The difference between a racial incident and a criminal offence!
Published in the New Law Journal - NLJ  651-2.
The collapse of the trial involving two Leeds United footballers raises some interesting issues when it comes to racial motivation or hostility. Certainly Mr. Justice Poole was firmly of the opinion that a Sunday Mirror article1 - which indicated that racism could have played a part in the alleged assault ñ amounted to "a clear and substantial risk of prejudice" to the defendants and in the circumstances, of members of the jury having read the offending article, he decided that he had no alternative other than to halt the trial.
In doing so, Justice Poole criticised a key recommendation of the Macpherson Report by repeating concerns that he had made in initial legal arguments and criticising the definition of a racial incident as being "fully and entirely subjective". Indeed, he went on to sayÖ "The risk of police using that definition in their investigations in the absence of any objective evidence has the potential for causing serious mischief and ought to be considered".2
Subsequently Sir William Macpherson stoutly defended the Stephen Lawrence Report, with him insisting that the definition of a racial crime had to be broad to stop the police "sweeping these kind of incidents under the carpet".3
This article seeks to examine the issues raised by Mr Justice Poole.
The definition of a racist incident.
In 1986 the Association of Chief Police Officers established a definition of racism that referred to ëany incident in which it appeared to the reporting or investigating officer that the complaint involves an element of racial motivation or any incident which includes an allegation of racial motivation made by any personí as being one that should be classified as racist.4 This was followed in 1999 by recommendation 12 of the Macpherson Report, which says that the definition of a racist incident should be ëany incident that is perceived to be racist by the victim or any other personí.5
Logically, the Macpherson version can simply be seen as a ëcrisperí or ëbriefí version of the earlier ACPO definition. On the basis of either definition, the Stephen Lawrence murder must be classified as a racist incident ñ because Stephen Lawrenceís mother says it was. It matters little that she was in Birmingham at the time of her sons attack in London, if she notifies the police that she believes it is a racist incident ñ it must be classified as one.
In the Leeds United Footballers case, the police initially conceded to the press that they had categorised the incident as being racist ñ which resulted in much publicity because of the high profile of those accused. If we assume that comments similar to those of the victimís father, as published in the Sunday Mirror, were passed onto the police, then a racial incident classification must be regarded as accurate.6
The Courts are looking for evidence of racial hostility.
Classification of crime as a racist incident does not and cannot mean that there is evidence to bring before the courts to justify charges for racial aggravation. Indeed, the classification relates more to statistical data than it does to evidence of a criminal offence.
If we look at Part II of the Crime and Disorder Act 1998, it is clear that the Courts have an alternative verdict approach when it comes to tackling racially aggravated crime. Firstly, a defendant has to be found guilty of the basic offence, before the Court can determine a separate offence in relation to racial aggravation.
By way of example, imagine that John Smith finds Mohammed kissing his wife and punches him saying "take that you black bastard". It is possible that John Smith could be charged with two offences ñ ëcommon assaultí and ëracist common assaultí. It is only if the Courts determine that the defendant is guilty of common assault7 can they go on to consider if he is guilty ñ beyond reasonable doubt - of racist common assault.8 In determining the racial element the Courts are NOT required to use the Macpherson-ACPO definition of a racial incident in determining guilt. What they are required to do, as per s.28(1) of the Crime and Disorder Act 1998, is to determine if "at the time of committing the offence, or immediately before or after doing so, the offender demonstrates towards the victim hostility based on the victimís membership or presumed membership of a racial group, or the offence is motivated (wholly or partly) by hostility towards members of a racial group".
This requires the Courts to look for some objective evidence of racial hostility. If we take the example of John Smith assaulting Mohammed, the objective evidence can be seen in the words used at the time of the assault ñ "take that you black bastard". Quite whether such evidence is sufficient to establish guilt would be up to the Court (probably Jury) to determine beyond reasonable doubt. However, this would be determined on the facts and, as such, it is difficult to appeal against assuming that the Judge correctly explains and applies the law.
It is important to recognise that, in order to determine guilt, the courts are looking more for evidence of racial hostility than they are for motivation. Racial hostility can be found in a combination of an hostile action, together with racist words used at the time of an attack, or inferred from the existence of an association with a racist cause or group. It cannot, however, be solely determined from differing racial backgrounds between the victim and the defendant. Nor, can it be inferred from the opinions of persons (such as relatives) who were not present at the scene of the offence and who are making observations simply from gut feelings or assumptions.
The relevance of a racial motive.
Clearly a racial motive can be of relevance, but it is important to remember that it is not necessary to determine guilt. If we return to the example of John Smith assaulting Mohammed, the motive for the attack could well be one of jealousy ñ simply because Mohammed is found kissing his wife. Indeed, the defendant may not even recognise that his motive could be one of jealousy, and as such it is expecting a lot to assume that a jury can readily determine, beyond reasonable doubt, what his motive really was. However, a jury can determine that the hostile assault, combined with the racist words ëtake that you black bastardí, provide the potential for determining racial hostility. Accordingly, under existing law, they can determine guilt on the basis of, what Justice Poole callsÖ"objective evidence".
