Neutral Citation Number: [2005] EWCA Crim 2863
Case No: 2005/01420/D4
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM WINCHESTER CROWN COURT
HHJ BONEY QC
Indictment No. T20040296
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 10 November 2005
Before :

THE LORD CHIEF JUSTICE OF ENGLAND AND WALES
MRS JUSTICE RAFFERTY
and
MR JUSTICE MACKAY
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Between :

	R	Respondent	
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	Rogers	Appellant	

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Mr R Wilcox (instructed by the Crown Prosecution Service) for the Respondent
Mr M Florida-James (instructed by Churchers, Solicitors for the Appellant

Hearing dates : 26 October 2005
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Judgment
Lord Phillips :

1.	On 23 February 2005 at the Crown Court at Winchester the appellant was convicted of using racially aggravated abusive or insulting words or behaviour with the intent to cause fear or provoke violence, contrary to section 31 (1)(a) of the Crime and Disorder Act 1998. He was sentenced to a community punishment order for 80 hours. Against that conviction he now appeals with the permission of the full court. The appeal raises a point of law on the construction of section 31(1)(a).
2.	The jury were not required to return a verdict on an alternative count of using abusive words and behaviour with the intent to cause fear or provoke violence contrary to section 4 of the Public Order Act 1986. 
3.	The result of this appeal cannot affect the appellant’s sentence, for he was given an identical sentence, to run concurrently, in relation to two other counts that arose out of the same incident.
The facts
4.	For the purpose of this appeal the facts can be very shortly stated. The appellant, a man aged 52, is incapacitated as a result of arthritis. On 23 February 2005 he was on his way home along the pavement on a motorised ‘mobility scooter’. He had been drinking. He encountered three young Spanish women. An altercation took place in the course of which he abused the three women by calling them “bloody foreigners” and telling them to “go back to your own country”. He then pursued them to a kebab house in an aggressive manner.
The issue
5.	The following are the relevant provisions of the Crime and Disorder Act 1998: 
“ 28. - (1) An offence is racially aggravated for the purposes of sections 29 to 32 below if-
(a) at the time of committing the offence, or immediately before or after doing so, the offender demonstrates towards the victim of the offence hostility based on the victim's membership (or presumed membership) of a racial group; or
(b) the offence is motivated (wholly or partly) by hostility towards members of a racial group based on their membership of that group.
 (2) In subsection (1)(a) above-
"membership", in relation to a racial group, includes association with members of that group;
"presumed" means presumed by the offender.
(3) It is immaterial for the purposes of paragraph (a) or (b) of subsection (1) above whether or not the offender's hostility is also based, to any extent, on- 
(a) the fact or presumption that any person or group of persons belongs to any religious group; or
(b) any other factor not mentioned in that paragraph.
(4) In this section "racial group" means a group of persons defined by reference to race, colour, nationality (including citizenship) or ethnic or national origins.”
“31. - (1) A person is guilty of an offence under this section if he commits-
(a) an offence under section 4 of the Public Order Act 1986 (fear or provocation of violence);
(b) an offence under section 4A of that Act (intentional harassment, alarm or distress); or
(c) an offence under section 5 of that Act (harassment, alarm or distress),
which is racially aggravated for the purposes of this section.”
6.	The prosecution’s case was that by calling the Spanish women “bloody foreigners” and telling them to “go back to your own country” the appellant demonstrated towards the women hostility based on their membership of a racial group. At the end of the prosecution evidence counsel for the appellant submitted that there was no case to answer under section 28 in that the words used by the appellant were not in law capable of demonstrating hostility based on membership of a racial group, because foreigners did not constitute a racial group as defined by section 28(4). The judge rejected the submission of no case to answer, holding that the issue raised had been resolved in favour of the prosecution by the decision of the Divisional Court in DPP v M [2004] EWHC 1453. We shall turn without more ado to examine that decision.
7.	The defendant in that case had been involved in a violent altercation with a Turkish chef in a kebab house. In the course of argument he used the phrase ‘bloody foreigners’. He was charged with racially aggravated criminal damage under the 1998 Act. The Magistrates held that the words ‘bloody foreigners’ were not capable of being construed as expressing hostility based on the victim’s membership (or presumed membership) of a racial group. In a case stated they posed the question of whether this was correct. 
8.	The Divisional Court, consisting of Auld LJ and Richards J held that they were not. Auld LJ gave the only judgment, with which Richards J agreed. Auld LJ concluded, in paragraph 37, that:
“as a matter of construction in the context of the case the word “foreigners” was capable of describing a “racial group” defined by reference to nationality and/or national origins within the meaning of section 28(4) of the 1998 Act.”
9.	The essence of Auld LJ’s reasoning appears in the following passages of his judgment:
“30. In my view, looking at the operation of section 28, as we must in the context of racial hostility directed by someone in this country to someone whose, or whose family's, origin is not in this country, it is inescapable that the word "foreigner" may, depending on the context, qualify as demonstration within section 28(1)(a) of a "group of persons defined by reference to race ... or national origins" within the definition in section 28(4), a minority, albeit now a substantial minority, in national terms in the population of this country. 
31. It is perhaps of significance that section 28(4) reads "by reference to race", et cetera, not "by their race", or even "by reference to their race". I agree with Mr Parker that the Director can satisfy the definition in that provision in a non-inclusive, as well as inclusive, sense according to the circumstances of the words used, or the act done, and the context of the case. In addition, as White and McFarlane show, the size of the group is, in any event, immaterial to the definition since hostility can be expressed by the use of pejorative words, such as that here or those in White and McFarlane, towards groups large or small based on colour or origin, and can be equally hurtful regardless of the number of people with whom the victim shares the non-inclusiveness of being a foreigner. 
32. The non-inclusion in "home" racial groups as a species of "racial group" in the Queen Mary College case - whilst the product there of express statutory provision to that effect, absent here - in my view, supports the logic of giving a broad interpretation to the expression "racial group" in this context. 
33. To that extent the Magistrates were correct, as I read the opening words of their opinion, to accept in principle, or as they put it "as a matter of semantics", that the words "bloody foreigners" could, depending on the context, describe a person within a "racial group" as defined in section 28(4).”

