Banged to Rights

I was sitting on a bench at the side of the custody office in a police station one night trying to look as if I was minding my own business when a suspect who had just been arrested was brought in.

‘Take that hat off,’ barked the custody sergeant as he began the process of taking the man’s details.

‘It’s not a hat, it’s part of my religion,’ squawked the suspect.

‘No, it isn’t. If it was part of your religion, you would be wearing a tea-towel on your head. That is a hat. Take it off.’

With a bad grace the suspect removed his pudding-basin hat and thick Rasta-type locks cascaded over his shoulders.

I cannot imagine such an exchange happening now. The custody sergeant would be too scared to make a remark that could be interpreted as disrespectful to Sikhs or to Rastas. Somebody somewhere would find out about the remark and would profess outrage. Somebody somewhere would launch an official complaint. It is so much easier to concentrate attention on soft targets – people who are likely to admit they are in the wrong – than to tackle real hard racism. Police officers in particular are vulnerable to such complaints.

We have got to the point where many people decide not to communicate with ‘ethnic minorities’ for fear of saying the wrong thing. How have we got ourselves into this mess?

urdered in south-east London. The initial investigation may well have been incompetent. Some argued that the police were corrupt, that the police had links to the father of one of the suspects who was a well-known drugs baron. As far as I am aware, there was never any hard evidence produced to back this up.

I have been a solicitor specializing in criminal work for many years and can think of many instances in which there have been incompetent investigations. Particularly prevalent recently have been the ‘cannabis farms’. Typically the police have information that a private house has been converted into a cannabis factory. They do a raid and find sophisticated equipment dedicated to growing cannabis: hydroponics, sprinkler systems for watering, lighting designed to provide heat. The house will be photographed showing that it contains almost a forest of plants; there is obviously a well-planned criminal operation but the only person arrested will be a Vietnamese peasant who has been pottering around with a watering can. He will have no right to be in the UK. He will almost certainly refuse to give any information about who has employed him, usually saying that as a person trafficked into the country he had no alternative but to survive by doing this work. No one has thought to mount surveillance on the house, so although they have only managed to arrest someone who is a very unimportant part of the operation the main offenders go free. I don’t know why it seems always to be a Vietnamese but this is my experience.

Stephen Lawrence had two articulate parents who launched a campaign for ‘justice’ and persisted with press conferences and lobbying with an admirable determination to find out the truth about their son’s murder. The issue simply would not go away, and Stephen’s parents were advised to launch a private prosecution since the CPS were not prepared to prosecute. There was only one witness who identified the suspects and to prosecute on the basis of one eyewitness is always risky, so it was no surprise when the private prosecution failed.

The case still excited public attention. In July 1997 the Home Secretary announced that there was to be a judicial inquiry into the murder investigation to be chaired by Sir William Macpherson, a retired High Court judge. When Macpherson’s report was published in February 1999 politicians of all parties rushed to applaud its findings and to say that its 70 recommendations should be implemented. The police, according to Macpherson, was ‘institutionally racist’. Even if they did not know they were racist, they were. The label of ‘institutional racism’ has haunted the police ever since. No government spokesman was prepared to say the label was nonsense.

All racist ‘incidents’ should be investigated, said Macpherson. ‘… the term ‘racist incident’ must be understood to include crimes and non-crimes in policing terms. Both must be reported, recorded and investigated with equal commitment.’ The public would prefer the police to limit themselves to criminal investigations: Macpherson did not agree. With the definition of a racist incident being ‘any incident which is perceived to be racist by the victim or any other person’ there can be no objective standard. A person accused cannot say: ‘It is absurd for the witness against me to say he is upset. No normal person would have found what I said distressing.’ It can be argued, of course, that an allegation is trivial and not a crime, but most defendants are not prepared to take the risk of pleading not guilty and incurring a heavier penalty. There is no plea-bargaining when a criminal offence is ‘racially aggravated’.

