Back in June of this year (2016) we looked at the case of Paul Gascogine, the ex-English footballer, when he was charged with racially aggravated s5.
On 19th September 2016, it was publicised that Mr Gascoigne had pleaded guilty to ‘racially aggravated abuse‘. This related to a comment that he made during a show at Wolverhampton on 30th November 2015.
What was said?
Mr Gascoigne said to Errol Rowe, a black security guard in the venue, “can you smile please, because I can’t see you?“.
What’s the law?
Assuming that the offence is racially aggravated s5 (which seems to be the case) – this is the ‘normal’ s5 offence – namely, that a person is guilty of an offence if he—
“uses threatening or abusive words… within the hearing or sight of a person likely to be caused harassment, alarm or distress thereby“.
But one that is ‘racially aggravated’ for the purposes of s31 Crime and Disorder Act 1998.
This states that :
An offence is racially aggravated if … —
(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 group; or
(b) the offence is motivated (wholly or partly) by hostility towards members of a racial group] based on their membership of that group.
(2) In subsection (1)(a) above—
“membership”, in relation to a racial … 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.
In addition, it would have been accepted that Mr Gascoigne intended that “his words… be threatening or abusive … or is aware that it may be threatening or abusive“.
The offence is non-imprisonable – Mr Gascoigne could not be sent to prison – he face a financial penalty only.
The Judge said “Mr Rowe was clearly humiliated on stage, as part of an act. As a society it is important that we challenge racially-aggravated behaviour in all its forms. It is the creeping ‘low-level’ racism that society still needs to challenge. A message needs to be sent that in the 21st century society that we live in, such action, such words will not be tolerated”.
Although because there was a guilty plea, the question of the guilt or otherwise of Mr Gascoigne was not something that was up for consideration, it seems that the Judge ‘praised’ the CP for bringing it to Court.
Mr Gascoigne was sentenced to a £1,000 fine, with an order for compensation to Mr Rowe of £1,000 as well.
Is it a sensible prosecution?
There was some comment when Mr Gascoigne was charged, with a fair amount of ‘raised eyebrows’ as to whether a charge was really in the public interest.
It is hard to disagree with what the Judge said in sentencing, although assuming that it is not a contravention of Art 10 to prosecute in these circumstances, I certainly have doubts as to whether a prosecution here was needed.
Over to you to discuss …