Tackling Militant Racism.

Written by Dr Peter Jepson

Email: law@peterjepson.com

The Crime and Disorder Act was given Royal Assent on the 31st July 98 and despite the loss of the "gay rights" clause(footnote1) it remains to be a radical piece of legislation.

Indeed, during its passage though Parliament the Crime & Disorder Bill was amended in a number of key areas associated with tackling racially-aggravated crime. For example, the amendments have established a new offence of racial criminal damage and a proviso that seeks to prevent a defence that religion rather than race was a reason for hostility. While both of these important amendments should strengthen the legislation, this article will argue that other issues need to be addressed to make the legislation fully effective in tackling militant racism - i.e. racism that is combative in nature, examples of which are racial harassment and attacks.

Part II, section 28 of the Crime and Disorder Act 1998 specifies that an offence is racially-aggravated if:

bullet"(a) at the time of committing the offence, or immediately before or after doing so, the offender demonstrates towards the victim of the offence hostility based on the victim's membership (or presumed membership) of a racial group: or
bullet(b) the offence is motivated (wholly or partly) by hostility towards members of a racial group..."

Further, it is immaterial whether or not the offender's hostility is also based to any extent on the fact or presumption that any person or group of persons belongs to any religious group. Thus, it will not be an arguably strong defence to claim - "I was not being racially hostile - I was essentially attacking him because he is a Muslim".

The legislation enables the Courts to pursue a tough sentencing policy when it is faced with crimes of racial harassment and violence. It does this by enabling a court to determine the basic offence along with any racial offence charges that have been brought. The net result of this alternative verdict approach being that if a jury considers that Adam is guilty of say common assault, they may then have the responsibility of going on to consider if he is guilty of the more serious offence of racially-aggravated common assault. The consequences of this are indeed significant, with a six-month maximum prison sentence applying for common assault and up to 2 years for racially-aggravated common assault.

What is more, as the below table demonstrates, this alternative verdict approach applies to assaults, criminal damage, harassment and the public order offences such as provocation of violence.

Existing Offence

Maximum Penalty

Max Penalty for racial equivalent.





Common Assault

6 mths and/or level 5 fine (5000)

2 years imp. And/or unlimited fine.

Assault - actual bodily harm

5 years imp.

7 years imp.

Malicious wounding

5 years imp.

7 years imp.




s4 POA 1986 prov of violence

6 mths and/or level 5 fine (5000)

2 years imp and/ or a fine.

s4a POA intent harassment

6 mths and/or level 5 fine (5000)

2 years imp and/ or a fine.

s5 POA harass/alarm/distress

Level 3 fine - (1000)

Level 4 fine - (2500).




s2 Haras Act 1997-harassment

6 mths and/or level 5 fine (5000)

2 years and/or level 5 fine (5000)

s4 Haras Act 1997-fear violence

s1(1) Crim Damage Act 1971

5 years imp.

Summary 6 mths and/or statut max fine - Indictment - 10 years imp.

7 years imp.

Summary 6 mths and/or statut max fine - Indictment 14 years imp.





For this new legislation to succeed it is evident that two major issues need to be addressed. The first is the identification of racist crime, and the second is that of charges being brought - with the case being dealt with in the appropriate Court.

Identifying racial crime - a need to amend the ACPO definition.

The key to the first of these must be the investigation stage that is conducted by the police. Since 1986 the police forces in England and Wales have been working to the ACPO(f2) definition. This defines racial incidents as being:

bullet"Any incident in which it appears to the reporting officer or investigating officer that the complaint involves an element of racial motivation or any incident includes an allegation of racial motivation made by any person".

This definition is essentially subjective in nature, with motive often impossible to determine objectively and accurately - since it usually involves the reading of the mind of a perpetrator. To this extent, changes to the ACPO definition(f3) - in light of the Crime & Disorder Act 1998 - to include racial hostility should not only provide consistency with the legislation but also assist by introducing an element of objectivity to the criteria. Indeed, racial motive and hostility can be two very different elements as the facts in the case of R v Cole (and others (f4)) help demonstrate.

