Rogers, R v

A group comprising persons who are foreign may be a racial group for the purposes of section 28(4) of the Crime and Disorder Act 1998. Hostility demonstrated towards a victim because the victim is foreign may therefore satisfy section 28(1)(a).

The statutory inquiry is fact-sensitive. It requires both a perceived membership of a statutory racial group and words or conduct demonstrating hostility based on that membership. Prosecutors should nevertheless use the racial-aggravation provisions only where the circumstances genuinely indicate racist hostility.

The appellant was convicted at Winchester Crown Court of 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. During an altercation with three Spanish women, he called them foreigners and told them to return to their own country.

At trial, he submitted that there was no case to answer because foreigners could not constitute a racial group under section 28(4). The judge rejected that submission in reliance on DPP v M [2004] EWHC 1453. On appeal, the central issue was whether the words were legally capable of demonstrating hostility based on membership of a racial group.

1. Appeal dismissed. The trial judge correctly left the case to the jury. The binding authority of Attorney General's Reference No 4 of 2004 [2005] EWCA Crim 889 was sufficient to require that result.

2. Section 28(1)(a) of the Crime and Disorder Act 1998 involves two linked questions. The offender must perceive the victim as belonging to a racial group within section 28(4), and the words or conduct must demonstrate hostility based on that membership. The words used need not themselves expressly identify the relevant group.

3. The definition of racial group in section 28(4) is wide. It encompasses persons who are foreign, defined by reference to nationality or national origins. Accordingly, hostility directed at persons because they are foreign is capable of being racial hostility for section 28(1)(a). On these facts, the appellant's words provided a proper basis for the jury to find such hostility.

4. The court approved the reasoning in DPP v M [2004] EWHC 1453, although that Divisional Court decision was not binding. It followed Attorney General's Reference No 4 of 2004 [2005] EWCA Crim 889, which resolved the issue adversely to the appellant.

5. The observation in R v White [2001] EWCA Crim 216 that a racial group required particular racial characteristics was obiter insofar as it concerned South Americans. It conflicted with the later reasoning and should not be followed to that extent.

6. The breadth of section 28(4) does not make every instance of vulgar abuse containing a racial epithet a racially aggravated offence. Prosecutors should charge under the provision only where the facts genuinely suggest that racism aggravated the offence.

• Court of Appeal (Criminal Division): The appellant's appeal against conviction was dismissed: [2005] EWCA Crim 2863.

• Winchester Crown Court: On 23 February 2005, the appellant was convicted under section 31(1)(a) of the Crime and Disorder Act 1998 and received an 80-hour community punishment order.