10.	The reasoning of the Divisional Court in DPP v M was relied upon by this court, again presided over by Auld LJ, in The Attorney General’s Reference No 4 of 2004 under section 36 of the Criminal Justice Act 1972 [2005] EWCA Crim 889. We shall refer to this case as Reference No 4. The case involved an assault by the defendant on an Indian doctor, in circumstances where she had referred to him as “an immigrant doctor”. The issue was whether this phrase was capable in law of demonstrating hostility based upon the doctor’s membership of a ‘racial group’ as defined by section 28 of the 1998 Act. The trial judge had directed the jury that it was not. The Court of Appeal held that it was.
11.	We can, we think, summarise the reasoning of the trial judge as follows: Referring to a person as an immigrant infers no more than that the person belongs to that very large mass of people who are not British in origin. That mass of people cannot properly be described as a ‘racial group’. It follows that referring to a person as an immigrant’ cannot indicate hostility based on that person’s membership of a racial group.
12.	Counsel for the Attorney General’s submissions were summarised by Auld LJ as follows: 
“12. Mr Jafferjee submitted  that, in the light of these pointers and authorities, the Attorney General’s broad approach to construction of the term “racial group” in the 1998 Act supports the proposition that the use of the term “immigrant” is, not only caught by the term “national origins”, but also by the word “nationality”. He added that in the case of Dr. Newal – who appears to have had a pronounced Indian accent when speaking English and whose physical appearance in terms of colour was obviously not white – it would have been open to a jury to conclude as a matter of evidence that the reference to him as an “immigrant doctor” would have offended each of the five statutory criteria.
13. Mr Jafferjee usefully concluded his submissions by commenting that if the Judge’s ruling were to be upheld, it would have the absurd result that the law would permit a person to discriminate another even though demonstrating hostility towards that other based on the fact, or presumed fact, that he was an immigrant, but not if based on his membership or presumed membership of a group defined more precisely by reference to one or more of the statutory criteria.”
13.	These submissions illustrate the fact that two separate issues can arise in relation to section 28 of the 1998 Act. For an offence to be aggravated under that section the defendant must first form the view that the victim is a member of a racial group, within the definition in section 28(4). He must then say something which demonstrates hostility towards the victim based on membership of that group.  The words used may or may not expressly identify the racial group to which the defendant believes the victim belongs.
14.	In Reference No 4 it was open to the jury to conclude that the defendant had identified her victim as falling into the following racial groups from his appearance and from his accent. Indian, brown skinned. Each of those was unquestionably a racial group within the definition in section 28(4). The word that she used to display hostility was ‘immigrant’. Whether or not ‘immigrants’ constituted a further racial group within the definition in section 28(4), it was open to the jury to find that by using the word immigrant, the defendant was demonstrating hostility to the victim because he was Indian and brown skinned.
15.	As we understand it, this was one of the points being made by Mr Jafferjee. He also made, however, a quite different point. In his submission immigrants constituted a racial group within the definition in section 28(4). If the words used by the defendant demonstrated hostility to the victim simply and solely because he was an immigrant, that would suffice to render the offence an aggravated offence.
16.	Auld LJ focussed precisely on the second point when he referred to authorities bearing directly on:
“20. … the central question posed by this case, namely whether the use of a work like “immigrant” as excluding all but “British subjects resident in this country” renders all those excluded, for the purpose of section 28 of the 1998 Act a “racial group”. ”
17.	Auld LJ first cited R v White [2001] EWCA Crim 216, a case to which we shall revert. He then cited extensively from paragraphs 30, 31 and 33 of his judgment in DPP v M.  He then set out the conclusions of the court as follows: 
“24. We adopt and apply that reasoning to the broad non-inclusive term “immigrant doctor” in the context in which it gave rise to this reference. If anything, the non-inclusive term “foreigner” denotes membership of an even broader racial group than does the term “immigrant” as applied to an alleged victim in this country of a racially aggravated offence. As Lord Lester observed, the Judge erred in determining the matter simply as a matter of construction of the word “immigrant” as “non-British”, divorced of the factual context in which it was used. Whether Mrs D’s use of the term “immigrant doctor” towards Dr Newal was only an allegation of non-Britishness or was part of a demonstration by her of hostility to him within the terms of section 28(1)(a) of the 1998 Act because she perceived his non-Britishness to derive from his race and/or colour and/or his nationality and/or his ethnic or national origins involved a question of fact for determination by the jury on the facts of the case. In our view, the Judge erred in ruling as he did that someone who is an immigrant to this country and, therefore, non-British cannot as such be a member of a racial group within section 28(4) of the 1998 Act. In our opinion, he should have left the matter with the jury as one capable of having been racially aggravated offence.”