In Cole the victim (Mr Kagwi) was asked to leave a public house after it was alleged that he had blown down the neck of a woman. Outside the public house later that evening the defendant Ms Cole said to her companions "there's that bloody nigger" and proceeded to assault Mr Kagwi by throwing beer over him and smashing a glass on the side of his head. The victim was rendered unconscious and further blows caused him to lose the sight of one of his eyes. When people tried to help the victim Ms Cole said, "what do you think you are doing - he's only a coon". Hare(f5) cites this case as an example of a situation where there is no necessary relationship between making racist comments and having a racial motivation for the assault. His comments seem to be based upon the assumption that the words used, although racial, are not conclusive as to a racial motivation for the attack - with an alternative explanation being that the assault was due to Mr Kagwi's conduct of blowing down the neck of a woman. While that may be the case so far as racial motivation is concerned - the racist words used, at the time of the attack, demonstrate racial hostility towards the victim. Thus, if this case were to be tried under the Crime and Disorder Act 1998 it seems probable that a Jury may fail to establish racial motivation(f6) - but find that racial hostility was evident at the time of the attack(f7). In these circumstances, the defendant would be given an enhanced sentence due to racial motivation and/or hostility - with there being no difference between racial motivation and hostility for the purposes of sentencing. It is obviously possible that in sentencing the Judge may wish to take into account the fact that the defendant has been found guilty due to the existence of an easier threshold for racial hostility than exists for motivation. However, the Act does not differentiate and a Judge may have limited powers in this area - with any perceived policy of giving such leniency being open to challenge in the appeal courts.

The CPS and the 'plea for venue'.

However, not only is it important that crime is correctly identified as being racially-aggravated it is equally important that the Crown Prosecution Service pursue any racial element when it comes to laying down charges and bringing the case to Court. To this extent, it is possibly a shame that the legislation does not include a provision that places the CPS under a statutory duty to pursue racial charges where the evidence so justifies. This would have had the advantage of ensuring that plea-bargaining - i.e. offering to drop the more serious racial charges in favour of a comparatively easy guilty plea - is not driven by financial factors.

Also of relevance, is that, in any 'pleas for venue' the Magistrates determine that where a racial charge is made (i.e. assuming a prima facie case exists) the case should go to the Crown Court for determination. This should apply because of, and notwithstanding, the Courts statutory duty under - s.82 of the Crime & Disorder Act - to treat any racial aggravation as an aggravating factor that increases the seriousness of the offence. This 'plea for venue' approach could likewise apply to incidents of criminal damage that display racial hostility(f8) - even where the value of the damage is below the minimal 5000 threshold that normally ensures that the defendant(s) can opt to be tried summarily.

New powers for local authorities.

While Part II of the Crime and Disorder Act gives the Courts new powers to tackle militant racism - Part I of the same Act also gives powers to Local Authorities. These powers enhance a Local Authority's ability to tackle [racial and general] harassment through the use of 'anti-social behaviour orders'. These are applicable(f9) to person's aged 10 or older - where it appears that the person has acted in a manner that caused or was likely to cause harassment, alarm or distress - with a prison sentence forthcoming should the defendant undertake further acts prohibited by the order.

In addition, s.6 of the Crime & Disorder Act 1998 requires a Local Authority to work with the Chief Constable of the area to determine a "Crime & Disorder Strategy" for the locality. Obviously, this should involve a co-ordinated approach to tackling militant racism.

In conclusion

As this article indicates the Crime & Disorder Act 1998 provides the police, courts, and local authorities, with some welcome and useful tools to tackle militant racism. However, the success of this legislation rests upon the identification and prosecution of racial incidents - a key starting point in this regard must be an amendment to the police definition of a racial incident.

15th August 98.


f1 The amendment to the Bill from Anne Keen MP that would have enabled gay people to have lawful sex at the age of 16 like heterosexuals can.

f2 Association of Chief Police Officers.

f3 The Home Office has indicated that they are working on a change to the ACPO definition, while acknowledging that the Stephen Lawrence Public Inquiry may make some recommendations in this area.

f4 [1993] Crim LR 300.

f5 'Legislating Against Hate - The Legal Response to Bias Crimes' by Ivan Hare at page 430 - Oxford Journal of Legal Studies Vol 17 page 414. 1997. Ivan Hare is a Fellow of Trinity College, Cambridge.

f6 Under s.28(1b) of the Crime and Disorder Act 1998l.

f7 Under s.28(1a).

f8 e.g. racist graffiti.

f9 Anti-social behaviour orders apply for a minimum of two years and are to be obtained by application to a Magistrates Court.