Legal news – racially aggravated crime

 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.

For example under Vehicles (Excise) Act 1971, s 8 (1) “If any person … keeps on a public road any mechanically propelled vehicle for which a licence is not in force … he shall be liable to …” [a penalty].  In one case Holliday v Henry (1974) RTR 101 the car was unlicensed, without a gearbox, is balanced on four roller skatesand it was argued it was not “on” a public road (but on roller skates).   Or in Chief Constable of Staffordshire v Lees (1981) RTR 506 the Road Traffic Act 1972, Section 8 was considered which provided “(2) “If an accident occurs owing to the presence of a motor vehicle on a road … a constable in uniform may require any person who he has reasonable cause to believe was driving … the vehicle at the time of the accident to provide a specimen for a breath test” and (3) “A person who, without reasonable excuse, fails to provide a specimen of breath for a breath test under subsection … (2) above shall be guilty of an offence”.  Lees drove a car deliberately through a gate and argued that as it was deliberate it wasn’t an accident and he didn’t need to give a breath test.

The argument in the case today was on similar lines.   the argument was “It is accepted on his behalf that had he called them “bloody Spaniards” or any other pejorative word associated with natives of the Iberian peninsular, he would have been guilty. But it is 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 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.

About loveandgarbage

I watch the telly and read when not doing law stuff and plugging my decade and a half old unwatched Edinburgh fringe show.
This entry was posted in law, legislation, literalism, Uncategorized. Bookmark the permalink.

1 Response to Legal news – racially aggravated crime

  1. Anonymous says:

    For inventive defences, you are no doubt aware of the case of the chap who called Celtic’s Craig Bellamy ‘a Welsh bastard’ (it’s reported in the University’s Scots Law News as item 497 on this page) –
    My brother played a part in this case, as he defended the accused – he was able to have the arresting policeman agree that he would not have arrested anyone for calling John Hartson ‘a fat bastard’ (the ‘fat’ part being both potentially hurtful AND a matter of opinion, but nevertheless not criminal) – nor would he have arrested anyone for calling Neil Lennon ‘a ginger bastard’. The inevitable conclusion is that calling someone ‘a bastard'(whether they are or are not) at a football match in Glasgow is not criminal, but if you call a Welsh person Welsh, which Bellamy undoubtedly is, then you bring a criminal conviction upon yourself. I cannot imagine any situation in which I’d be offended by someone calling me ‘Scottish’, though I might conceivably object to being called a bastard. Bellamy wasn’t offended because he didn’t hear it, he being 60 yards away amidst high decibel noise.
    So, if you call a Welsh person Welsh outwith his hearing, but within the hearing of a Scottish policeman who thinks it’s insulting to call a Welsh person Welsh, then in Scotland, you commit a crime.
    Especially when the Sheriff is a well-known Celtic supporter.

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