Was Stephen Lawrenceís murder racially motivated?
Article written by Dr Peter Jepson (June 1999).
Legend has it that an iceberg sank the Titanic. No matter what scientific evidence may come forward, we will all continue to accept this popular belief. Likewise, legend has it that Stephen Lawrence was murdered in a racially motivated attack, no matter what academic arguments may be presented ñ we will continue to believe that the crime was racially motivated.
In this article I seek to examine the belief that Stephen Lawrence was killed in a racially motivated attack. I do not seek to provide any other explanation for the attack, I am simply seeking to consider if the current available information could result in a finding of racial motivation.
Sir William Macpherson, in ëThe Stephen Lawrence Inquiryí report, argues the murder of Stephen Lawrence was "simply and solely and unequivocally motivated by racism.[f1]" This finding was not established by supporting evidence in the report, but it is consistent with that of the Coronerís Inquest, where the Jury determined that Stephen Lawrence was killed "in a completely unprovoked racist attack by five white youths". However, these findings were determined ëon the balance of probabilityí ñ i.e. to the civil standard required. In this article, I do not question the wisdom of these findings, but I do seek to determine if the existing evidence can sustain a finding of racial motivation to the criminal standard ñ i.e. ëbeyond reasonable doubtí. In order to determine this issue, I will first outline the staged process of establishing a racial element in a crime and then consider if the available evidence in relation to the Stephen Lawrence case justifies such categorisation.
The racial prosecution process outlined.
Establishing a prosecution for a racial element is a staged process, with an outcome that could result in an enhanced sentence due to any racial hostility or motivation. In practice, each stage of the process needs to be completed to enable the next one to begin. The first stage is the police investigation of the crime. It is vital that the police identify a racial incident[f2] and pass information of any racial hostility/motivation to the Crown Prosecution Service. Should they fail to alert the CPS to the potential of a racial element[f3], it stands to common sense that there is a danger that evidence of racism may not be brought before the Courts. Indeed, the CPS has a duty to bring evidence of racial motivation to the attention of the Court[f4]. The final process is the Court itself, with ñ as we shall see in this article ñ the courts having a duty to consider any racial element, with enhanced sentencing expected where it is established that a racial motive/hostility exists.
The stabbing of Stephen Lawrence was clearly a racial incident.
So far as the Stephen Lawrence stabbing was concerned, there is no doubt that this should be categorised as a racial incident. This categorisation, in itself, does not mean that there exists evidence to determine racial motivation/hostility in any criminal proceedings. Indeed, all the categorisation signifies is that somebody considers a racial motive is evident. Such a categorisation derives from the definition of a racial incident, as determined in 1986 by ACPO - the Association of Chief Police Officers. This establishes that a racial incident is:
The facts in the Stephen Lawrence case certainly provide grounds for such a categorisation. For example, Duwayne Brooks[f5] tells how - just prior to the stabbing - one of the attacking gang shouted[f6] "What, what, nigger?" This evidence displays a racial connection and, combined with an allegation from Mr & Mrs Lawrence that the attack was racially motivated, provides ample grounds for the attack to be regarded as a racial incident. Despite such, it seems that DS Davidson and some 50% of the investigating officerís felt that the killing was due to "bloody minded thuggery" which was not motivated by racism[f7]. In effect, they remained unconvinced by the evidence that the only explanation for the stabbing was that it was a racially motivated attack.
Such scepticism could in some instances be regarded as creditable, in the sense that the detectives had no pre-conceived ideas and were prepared to consider all explanations and leads. Despite such, it is clear that Sir William Macpherson was far from happy with their approach. Indeed, the Macpherson Report deplored the attitude of these police officers[f8], clearly expressing that such a view was inconsistent with the ACPO definition of a racial incident and an "anathema" to Mr and Mrs Lawrence and the black community.
While there is no doubt that the ACPO definition means that the killing of Stephen Lawrence must be regarded as a racial incident, it is important to note that within the categorisation of racial incidents there must inevitably be some cases which are more clearly defined as racist than others. By illustration, if a witness (or even better witnessís) is present at an attack and convincingly says "I saw the attack and heard the racial abuse, ñ it was racist!"; this must be regarded as stronger evidence of a racist attack, than allegations from parents who were not present at the scene of the attack. Under the ACPO definition, both of these examples would warrant classification as a racial incident, but the first must provide the strongest evidence of racial motivation.
