It can be racist to make reference to 'bloody foreigners' even if the insult is no more specific than that, the House of Lords has ruled.
The decision was made in a case where a man's abusive words and behaviour were judged to have been racially aggravated.
A Mr Rogers was on his way home from the pub in the mobility scooter he uses because of his arthritis. When he came across three Spanish women on the pavement there was an altercation and he was said to have pursued them aggressively into a kebab house.
There he was found to have used abusive, threatening or insulting behaviour, and he called them "bloody foreigners" and told them to "go back to your own country". He was convicted by Winchester Crown Court of using racially aggravated abusive or insulting words or behaviour with the intent to cause fear or provoke violence, and was sentenced to 80 hours of community service.
Rogers appealed to the Court of Appeal but lost, and appealed to the House of Lords, where he also lost his case that the abusive behaviour was not racially aggravated.
While Rogers' legal team conceded that he would have been guilty of racial aggravation had he used a more specific term, such as "bloody Spaniards", they argued that "foreigners" is not a group of people identifiable as a race and as therefore racially insultable.
"It is argued that the hostility must be shown towards a particular group, rather than to foreigners as a whole," explained Baroness Hale of Richmond in her judgment. "Mere xenophobia, it is said, does not fall within the ordinary person's perception of hostility to a racial group."
"It is argued for [Rogers] that the [Crime and Disorder] Act requires that the group be defined by what it is rather than by what it is not," said Hale. "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," she said.
"The mischiefs attacked by the aggravated versions of these offences are racism and xenophobia," said Hale. "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."
The appeal was dismissed in a ruling that could have implications for employment cases which involve a definition of racist or racially aggravated abuse.