The House of Lords has unanimously rejected an appeal today where an accused argued that their conduct had not been a racially aggravated instance of a public order crime. The facts are simple,
“The victims in this particular case were three young Spanish women who were walking back to the home of one of them after celebrating the birthday of another in a local restaurant. The appellant, who is incapacitated by arthritis, was riding a mobility scooter along the pavement on his way home from a public house. An altercation took place as he tried to get past them on the pavement. He then pursued them in an aggressive manner into a local kebab house where they had taken refuge. The jury must have been sure that he had used threatening, abusive or insulting words or behaviour intending them to fear immediate unlawful violence or to provoke it. “ (from para 7 of Baroness Hale’s speech)
He shouted “bloody foreigners” and “go back to your own country”. Under the English criminal law certain offences can be aggravated if they have a racial element. This aggravation can have an impact on sentencing. The question for the court was whether his use of these words racially aggravated the original offence.
Occasionally in the criminal courts (especially where legislation is involved) people play with words and adopt spurious literal arguments to suggest their behaviour is not criminal. My favourite instances involve road traffic cases.
Baroness Hale demonstrates the problematic nature of the argument at para 10, “it is argued for the appellant that the Act requires that the group be defined by what it is rather than by what it is not. Hence it is argued that Spaniards are covered but foreigners, that is the non-British, are not. The same argument would presumably be made about a person who showed hostility towards all non-whites, irrespective of the particular racial group to which they belonged. This cannot be right as a matter of language. Whether the group is defined exclusively by reference to what its members are not or inclusively by reference to what they are, the criterion by which the group is defined – nationality or colour – is the same.”
The court therefore rejects the approach and applies a general definition.
Expect criminal proceedings against The Daily Express, The Sun, The Daily Mail, The Daily Telegraph, Taki and The Spectator to begin any day now.