A two-year independent research project into the Crown Prosecution Service (CPS) has found that while black defendants appear to be more harshly treated than their white counterparts in the criminal justice system, prosecutors are too willing to drop ‘race charges’.

Experience of the criminal justice system

The research by Gus John Associates, which examined 12,913 files finalised between September 2000 and August 2001, revealed that African Caribbean and Asian defendants are more likely to be acquitted than white defendants – which suggests that they are being unnecessarily charged. The CPS is more likely to object to bail for both male and female African Caribbeans (13.2%) as compared with Whites (9%) and likely to object to bail on the basis that African Caribbeans are likely ‘to obstruct justice’. In cases which can be tried by magistrates or juries, African Caribbeans are most likely to opt for jury trial. More cases against African Caribbean defendants are discontinued on review, which suggests that they are being charged inappropriately by the police.

Prosecuting ‘race crimes’

For the first time the evidence has emerged to back up the experience of community-based racial attacks monitoring groups that, despite the experience of the Stephen Lawrence case, the system is still failing victims of racial violence. Although the police are now obliged to log all racial incidents, they do not appear to always recognise the racial dimension of crimes when carrying out investigations before forwarding cases to the CPS. And the CPS prosecutors can compound the problem by discontinuing race cases ‘for lack of evidence’ or allowing the racially aggravated element in a charge to be plea bargained away, something expressly warned against in the Macpherson Report. (The possibility of charging someone with an additional ‘racially aggravated’ offence to the initial main offence was included in the 1998 Crime and Disorder Act.)

Of 12,913 cases examined in the research, 651 had an identifiable ‘racial dimension’. The majority (63%) of defendants were white and of the victims 19.5% were African Caribbean and 39.1% Asian. The report examined 46 cases in depth and made observations from viewing the files on the way both the police and the CPS had handled these cases.

They report on

• the general failure on the part of the police and the CPS to properly acknowledge and/or record racial aggravation in the 46 cases (41.1%) even when there was clear evidence to have reached such a judgement.
• the acceptance of a lesser charge (which did not include the racially aggravated element) by both the police and the CPS (34.5%).
• the CPS downgrading a number of racially aggravated offences put forward by the police (23.8%).

On the police

• In 19 cases the police failed to recognise racial aggravation was involved, despite there being evidence to the contrary from the victim and, on one occasion, from the perpetrator. In 10 cases the victim provided clear evidence and the police took no notice.

On the CPS

• Over 70% of cases, i.e. 33 out of the 46, were found to contain errors and faults committed by CPS prosecutors. (This the CPS has accepted.) The cases demonstrated ‘an apparent lack of awareness/knowledge’ about the correct charging and processing of cases involving racial aggravation ‘but to an even greater extent than the police’. There was ‘ a tendency …not to take forward racially aggravated offences often citing “insufficient evidence” and/or “public interest” as reasons, even when there is compelling evidence to the contrary.’

Outcomes

• Only 5 of the 15 cases charged as racially aggravated by the police were accepted as being racially aggravated by the CPS. 25 of the 33 cases were either discontinued or resulted in the defendant pleading guilty to a lesser charge. In 12 out of the 33 cases either the CPS or the defence initiated a plea-bargaining process if the race dimension were removed. The CPS gave ‘public interest’ as the main reason – the report calls such an assessment ‘questionable’.17 of the 33 cases were discontinued, dropped or no evidence was offered by the CPS.

Responses to the report

• Maxie Hayles, Chair of the Birmingham Racial Attacks Monitoring Unit described the report findings as a great disappointment: ‘If we are going to get things moving, we need the will and the CPS does not seem to have the will. They don’t prosecute when they should, but do, when they shouldn’t. What we need is consistency in the criminal justice system. There is clear evidence to show the CPS and the whole criminal justice system is as racist as it has ever been.’
• A spokesman for the Campaign Against Racism and Fascism (CARF) said,’ We believed that the introduction of racially aggravated offences was a lazy substitute for real work to eradicate racist attacks. Our fears have been borne out by this report. Unless the prosecuting authorities are willing to tackle racism, the introduction of specific offences is counter-productive since, if the racial element is not charged or dropped in a plea-bargain, it can’t be given recognition by the jury or judge in sentencing.’
• Lee Bridges, Chair of the School of Law, Warwick University, said he was surprised ‘at the low levels of compliance within the CPS with monitoring their own actions as regards racially aggravated offences. The fact that it was only in a minority of such cases, that had been identified, that the monitoring form was completed, seems to show a complete lack of commitment among prosecutors to all the grand policy statements of the government and the CPS in this area.’

Recommendations

The outgoing Director of Public Prosecutions, Sir David Calvert-Smith QC, said he was sure that the CPS would use the findings to ensure a fair service to all. In particular he welcomed the recommendations in the report which included the appointment of specialist prosecutors for racist and religious crime to oversee prosecution and monitor decisions about altering or dropping charges or accepting pleas and the establishment of a ‘Common Standard’ for prosecuting to improve the quality of case review, for file endorsement and for the use of Racist Incident Data Sheets.

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