Drunken abuse in a pub may contain only one word which could be construed as racist. It is very obviously something not said with any serious intent, but the police and prosecution will pursue it. Call someone a ‘git’ when he accidentally spills your beer and you may not end up in court. Call him an ‘Irish git’ and you may well find yourself facing a prosecution.

Particularly toxic was Macpherson’s recommendation that the law should be changed so that offences ‘involving racist language or behaviour’ committed ‘otherwise than in a public place’ could be prosecuted. The Public Order Act 1986 which creates offences dealing with threats of violence, behaviour ‘likely to cause harassment, alarm or distress’ rightly rules out prosecutions for offences in private homes. Snooping on people’s privacy is too intrusive. Fortunately, not even the fawning politicians accepted this recommendation and at least in private free speech is preserved.

So where are we now, years after Macpherson? A government report published in 2009 noted that reporting of ‘hate crimes’ (broadly, mostly those perceived as racist) had increased to around 60,000 incidents a year, compared with 9,000 across the whole of the United States. As the criminal law now stands, not only can offences such as assaults, criminal damage and threatening behaviour be ‘racially aggravated’ they can also be ‘religiously aggravated’, enabling those alleging they have been offended by street preachers to launch spurious complaints. Thus this year when two men in Bristol preached in a shopping centre quoting parts of the King James Bible they found themselves prosecuted, fined and ordered to pay costs. The prosecutor was reported as saying that quoting parts of the Bible in the context of modern British society ‘must be considered to be abusive and is a criminal matter’. The appeal against the conviction was successful, but arguably the case should never have been brought.

It is only too easy to report a ‘racist incident’ and the police are very conscious that there will be plaudits if they can show that they are taking such reports seriously. The Crown Prosecution Service report of July 2016 shows that there has been a success rate of 83.8 per cent convictions for racially aggravated crimes in 2015-16, far higher than for other types of crime. However, the number of cases referred to them by the police had fallen by 9.6 per cent compared to the previous year. The apparent fall was to be investigated, and I would be surprised if the finding were to be quite simply that the incidence of racial trouble is lessening. The incentive is to sniff out every incident, however trivial, and the decrease will doubtless be ascribed to under-reporting. The Crown Prosecution Service these days refers to ‘victims’ rather than ‘complainants’. The concept of ‘innocent until proved guilty’ appears to be eroded.

When sentencing, a criminal court must increase the sentence for a racially or religiously aggravated offence to mark the racial or religious element; there is no discretion. Magistrates these days are no longer independent when it comes to sentencing, and nor are crown court judges. Sentencing levels are prescribed not by Parliament but by the Sentencing Council, an unelected group of legal professionals. They can be asked to justify their sentencing guidelines by a parliamentary committee, but the committee has no power to re-write any of their recommendations. Thus a person appearing in a criminal court has the level of sentencing fixed within certain parameters. Then on top of whatever the sentence is calculated to by using the fixed instructions in the guidelines, there has to be an additional element imposed to reflect the racial or religious aspect, which has to be announced in open court. A drunken remark made with no real desire to offend can add to a prison sentence.

Racists are to be found everywhere. Whether it is helpful to prosecute every incident, however trivial, is questionable. It can cause a resentment and sense of unfairness which is counter-productive. My own view is that police officers are no better nor worse than the rest of us, that most of them – some would be surprised to hear me say this! – are well intentioned. The custody sergeant all those years ago who told a suspect to remove his hat had no racist thought and the suspect himself laughed as he took his hat off.

In 2005 the rule of double jeopardy was scrapped so that although a suspect had been acquitted of a crime if there was new overwhelming evidence, a prosecution could be launched again. In January 2012 two of the suspects, Gary Dobson and Stephen Norris, were found guilty of murder at the end of a six-week trial. New forensic evidence found on their clothing linked them to the murder.

Jan Davies is a solicitor.

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This article first appeared in the Winter 2017 edition of The Salisbury Review. (Subscriptions from as little as £10 a year)

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