COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM LUTON CROWN COURT
HIS HONOUR JUDGE BREEN
Strand, London, WC2A 2LL
B e f o r e :
THE HONOURABLE MR JUSTICE BEATSON
THE HONOURABLE MR JUSTICE WAKERLEY
ATTORNEY GENERAL'S REFERENCE NO 4 OF 2004 (D) UNDER SECTION 36 OF THE CRIMINAL JUSTICE ACT 1972
Smith Bernal Wordwave Limited, 190 Fleet Street
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Miss Nadia Chbat for offender D
Lord Lester of Herne Hill QC & Mr Nicholas De Marco on behalf of the Commission for Racial Equality
Crown Copyright ©
Lord Justice Auld :
"the use of the word "immigrant" to a victim of an offence is capable of demonstrating hostility, based upon the victim's membership (or perceived membership) of a 'racial group' as defined by Section 28(4) of the Crime and Disorder Act 1998 – namely "a group of persons defined by reference to race, colour, nationality (including citizenship) or ethnic or national origins."
The statutory provisions
"(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 or religious group; or
(b) the offence is motivated (wholly or partly) by hostility towards members of a racial or religious group based on their membership of that group.
(2) In sub-section (1)(a) above –
"membership" in relation to a racial or religious 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 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.
(5) In this section "religious group" means a group of persons defined by reference to religious belief or lack of religious belief.
The prosecution case and evidence
The Trial Proceedings
"… for the reasons which have been adverted to in argument, it does not seem to me that the fact that someone is non-British and an immigrant to this country, can possibly be said to make such a person a member of a racial group …"
The submissions on the Reference
1) statements of the Secretary of State for the Home Department in the passage of the Race Relations Act 1965, which created the first statutory offence of incitement to racial hatred, on the width to be given to the four criteria "colour, race, ethnic or national origins";
2) the clarifying addition of "nationality" to the criteria by the Race Relations Act 1976 and statements made by the Secretary of State in its passage, as a bill, through the House, prompted by the reasoning of the House of Lords in Ealing London Borough Council v Race Relations Board  Act 342, in which their Lordships, by a majority, had held that discrimination by the Board against all non-British nationals in allocating housing, though discrimination on the basis of nationality, was not caught by any of the four criteria in the 1965 Act;
3) the following statement of the Home Secretary at the report stage of the 1998 Act:
"Those who commit many racially aggravated offences and who go in for acts of racial hatred are typically so ignorant that they see the colour of someone's skin, or their general appearance, and dismiss them as for example "Pakis" or other such horrible insults without knowing from which racial or religious group they come.
We are determined that no perpetrator of racist attacks should escape conviction and punishment because of the perpetrator's ignorance about the victim's racial group. Our amendments in this group will put the issue beyond doubt.
Our amendments make it clear that whatever racial group the perpetrator believes the victim to be from, an offence will be racially aggravated if racial hostility or motivation is proved … The Bill does not protect some groups and not others; it protects everyone from racist crimes."
4) a number of judicial authorities, including BBC Scotland v Souster (Ex Div)  SLT 265, R v White (Anthony)  EWCA Crim 216  1 WLR 1352 and DPP v McFarlane  EWHC 485 (Admin), to which, along with the decision of the Divisional Court in DPP v M(A Minor)  EWHC 1453 (Admin), we shall return.
The authorities and the Court's Opinion
"17. The word ["African"] bears different meanings in different contexts and in different countries. What does emerge from the speeches in Mandla's case … and in the Ealing case … is that the court is not tied to the precise definition in any dictionary. The statutory language is intended to be given a broad, non-technical, meaning. Moreover, words are to be construed as generally used in this jurisdiction. 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."
"30 … 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 … that the Director can satisfy the definition in that provision in a non-inclusive, as well as an 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.
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)."