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Published: Wed, 07 Mar 2018
A) The ratio decidendi of the case is that using the phrases “bloody foreigners” and “go back to your own country” can be defined as a racially aggravated offence under the Crime and Disorder Act 1998 section 31(1)(a), because it was found that non-British persons collectively could be classed as a single racial group as defined by section 28(4) of the 1998 Act, and hence these phrases did show hostility towards the Spanish victims based on their membership of a racial group.
B) The House of Lords unanimously came to a decision in the case by following the opinion of Baroness Hale, who gave the only speech. She was first satisfied that a basic offence had been committed, but then had to look at whether it would be classed as racially aggravated within the meaning of section 28 of the Crime and Disorder Act 1998. The issue of debate hence was whether the usage of the phrases “bloody foreigners” and “go back to your own country” could demonstrate hostility based on membership of a racial group as defined by section 28(4) of the Act.
Following the decision in the case of Ealing Borough Council v. Race Relations Board the Race Relations Act 1976 was deliberately expanded to include nationality and national origins in the list of prohibited grounds of discrimination. This list of grounds was then adopted into the 1998 Act to define racial groups. This showed Hale that the definition of racial groups was clearly beyond groups being simply defined by their colour, race or ethnic origin as they originally were in the Race Relations Act 1968.
Hale then went on to argue that as a matter of language, in cannot be right that the Act should apply only to inclusive references as to what they, the victims, are e.g. Spaniards – which would be counted as hostility towards a racial group; but not to exclusive references to what they are not e.g. non-British foreigners. She said that having such fine distinctions depending on particular words would “bring the law into disrepute”. Furthermore Hale gave examples of the situations this would give rise to, whereby saying “wogs begin at Calais” would exhibit hostility towards all foreigners, but “bloody wogs” would have racial undertones towards a specific racial group.
It was decided by Hale that a “broad non-technical approach” of the statute should be taken. This broadness was already evident within the statute due to its large scope of applicability. Hale took this approach because she said racism and xenophobia deny equal respect and dignity to people, and it is more hurtful and disrespectful than the simple offences. Furthermore she said that it was more damaging to the community as a whole.
Racially aggravated offences are objectionable for a number of reasons. They deny equal respect and dignity to the victim, and are more hurtful, damaging, and disrespectful than the simple version of the offence. The victim in these cases is subjected to two evils: the simple offence and racism. Racially aggravated offences are also damaging to the community as a whole in that they deny acceptance to members of certain groups not for their own sake but for the sake of something they can do nothing about. It is for these reasons that racially aggravated offences carry higher sentences than the simple version of the offence.
Finally, previous cases helped the Lords and Hale in reaching the decision of the case. The Lords affirmed the Court of Appeal’s decision in Director of Public Prosecutions v. M whereby it was held that “bloody foreigners” could demonstrate hostility towards a racial group; and the case of Attorney General Reference No.4 of 2004 where it was held that “immigrant” and “foreigners” could classify as a racial group.
C) I found the House of Lords’ decision to be convincing on the issue of whether non-British persons collectively classify as a racial group, and hence that the defendant be found guilty for committing a racially aggravated offence. This is because I think a broad and flexible approach needed to be taken towards the Act; exclusive references to what the victims’ are not, are just as damaging to the victims; and because the law cannot waiver on a matter of language technicality.
Firstly as Baroness Hale described, a flexible and broad approach is required when looking at the statute. The statute already demonstrates its broad approach by it not mattering when the hostility is demonstrated; whether the presumption of membership of the victims by the offender was correct; and if the hostility is based on other factors as well as racism and xenophobia. This broad and flexible approach is supported by how parliament amended legislation following the decision of Ealing London Borough Council v. Race Relations Board to include nationality and national origins as racial groups. This shows that parliament intended the statute and its application to be broad and flexible, and this was their intention because it is a matter of policy for governments to decrease racist and xenophobic offences. Hence I am convinced that the Lords decision to take a broad and flexible approach was correct, as this also reflects the will of parliament, and thus the people who are represented there.
I further agree with the Lords’ decision because, as described by Hale, the feeling of being branded as an “other” is deeply hurtful and disrespectful, more so than just the simple offence. Exclusive references to what the victims’ are not i.e. labelling them non-British, are equally as hostile as inclusive references to what they are i.e. Spaniards. Allowing this disrespect would let the victim suffer, and damage community relations as cohesion would be made more difficult. For this reason I further am convinced by the Lords’ decision that exclusive references are also classified as racial groups, so that the offence can be found as racially aggravated.
Finally, I agree with the Lords that it would bring the law into disrepute to waiver on a matter of language technicality. It would be absurd to suggest that an offence may not be classed as racially aggravated, simply because it was not clear by language whether a racial group was being referred to; hence the “flexible, non-technical approach” suggested by Hale would make sense. This would not allow offenders to circumvent the law, and it allows the court to take a broader approach to achieve policy goals. This is demonstrated by Abdul Gofur who uses the example of “paki”; which could refer to just Pakistanis, everyone from South Asia, brown-skinned people, or a combination of both. Taking this broad approach does not allow the offender to argue that “paki” cannot refer to a particular racial group.
In conclusion I find the Lords’ decision to be convincing because I agree that a broad and flexible approach to the statute needs to be taken; furthermore, language technicality cannot be an excuse for allowing damage to be done to members and the community.
Attorney General’s Reference No.4 of 2004  1 WLR 2810
Director of Public Prosecutions v. M  1 WLR 2758
Ealing London Borough Council v. Race Relations Board  AC 342
Regina v. Rogers  2 AC 62
Entertainment Law Review 2007, Case Comment – The meaning of racial group: R v. Rogers, Abdul Gofur
Criminal Law Review 2007, Case Comment – Public order, D.C. Ormerod
Blackstone’s Criminal Practice 2010, Part B Offences, Section B11 Offences Affecting Public Order, Racially or Religiously Aggravated Offences
Stones Justice Manual 2010, Part I Magistrates’ Courts Procedure, Statutes on Procedure, Crime and Disorder Act 1998, Part II Criminal Law
Crime and Disorder Act 1998
Race Relations Act 1976
Race Relations Act 1968
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