The Ratio Decidendi

1) What, In Your Own Words, Is The Ratio Decidendi Of Case? (10%)

The ratio decidendi in this case can be summarised as that in a case concerning racially or religiously aggravated offences, to determine whether the words used come under the definition of a racial group, a broad, flexible construction of the definition of a racial group is required. This is due to the lack of an exhaustive definition, which clearly deliberately includes distinctions based upon ‘nationality(including citizenship) and national origins’. Moreover, the words used need not be an express identification of the group into which the person fits but may also recognise the group that they do not belong in.

2) How Did The House Of Lords Reach Its Decision In The Case? (40%)

The way the House of Lords came to reach their decision is set out in the judgment of Baroness Hale of Richmond and the other judges all agreed with her formulation. Firstly, she stated that the issue in question was whether the words ‘bloody foreigner’ and ‘go back to your own country’ were covered by section 31(1)(a) of the Crime and Disorder Act 1998 so that the offence could now be labelled as racially aggravated. She asserted that it was the job of the court to establish the occurrence of the offence and then consider the motivation for it. Baroness Hale used the amendments made by section 39(1)(3)(B) of the Anti-terrorism, Crime and Security Act 2001 to provide circumstances in which it can be said that a racially aggravated offence has taken place. Section 28(4) of the 1998 Act defined this a racial group as ‘a group of persons defined by reference to race, colour, nationality (including citizenship), or ethnic or national origins. Baroness Hale responded to the claims of the appellant, that the law required his words to refer to a specific group, by saying that since the law clearly deliberately included within the definition ‘nationality (including citizenship) and national origins’ as a reaction to the decision in an earlier case, the outcome of which had allowed discrimination against non-British people, meaning that in this case his reference to ‘foreigners’ was covered by the definition.

In response to a second claim that the law needs a group do be labelled by what they are, and not what they are not, Baroness Hale said that this doesn’t make sense in terms of the language as otherwise it would allow, for example, discrimination against all non-whites.

Moreover Baroness Hale accepted the idea that the statute required a broad, non-technical and flexible interpretation as it is important to deal with the act of racism or xenophobia, for two reasons. Firstly, a non-literal approach to the language is required to prevent absurdities. Moreover, it is needed, therefore, as a matter of policy as she considered that they must take the mischief rule approach, as Parliament’s intention was clear and they must give effect to it. Therefore, she asserted that the language used by offenders may incorporate more than one group, e.g. the term ‘Blacks’ covers many national groups even though it could be directed at one particular group. And as a result of this principle the term ‘bloody foreigners’ can fit the definition given by the Act as it can ,therefore, be directed at a single group.

3) Do You Find The House Of Lords’ Decision To Be Convincing? Give Reasons For Your Answer. (50%)

The decision of the House of Lords that the term ‘bloody foreigners’ is sufficient to be construed as indicating racial hostility appears convincing. Firstly, the definition provided by the Crime and Disorder Act 1998 was evidently not intended to be exhaustive as otherwise Parliament would have listed every known racial group to provide certainty. This being the case they are clearly inviting the courts to use their own interpretation and apply the definition in the context of the case before them. The requirements of the Act that there be either an outward manifestation of the hostility or an offence motivated by hostility based on the membership of a racial group must therefore, be considered in context. In this case it was clear the Mr. Rogers’ offence was an outward manifestation based on his use of the words ‘bloody foreigners’, which effectively said that his main motivation was that they were not British. Clearly, whilst this is a very large racial group it is still a group for purposes of nationality, even though it may not be an ethnic group. Therefore, the House of Lords was right to deem this as a racially aggravated offence.

Moreover, the intentions of Parliament must obviously have been to prevent any sort of crime that had elements or racial discrimination. Therefore, by leaving the definition vague, they intended that the courts should take a wide approach to prevent defendants in cases like this claiming that the offence they have committed doesn’t come under the Act. This intention would be borne out of a public policy to help create a wider sense of community and integrate people of different race. It would, therefore, be the intention of the legislators that this offence be considered racially aggravated as according to James ‘the focus is not on what was said but the intent with which it was said’ and therefore, it was right that the courts construe the legislation in that way.

Finally, even if the motivation of Mr. Rogers was not entirely a result of his hostility towards members of a racial group, and instead a frustration or annoyance that they were in his way, it is irrelevant. It has been decided in other cases that racial discrimination need only be part of the motivation for an offence for it to be considered racially aggravated. Moreover, in DPP v M it was held that the words “bloody foreigners” used immediately before committing the offence were capable of being construed as expressing hostility based on a victim’s membership or presumed membership of a racial group within the meaning of s.28(1)(a). Therefore, there is clear precedent for this decision.