This highlights the potential weakness of the ACPO definition of a racial incident. It is entirely subjective in nature, with no requirement that those making an allegation of a racial motive should have first hand knowledge of the events as they unfolded. Notwithstanding this weakness, the response of Macpherson was to recommend a new definition of a racial incident that is even more open and subjective in nature. Indeed, the proposed new definition[f9] reads: "A racist incident is any incident which is perceived to be racist by the victim or any other person." This new definition will certainly serve a purpose of facilitating a basis for statistical analysis, in that any incident remotely considered as being racist, should be recorded as such, alerting the CPS of the need to consider if grounds exist for prosecuting on the basis of racial aggravation. However, one worry is that because of the obvious subjectivity of the definition of a racial incident, it may simply provide a whole number of cases that are remotely racist in nature ñ thereby failing to differentiate between cases which are ëpossiblyí and ëprobablyí racist in nature. As a result, a great deal of the onus for such determination will fall upon the CPS, who will no doubt spend much of their time passing files back and forth to the police, in order to try and determine the extent to which racism plays a meaningful part in the alleged offence.
Sadly, this leaves me to draw a conclusion that the proposed definition of a racial incident is more about public perception and establishing statistics of racial incidents, than it is about providing a definition that is meaningful to investigating officers and the legal process[f10]. An alternative approach may have been to establish a definition of a racial incident based upon a display of racial hostility. A number of advantages would flow from such an approach, the first being that racial hostility is based upon conduct, which is a more objectively measured criterion. The second advantage is that such an approach displays consistency with racially aggravated offences as per s.28 of the Crime & Disorder Act 1998.
The available evidence relating to racial motivation.
Just as the use of the words "What, what, nigger" is central to the classification of the offence as a racial incident, they also lay the foundations for the findings of racial motivation by both the Coronerís Jury and the Macpherson Inquiry. Indeed, these three words are the only words reported to have been expressed by the attackers of Stephen Lawrence. They derive from the evidence of Duwayne Brooks, who said that while he and Stephen were moving along Well Hall Road he became aware of a group of white youths, some twenty yards away. Aware of a danger, he called out to Stephen, asking if he had seen the bus. There was no answer from Stephen, but a reply came from the white youths ñ "What, what, nigger?" Turning round, Duwayne then saw the white youths charging towards them. Duwayne responded by shouting to Stephen "Run! Run!", but it was all too late and moments later Stephen had been stabbed[f11].
Applying these facts to existing law, any person found guilty of the basic offence of manslaughter or murder could expect to be given an enhanced sentence due to the racism associated with the basic offence. Under s.82(2) of the Crime & Disorder Act 1998, the words "What, what, nigger" provide grounds for the Judge to consider the words and treat them as evidence towards establishing an aggravating feature that increases the seriousness of the offence. This applies because at the time of committing the offence, or immediately before or after doing so, the offender demonstrated towards the victim hostility, based upon the victimís membership of a racial group. Indeed, the words used infer that the victim was attacked because he was a member of a racial group, with the action of charging, assaulting and stabbing Stephen Lawrence, all indicative of hostility. Thus, assuming he could rely on these words as having been expressed[f12], a Judge would be entitled to determine racial aggravation and increase sentence accordingly[f13].
Lawrence case could not be prosecuted on the basis of racial hostility.
However, the stabbing of Stephen Lawrence occurred in April 1993 long before the racial hostility offences were introduced. It follows therefore, that the Lawrence case could not be prosecuted on the basis of racial hostility. Indeed, the CPS must prosecute on the basis of determining guilt beyond reasonable doubt in relation to the killing, with a judge then able to take into account any aggravating features - such as a racial motive - when passing sentence[f14]. The difference between ëracial hostilityí and ëracial motiveí is indeed significant[f15], with racial hostility largely determined from objective factors such as words used etc. In comparison, racial motive is much more difficult to determine since it is purely a mental process, with subjectivity the only effective means of determining the issue. For an illustration of the difference between racial hostility and motivation, let us consider a situation involving John (who is white and indigenous) coming home to find his wife in the arms of Muhammad (a black man). John, annoyed, takes hold of Muhammad, punches him and says, "You black bastard". The police are called and they have before them evidence of an assault. The facts display evidence of racial hostility, from the words used, but the motivation seems to be one of jealousy. If the police write up their reports on the basis of racial hostility, it is possible John could face up to 2 yearsí imprisonment[f16]. However, should the police proceed on the basis of a jealous motive, it is evident that that the maximum sentence would be 6 months for common assault.
Prosecuting under the old racial motive system.