18.	We have found this passage a little confusing. On one reading it suggests that the critical question for the jury was whether the use of the word ‘immigrant’ demonstrated hostility not simply to the large group of those who are not British, but to one or more of the racial groups to which the victim belonged, defined by his race, colour, nationality and ethnic origin. On balance, however, when Reference No 4 is read as a whole, we believe that this court held that ‘immigrants’ constituted a racial group within the definition in section 28(4). The same was true of foreigners.
19.	This point is of critical importance on the facts of the present case. Those facts suggest that the only relevant characteristic that the appellant identified in relation to the victims of his assault was that they were foreign. There is no evidence that there was anything in their appearance that indicated a relevant racial characteristic. The defendant simply heard them speaking a foreign language, or with a foreign accent. If ‘foreigners’ constitute a racial group within the definition in section 28(4), there was plainly a case to go to the jury that he had demonstrated hostility towards his victims because they were foreigners. The judge concluded that he was bound by DPP v M to hold that foreigners constituted a racial group and to let the case go to the jury on that basis. 
20.	We consider that the judge correctly applied DPP v M. That decision does not bind this court, but Refence No 4 does, and for that reason alone this appeal must fail. Had the matter been in doubt, we would have reached the same conclusion as that stated by Auld LJ. Hostility demonstrated to foreigners because they are foreign can be just as objectionable as hostility based on a more limited racial characteristic. All who are black form a racial group, defined by reference to colour, within section 28(4), as do all who are white. This demonstrates the width of the concept of racial group in this context. It is no great extension of the concept to embrace within a single racial group all who are foreign.
21.	 Mark Florida-James, who appeared for the appellant, submitted that both DPP v M and A-G’s Reference no 4 were in conflict with the reasoning of this court in R v White [2001] EWCA Crim 216. The relevant issue in that case was whether calling a woman an “African bitch” was capable in law of demonstrating hostility towards the complainant, who came from Sierra Leone, as being a member of a racial group within the provisions of section 28(1)(a) of the 1998 Act. It was argued for the defence that “African” described disparate peoples that could not properly fall within the description of a racial group. The court rejected this submission. It held at paragraph 17:
“… In our judgment, the word African does describe a “racial group” defined by reference to race. In ordinary speech, the word African denotes a limited group of people regarded as of common stock and regarded as one of the major divisions of humankind having in common distinct physical features. It denotes a person characteristic of the blacks of Africa, to adopt a part of the definition in the dictionary.”
22.	The Court went on to distinguish ‘African’ from ‘South American’, observing at paragraph 19:
“Reference was made to South America in the course of argument and we mention it to make a distinction. Whereas the word African has a racial connotation, the expression South American, in England and Wales, probably does not. The range of physical characteristics in the populations of that continent, and the absence of prominence of any one group, is such that the use of the expression South American does not bring to mind particular racial characteristics. We would not expect there to be a common perception in England and Wales of a South American racial group.”
23.	It is plain that the court considered that a racial group within the definition in section 28(4) had to be distinguished by particular racial characteristics. This passage in the judgment of the court was obiter. We agree with Mr Florida-James that it is in conflict with the reasoning in DPP v M and Reference No 4. To that extent it should not be followed.
24.	 The very width of the meaning of racial group for the purposes of section 28(4) gives rise to a danger that charges of aggravated offences may be brought where vulgar abuse has included racial epithets that did not, when all the relevant circumstances are considered, indicate hostility to the race in question. Section 28 is designed to address racist behaviour and prosecutors should not bring charges based on its provisions unless satisfied that the facts truly suggest that the offence charged was aggravated by racism.
25.	For the reasons that we have given, this appeal is dismissed.