We thought that, at long last, we were seeing change in how the system deals with racist attacks.
Macpherson’s recommendations, we were led to believe, had set in place a systematic process through which racist attacks would now be taken seriously by the police, Crown Prosecution Service and courts. But now a judge has called into question Macpherson’s proposals.
Victims of racially motivated violence have always had to struggle against the police to take the crimes against them seriously and record them as racial, not just ‘neighbourly disputes’ or ‘gang fights’. If they managed to get a proper police investigation which acknowledged the racial nature of the case, they would then have to hope that the CPS brought a prosecution to court. Then, once the trial started, there would be the danger that the racial dimension to the case was ignored. Or, later, the judge might give an unfairly lenient sentence, on the grounds that, in some way, the victim was asking for it. At each stage, the victim risked seeing justice denied.
Importance of Macpherson
The Macpherson recommendations were to change all that. To counter the problem of the systemic failure to acknowledge racial motivation in their investigations, Macpherson proposed that police officers take the widest possible view of when to record an incident as racially motivated. He endorsed the formula of the Association of Chief Police Officers on racial motivation, that the police are to treat an incident as racist when it ‘is perceived to be racist by the victim or any other person’.
On the question of prosecutions, Macpherson recommended that, to prevent racial motivation cases being spuriously dropped, or treated as non-racist at trial, the CPS should ensure that, at all stages of prosecution, any evidence of racist motivation be recognised and referred to. He went on to state that the CPS ought to have a duty to ensure that ‘such evidence is referred to both at trial and in the sentencing process’ and that no ‘plea bargaining’ should ever be allowed to exclude such evidence. He made it clear, however, that he did not propose to alter the criminal standard of proof for racially motivated crime.
So, for example, in a murder case, the police would have a duty, if there was any perception of racism, to investigate the crime as racially motivated. In practice, the investigation would not be substantially different from investigating any other murder. The work of collecting witness, forensic and CCTV evidence would be done in the usual way. The value of recognising the racial dimension would be that the police were more aware of the possibility of this motive. However, the CPS would have to decide if there was any evidence, not just perception, of racism and, if there were, bring the evidence to the trial. Any evidence brought of the defendant’s racism would have the same status as motivation evidence in any other kind of trial (for example, in the trial of a wife-batterer, the prosecution may wish to bring evidence of the defendant’s attitudes to women). The defendant would not face charges of racism or racial aggravation, just murder. And the usual standards of proof for a criminal court would apply. But that would not mean that any evidence of a racial dimension to the case would not be brought to trial.
Macpherson’s recommendations thus imply, at different stages in the system, the use of different criteria to decide whether racism is involved. But that is nothing extraordinary. It is perfectly normal for the police to investigate claims on the basis of mere suspicion or perception (as black people will know only too well). If it then turns out that no evidence can be found to back up the claims, then those claims ought not be brought to court.
Macpherson attacked
Yet the disjunction between police and court criteria for recording racism has now become the basis for yet another attack on Macpherson’s recommendations. The process of change that Macpherson initiated, the hope that finally racist attacks would be properly dealt with by the system, is now being undermined by a judge who is supported by the right-wing press (see Daily Telegraph editorial, 11 April 2001). He has issued a statement in which he claims that Macpherson’s definition of a racist incident is potentially problematic and ought to be reconsidered. His concern appears to be that, while a court requires ‘objective’ standards of proof, the Macpherson definition is ‘entirely subjective’. He discerns a problem on those occasions when the police announce that an incident is being investigated as racially motivated but no evidence for racial motivation is brought to court. He suggests that, in such cases, the trial may become prejudiced against the defendants if the jury know that they have been investigated as racists, even though they are not being treated as such in court. Yet, by the same argument, any announcement by the police as to the nature of their investigation into any crime could risk prejudice!
What is really at issue here is the fear that racism is an ’emotive’ issue. Critics of the Macpherson report prefer to avoid the ‘R’ word at all costs. The merest mention is considered enough to prejudice an entire trial.
Fudge by the judge
Ironically this problem has, in fact, been worsened by some of the very measures intended to challenge this thinking. Section 28 of the Crime and Disorder Act 1998 for the first time allowed a charge of racial aggravation to be added to other charges (such as assault, malicious wounding, actual or grievous bodily harm) to increase the maximum sentence. But because, under this measure, racial motivation is a part of the charges, rather than the investigation or the evidence brought at trial, racism has to be proven according to the criminal standard of proof, rather than the Macpherson definition. And many would say that to prove charges of racial motivation beyond reasonable doubt is in itself problematic. But, now that there are specific charges for racial aggravation, there is the danger that judges will order that if these charges are not being brought, then anything a jury hears of racism will necessarily prejudice the case.
But this argument is not only an insult to jury members, who are capable of putting aside their memory of a prior police investigation, or even evidence presented to court of perceptions of racism, if they decide it is immaterial to the charges. The argument is also flawed because where charges of grievous bodily harm with intent or murder are being brought, there is no allowance in law for adding racial aggravation charges (GBH with intent and murder already carry a life sentence, so racial aggravation charges cannot increase the maximum sentence). The result of following this argument through to its conclusion is that a murder or GBH with intent trial could never acknowledge racial motivation, either in the investigation, charges, trial or sentencing.