Challenging racial violence using the law

Anti-racists have long campaigned against the way the police and criminal justice system have failed to deal with racist attacks. In 1998 the Crime and Disorder Act introduced, for the first time, a series of racially aggravated offences – to take account of racial motivation.

In 1999 Macpherson recommended a new, wider definition of a racial incident – intended to change police practices. Evidence is now emerging from a number of trials to show that prosecutors and judges are reluctant to embrace racial motivation in their deliberations. And some police forces are not distinguishing between inter-racial crimes and racial incidents – and are therefore presenting controversial crime statistics which show whites as the most likely victims of racial violence.

At the NCRM conference in May two legal experts, Professor Lee Bridges and Mike Mansfield QC, discussed the implications of recent changes. Lee Bridges warned anti-racists how the law can be used against them under the present (law-and-order) government, while Mike Mansfield underlined the important educative function of legal provisions such as the racially aggravated offences.

Lee Bridges: I want to talk about some of the problems associated with the new offences in the Crime and Disorder Act. I think it also raises a wider issue – that there are real risks and dangers in trying to use the law and the criminal justice system, not just to defend people accused of crime, but as a positive instrument for combating racism in society.

When the Home Office came to implement the Labour Party promise at the 1997 election, to make specific legal provision for racially motivated crime, they did it in a really odd way. They took a number of offences – assault, criminal damage, various public order offences – and created out of these ordinary offences, new racially aggravated ones. If such offences are committed with racial motivation, under the new law you will now be convicted of, for example, racially aggravated assault or racially aggravated criminal damage.

The purpose was to be able to lay down in statute much higher maximum sentences where there is racial motivation in committing these offences. This approach was problematic for several reasons. First, if you took more serious offences like murder, you couldn’t increase the sentence beyond the present maximum of life imprisonment. The act did try to cover this by saying that if you committed any offence other than the ones specified, and it was shown to be racially motivated, that could be taken as an aggravating factor when it came to passing sentence.

I find it all odd, because as far as I know, nobody was arguing that if people got arrested, charged, prosecuted and convicted of offences like racially-motivated assault, criminal damage, etc against black people, that they were getting too lenient sentences. That wasn’t the problem. The problem was they didn’t get arrested; if they got arrested they didn’t get charged; if they got charged, they very often had the charges dropped or the prosecutors did a deal to bring the charges down to a less serious charge for a guilty plea (as is quite common in the system) and you had trouble convincing magistrates and juries about the offences. Only on rare occasions were there convictions and sentences. But no one was suggesting that if people went all the way through that system, the problem was that they didn’t get heavy enough sentences.

And it is arguable that the law has now made that situation worse. If I am a prosecutor and I have someone in front of me who has committed an assault against a black person, if I want to prove racial motivation, I have to get evidence of that, ie additional evidence. And I might very well think, in the atmosphere of a trial before a jury, that to try to meet that extra burden by finding the evidence and proving racial motivation, is not worth it. I’ve got enough trouble proving the assault and getting the jury to go along with that.

It will be more difficult to convict people of these racially motivated offences because you know that the Daily Mail will be there saying this person is being oppressed, called a racist etc. And that is a line which will be spun to the jury by lawyers defending people accused of these new racially-motivated offences. Indeed, it could have the reverse effect, of making juries or magistrates more sympathetic to the defendants in such cases and less likely to convict them of the actual offences of criminal damage, assault, etc. So I think the new law has probably made it worse than it was before, when there would have been a prosecution for criminal damage, assault, etc without the additional factor of racial motivation.

The law is not a neutral instrument; those administering it are not neutral in the process. They are tainted with racism through and through. And they will turn things around against the black community. I will give two further examples. Black groups, in fighting racial harassment in housing, pioneered the idea of using civil injunctions against racists, because it was often very difficult to prove criminal offences against them. So the idea was you could take them to court, get a civil injunction against them to tell them to stop doing something and then, if they did it again, you could punish them under the civil injunction. This was a very creative way of tackling what was a very difficult problem. But the idea has been seized on and turned into anti-social behaviour orders – which are used against people in general, including a lot of black people.

We have emphasised the need to care about the victims of racial attacks. But the New Labour government is going to use victims as the battering ram for destroying the ability of people to defend themselves in the criminal justice system. We are going to get victims’ rights, we’re going to get victims’ statements in trials, we are going to get a whole raft of those things and they’ll say that this is to help black victims of racial crime, as much as to help anybody else. But in reality the government is using this concern about victims to tear down quite fundamental rights in the system.

On racially motivated crimes, I personally would get rid of those sections of the Crime and Disorder Act which created specific racially aggravated offences. But I’d leave that section of the Act that said that for any criminal offence where there is evidence of racial motivation, this can be taken as an aggravating factor in sentencing.

But what the government resisted, interestingly, was any duty on the prosecution and the police to bring forward evidence of racial motivation. That is probably what we do need to have. We need to start with Macpherson. If there is an allegation of racial motivation, the police should act on that presumption. I don’t go along with the view that people should be charged with racially motivated crime if there is no specific evidence of this, but where there is such evidence the police and prosecution should be under a legal duty to act on it and bring it forward to court, even if they think it is weak. It can be challenged in court by the defence, I have nothing against that, but the evidence should see the light of day.

Mike Mansfield: I am particularly concerned about the racially aggravated offences debate. I am afraid I am going to disagree with Lee. One has to go back to the debate about creating an offence to incite racial hatred. That debate was all about freedom of speech. (Interestingly, that same debate raised its head again in the general election campaign, when the CRE asked various politicians to sign a pledge which many refused to do.) There is a whole lobby of people who believe that people should be entitled to abuse others as part of what is called freedom of speech. Now we fought a battle against that argument to put it on the statute book. I am not saying that it has necessarily been implemented properly, that’s a different question, but it was to set the agenda, at that time, to say that this was not to be tolerated. Unfortunately, in the current debate no one raised the point that it has nothing to do with freedom of speech in the legitimate sense and it has everything to do with oppression, it has everything to do with those who would wish to see the elimination of parts of our society.

Now I think racially aggravated crime is important; we have to make certain distinctions. And what it did for the first time, and I agree that it is unusual, is to make motive, something that the prosecution had to prove. Historically they had never had to prove a motive. For the racially aggravated crime we have to start to make some important and clear distinctions. The first is that what Macpherson put in his report was not a definition of a racial crime. He just said that a racial incident is any incident which is perceived to be racist either by the victim or by any other person. And it’s quite clear that he was intending this, as he puts in a further recommendation, to include crimes and non-crimes in policing terms. What he was actually addressing is that the police and other institutions have to be alive to what constitutes a racist incident, in order to then gather the material to enable an investigation to develop – whether it’s an internal investigation of an institution vis-à-vis its staff or whether it’s proving a racially aggravated crime. Now in many cases the prosecution will say ‘we can’t look into the heads of people, we can’t say what their motive is’ . But you can infer it from the circumstances. In such cases there should be a duty on the prosecution to gather the information and the evidence which suggests a racially motivated attack. That might be the words spoken through letter-boxes, it may be the behaviour, it may be the nature of two groups of people and so on. There are a multitude of factors which can be put before the court in relation to racial motivation. I do not wish to see this element taken off the legislative agenda because that it precisely what the detractors of the incitement to racial hatred clause wanted. I am anxious to preserve it, anxious to prosecute it.