Imprecise xenophobia still racial abuse
UKHL 8 A man (Rogers) who was found guilty of racially aggravated abusive or insulting words or behaviour with the intent to cause fear or provoke violence has had his conviction upheld.
Mr Rogers, shouted insults at 3 Spanish women which included the term “bloody foreigners”. The case hinged on whether these words constituted the racially aggravated form of using abusive words and behaviour with intent to cause fear or provoke violence, contrary to s31(1)(a) of the Crime and Disorder Act 1998?
Rogers’ appeal centered on the premise that "foreigners" is not a group of people identifiable as a race and therefore were not racially insultable. It was argued that the hostility must be shown towards a particular group, rather than to foreigners as a whole. Mere xenophobia, it is said, does not fall within the ordinary person's perception of hostility to a racial group.
BARONESS HALE: "It is argued for [Rogers] that the [Crime and Disorder] Act requires that the group be defined by what it [i.e. Spaniards] is rather than by what it is not [non-British]". "Hence it is argued that Spaniards are covered but ‘foreigners’, that is the non-British, are not.
Unsurprisingly, this line of argument was given short shrift. The definition of a racial group goes beyond groups defined by their colour, race or ethnic origin; it encompasses nationality. The list of prohibited grounds of discrimination was deliberately expanded in the Race Relations Act 1976 so as to specifically include nationality. Just because the perpetrator of this offence was vague and unspecific as to which racial group he was discriminating against, it does nothing to negate the gravity of his actions. Would it have made any difference to the Spanish women if Rogers had insulted them with the phrase ‘Bloody Spaniards’ instead of ‘Bloody foreigners’? Was the level of discrimination lower because direct reference was not made to their national origin? Of course not. Discrimination, by definition concerns the less-favourable treatment of certain persons compared with others for whatever reason: gender, nationality, ethnic origin, sexual orientation, etc. Using the pejorative term, ‘bloody foreigners’ was just as discriminatory as ‘bloody Spaniards’ i.e. an exact reference to the victims’ nationality. There was no argument, even from counsel for Rogers, that this latter type of insult would not unquestionably constitute the offence in question.
Case law illustrates that decisions of the Divisional Court and Court of Appeal have generally supported this line of reasoning. In DPP v M  EWCA 1453 it was held that "bloody foreigners" was capable of demonstrating hostility to a racial group. Equally, in A-G’s Ref. No 4 of 2004  EWCA Crim 889 the term “non-British” was also capable of constituting a racial group for the purposes of making out an offence. Further, in R v White (Anthony)  EWCA Crim 216, the word “African” was deemed to express hostility to a racial group because of the general interpretation of that word to mean black African.
The context of the abuse is seen as critical in determining whether that abuse can be categorised as racial hostility. During the C of A proceedings for Rogers it was stated: "[t]he 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." Clearly, however, their Lordships were under no doubt that the circumstances and context in this case did indeed constitute racial hostility. Perhaps Baroness Hale sums the case issues up most profoundly: "The mischiefs attacked by the aggravated versions of these offences are racism and xenophobia". "Their essence is the denial of equal respect and dignity to people who are seen as 'other'. This is more deeply hurtful, damaging and disrespectful to the victims than the simple versions of these offences. It is also more damaging to the community as a whole, by denying acceptance to members of certain groups not for their own sake but for the sake of something they can do nothing about. This is just as true if the group is defined exclusively as it is if it is defined inclusively."