the public order offence whether or not he had used the words bloody foreigners.
It is arguable, however, that there is a danger arising from the courts decision that the elements of the underlying offence and the matter of aggravation will be elided.
This will be particularly so in relation to public order offences. In other words, there is a risk that a person who does nothing more than call another person a bloody foreigner (without any other conduct going with it) will be said to have used abusive, insulting or threatening words so that he is guilty of a public order offence.
And it will also be said that the same words showed that the offence was racially aggravated. If the law is enforced in this way, then the criminal law will have been recruited in a drive to enforce a model code of behaviour. Spectators at The Oval and Twickenham, as well as those at Old Trafford and Stamford Bridge, beware!