R v. Rogers (Appellant) (On Appeal from the Court of Appeal (Criminal Division))

For the purposes of section 28(4) of the Crime and Disorder Act 1998, a racial group may be defined by exclusion as well as inclusion. Those who are not British, or “foreigners”, can therefore constitute a group defined by nationality or national origins.

The statutory scheme adopts a broad, non-technical approach to racism and xenophobia. It does not require hostility towards one precisely identified nationality. Whether words or conduct demonstrate, or an offence is motivated by, hostility towards the relevant group remains a question of fact determined from the whole context.

The appellant was convicted of the racially aggravated form of using threatening, abusive or insulting words or behaviour with intent to cause fear or provoke violence. During an aggressive confrontation with three Spanish women, he called them “bloody foreigners” and told them to return to their own country.

The Court of Appeal (Criminal Division) dismissed his appeal in [2005] EWCA Crim 2863, reported at [2006] 1 WLR 962. The appellant appealed to the House of Lords.

The central issue was whether people who are not of British origin, or foreigners generally, constitute a “racial group” under section 28(4) of the Crime and Disorder Act 1998, so that hostility towards them can aggravate an offence under section 31(1)(a).

1. Appeal dismissed unanimously. Baroness Hale of Richmond delivered the leading opinion. Lord Hoffmann, Lord Hope of Craighead, Lord Walker of Gestingthorpe and Lord Mance agreed with her reasoning. The certified question whether those who are not of British origin constitute a racial group under section 28(4) of the Crime and Disorder Act 1998 was answered affirmatively. The same answer applied to “foreigners”.

2. Per Baroness Hale, section 28 distinguishes two forms of aggravation. Section 28(1)(a) concerns an outward demonstration of hostility at, immediately before or immediately after the basic offence. Section 28(1)(b) concerns the offender's motivation. Both require hostility based on membership of a racial or religious group, but the present case concerned demonstrated hostility.

3. The definition of “racial group” in section 28(4) deliberately extends beyond race, colour and ethnic origin to nationality, including citizenship, and national origins. The history following Ealing London Borough Council v Race Relations Board [1972] AC 342 confirmed the significance of expressly including nationality.

4. A group need not be identified positively or confined to one particular nationality. A group comprising non-British people is still defined by reference to nationality. Defining people by what they are not uses the same statutory criterion as defining them by what they are. A contrary construction would create unjustifiable distinctions between hostility towards one nationality and hostility towards foreigners, or between hostility towards one racial group and hostility towards all non-white people.

5. The wider statutory context supports a broad, non-technical construction. The victim may only be presumed to belong to the group; membership includes association with group members; and the presence of additional causes of hostility is immaterial. This construction addresses racism and xenophobia, whose essence is the denial of equal respect and dignity to people perceived as outsiders.

6. No particular words are required. Hostility may be demonstrated through words, symbols, songs or other conduct. The context must show what group the conduct concerns. Fine verbal distinctions would undermine the legislation, but the mere use of a racial epithet does not automatically prove the required hostility.

7. Whether the evidence as a whole proves demonstrated hostility under section 28(1)(a), or motivation by hostility under section 28(1)(b), is a question of fact for the jury or magistrates. On the jury's findings, the appellant's references to “foreigners” were capable of satisfying the statutory definition.

1. House of Lords: The appeal was dismissed unanimously in [2007] UKHL 8. The House affirmed that non-British people, or foreigners, can constitute a racial group under section 28(4) of the Crime and Disorder Act 1998.
2. Court of Appeal (Criminal Division): The court dismissed the appeal in [2005] EWCA Crim 2863, reported at [2006] 1 WLR 962, while noting the need to distinguish racial hostility from vulgar abuse merely containing racial epithets.
3. Crown Court: A jury convicted the appellant of the racially aggravated public-order offence after finding that his threatening, abusive or insulting words or behaviour demonstrated the required hostility.