This should not be taken to mean that I am advocating that racial motive plays no part in the Courts proceedings. Indeed, motive often plays a vital part in proceedings when it comes to sentencing, with judges and magistrates at times sympathetic towards persons who have committed crimes with a respected motive, and harsher towards defendants who displayed an aggravating feature or a motive based upon greed or hostility.
Pre-trial publicity and race issues.
It is clear from the comments of Mr Justice Poole that he was not expressing concern about the Crime and Disorder Act 1998 and the racial aggravation offences. Indeed, his comments principally stem from both the pre-trial and in-trial publicity that surrounded the Leeds United Football case.
It seems that there was almost press frenzy when some major footballers were allegedly involved in an incident that had the hallmarks of being a racist incident. Naturally, the reporters wanted a story and some would go to almost any lengths to get ahead of rival reporters. Inevitably, the press sought information from the police about the incident.
However, what could the police do when asked for a statement? To deny that an attack upon a person of an ethnic background, by a group of predominantly white persons, was being classified as a racial incident is certain to be problematic given the experiences of the Stephen Lawrence inquiry and the requirements that they should classify the crime as racist if somebody has perceived it to be so. Just imagine the press headlines, ëPolice ignore complaints and deny a racist attackí. Alternatively, if the police express that the crime is being considered as a racial incident the press are also able to proceed with ëFootballers involved in a racist attackí. It follows that whatever, the police say, they can be damned.
Logically, the police ñ if they need to issue a press statement - should explain the true facts and hope and trust that accurate reporting will follow. It subsequently falls to the police to establish a confidential file of evidence, which should include any information of a racial element, and pass the file to the Crown Prosecution service whose duty it is to bring evidence of racial aggravation before the Courts if they find that it exists.
It follows that if no prosecution is instigated for a ëracial offenceí, the defendants must be considered as innocent in relation to any claims of ëracial hostilityí and any publicity should accurately reflect this.
It seems that the police and the Home Office have recognised that problems can exist with publicity statements in racial incident cases9 ñ in that the initial publicity may indicate that it is a racial incident, which indirectly signifies that a serious racist crime could have been committed, while subsequent evidence only results in a lesser offence being charged and prosecuted. As such, it may be appropriate for the police to be cautious with publicity statements.10
However, racism is not the only high profile area where such problems exist. Indeed, murder is another area that has similar difficulties. Often we read in newspapers that ëV has been murderedí, only for D to be charged with manslaughter. Potentially the pre-trial publicity could be prejudicial to D, but that generally does not result in a judge calling for the definition of murder to be re-considered.
What is important in all these types of cases is that the judge should give proper directions to the jury. Indeed, returning to the Leeds Footballers case, it is clear that Justice Poole did advise the jury that there was ëno evidence of any racial motivationí. That direction would under normal circumstances have been enough. What caused the problem in the Leeds United footballers case was not the definition of a racial incident, but irresponsible journalism during the trial. It is self evident from the resignation of the editor, that something went wrong in the way the Sunday Mirror handled the story.11
There is nothing seriously wrong with the definition of a racist incident as established by Sir William Macpherson-ACPO, so long as its legal limitations are recognised. Mr Justice Poole is correct when he says it is entirely subjective, and for such reasons it fails to relate to the Crime and Disorder Act 1998 ñ which requires the police and Courts to look for evidence of racial hostility.
However, the ACPO definition of a racist incident is not new and has been in existence for some 15 years. Macpherson simply made the definition ëcrisperí, which enables the police to provide statistics on racial incidents, helps classify racist crime and equally importantly it has, in the words of Kevin Morris, President of the Police Superintendentsí Association, "helped give the police a better understanding of racism and racially motivated crime".12
Dr Peter Jepson.
 9th April 2001.
 The Guardian, ëLeeds Trial Collapseí - 10th April 2001.
 ëMacpherson angry at criticismí by Nick Hopkins, The Guardian, 10th April 2001.
 ëThe definition of a racial incidentí NLJ  1838-9.
 This recommendation has been accepted by the Home Secretary and incorporated into practice by the Association of Chief Police Officers.
 Because, at least one person perceives the incident to be racist.
 With a maximum sentence of six-months and/or a £5000 fine.
 A maximum sentence of two-years and/or an unlimited fine.
 A Home Office source confirms that more care may be needed with publicity statements.
 Over recent weeks it is noticeable ñ particularly with regards to the racial incident problems in Bradford ñ that the police have been more cautious with press releases.
 Trinity Mirrorís Newspapers said, on the resignation of its Editor, that there had been a ëserious error of judgmentí. See ëEven old pros get unluckyí, The Times, 13th April 2001.
 Nick Hopkins, The Guardian, 10th April 2001.