R v. Rogers

The House of Lords considered whether words such as "bloody foreigners" and "get back to your own country" could transform an offence under section 4 of the Public Order Act 1986 into its racially aggravated form under section 31(1)(a) of the Crime and Disorder Act 1998. The court held that the statutory definition of "racial group" in section 28(4) of the 1998 Act includes groups defined by nationality (including non-British persons or "foreigners").

The court emphasised that the aggravated offence requires evidence that the offender demonstrated hostility based on membership (or presumed membership) of a racial or religious group (section 28(1)(a)) or was motivated by such hostility (section 28(1)(b)). The correct approach is non-technical and fact-sensitive: hostility may be shown by words, behaviour or other indicators and may be directed to an inclusively or exclusively defined group (for example, "foreigners" as non-British persons).

Accordingly the appeal against conviction was dismissed: whether particular abusive words amount to racial hostility is a question of fact for the tribunal of fact, and the statutory scheme was to be given a broad, non-technical construction so as to capture racism and xenophobia.

This was a criminal appeal from the Court of Appeal (Criminal Division) ([2005] EWCA Crim 2863) to the House of Lords. The appellant had been convicted of using threatening, abusive or insulting words or behaviour with intent to cause fear or provoke violence contrary to section 4 of the Public Order Act 1986 and of the racially aggravated form of that offence contrary to section 31(1)(a) of the Crime and Disorder Act 1998. The offending conduct arose when the appellant, riding a mobility scooter, pursued three young Spanish women into a kebab house and used the words "bloody foreigners" and told them to "go back to your own country".

The certified question was whether those who are not of British origin ("foreigners") constitute a "racial group" within section 28(4) of the 1998 Act so that hostility to them can constitute a racially aggravated offence.

The court framed the issues as (i) whether the basic offence under section 4 had been committed (this was for the jury and the tribunal of fact) and (ii) whether the conduct demonstrated hostility to a racial group as defined by section 28 (or was motivated by such hostility). The court reviewed the statutory definition in section 28(4), which includes groups defined by nationality (including citizenship) and national origins, and noted related subsections (for example section 28(1)(a) and (b) and section 28(2) and (3)).

The reasoning emphasised a broad, non-technical construction of "racial group" to capture both racism and xenophobia. The House of Lords explained that whether abusive words demonstrate hostility to a racial group turns on context and facts. Earlier authorities were considered, some supporting the broad approach and one (DPP v Pal) being less clear. The court concluded that "foreigners" or those not of British origin can constitute a racial group for the purposes of the statute, and that the jury or magistrates must determine whether the evidence shows hostility to such a group.

The appellant's challenge therefore failed and the appeal was dismissed.

Appeal dismissed. The House of Lords held that the statutory definition of "racial group" in section 28(4) of the Crime and Disorder Act 1998 includes persons defined by nationality (including non-British "foreigners"). Whether particular abusive words show hostility to such a group is a question of fact for the tribunal of fact; the statutory scheme should be given a broad, non-technical construction to capture racism and xenophobia.

Appeal to the House of Lords from the Court of Appeal (Criminal Division) decision [2005] EWCA Crim 2863. Prior related authorities considered included Director of Public Prosecutions v M [2004] EWHC 1453 (Admin) and Attorney General's Reference No 4 of 2004 [2005] EWCA Crim 889. The House of Lords answered the certified question and dismissed the appeal ([2007] UKHL 8).