Likewise with regards to the Stephen Lawrence case, while the evidence on prima facie grounds produces a strong indication of racial hostility, the issue of motive is not so clear cut.
Under the racial motive approach, the CPS is obliged to bring forward any evidence of racial motivation, with case law providing the grounds for a judge using his discretion to enhance sentence[f17]. A potential major flaw in the racial motive process is that, should a Judge openly express that he has enhanced sentence - by a specific amount - due to racial motive, he would be indirectly inviting an appeal against sentence, on the grounds that this element has not been proven beyond reasonable doubt[f18]. Given that racial motive is determined principally on often purely subjective grounds, this is not a welcome prospect.
Is it possible to rely on the words "What, what, nigger"?
To consider matters further in relation to the Stephen Lawrence, I ask is it possible to rely on the words "What, what, nigger"? It seems the only person who heard these words was Duwayne Brooks. The problem is that Duwayne may not be a reliable witness. For example, he did not give any direct evidence to the Stephen Lawrence Public Inquiry due to trauma following the attack. When he did give evidence in the private prosecution for murder, Mr Justice Curtis rejected the evidence of Brooks because he did not know "In ordinary parlance whether he is on his head or his heels". While these judicial comments relate to the identification of assailants, they do signify that it must be exceedingly unlikely that any Judge would feel confident about any evidence that Duwayne might give in the Stephen Lawrence case. To this extent, there is a real possibility that the prosecution would not be able to prove that racist words were used at the time of the attack. The significance of this is that without firm evidence of racist words, it would be exceedingly difficult to establish a racial motive. To do so would require either a confession or some clear indication of a racial element associated with committing the offence.
The need to establish an overt and single-minded racialist motive.
Even if racist words were established, such words might not be enough to justify an enhancing of sentence. The case of R v Leaney[f19], illustrates the kind of problems that can develop. Leaney had been drinking a can of lager in Brighton. A Mr Ibrahim, a Sudanese student, collided with him, brushing shoulders, resulting in Leaney cutting his lip on the can. Leaney behaved aggressively, "Swearing at three black students and abusing them". A fight ensued down a side street and Mr Ibrahim was fatally stabbed by Leaney. While pre-trial publicity suggested this was a racially motivated attack, neither the prosecution nor any witness described the murder as racial. However, on sentencing the trial judge, Judge Gower, told Leaney:
On appeal, Anthony Hacking QC, appearing for the appellant, submitted that the trial judge was unjustified on the merits in finding a racialist motive and was in any even unjustified in recommending such a lengthy minimum sentence.
In the Court of Appeal, Lord Taylor acknowledged:
These words of Lord Taylor indicate a number of issues, i.e. over and above that of the need to give a defendant an opportunity to deny any racial element. Firstly, it is clear that swearing at and abusing people of a different race, culminating in a violent attack, is not in itself sufficient to determine a racial element. It may help indicate a motive, but it is evidence of a specific and overt racialist motive that is critical. Secondly, even when a racial element is determined in relation to murder, a minimum sentence of around 20 years maybe inappropriate and excessive.
So far as the first issue is concerned, the case of Ribbans, Duggan and Ridley[f20], does provide evidence of racially motivated crime. This case involved Mr Harris (who was black) and Miss Woodward (white) driving into a garage, on their way home from France, to buy some soft drinks. The three defendants were by chance in a van behind them. When Miss Woodward went to the kiosk, they started throwing some chips, that they had purchased earlier, towards her shouting abuse, including remarks: "Nigger lover, how can you go with a coon? Wogís meat."
As she returned to the car, the van drove away briefly only to stop outside the garage exit. The three defendants got out and ran towards the Cortina of Mr Harris and Miss Woodward, kicking the door and punching at the passenger window. At which point, Mr Harris got out and said; "Whatís the problem?"
The answer was, "cause youíre black". Ribbans challenged Mr Harris to a fight. Mr Harris was grabbed from behind and attacked. Miss Woodhead saw a shiny object, probably a screwdriver, pulled from the jacket of Ribbans. Duggan joined in the attack, with video evidence appearing to show that he too pulled out a screwdriver.
Ridley left the general attack and got into Mr Harrisís Cortina. He drove it into the Kiosk and then reversed it over the legs of Mr Harris as he lay on the ground.
On being taken to hospital, it was established that Mr Harris had been stabbed and suffered a significant level of injuries. He had a fractured skull and probably permanent disability to his leg. There was forensic evidence available and also video footage of the attack from the kiosk security cameras. At the flat of one of the defendants, there were racist stickers on the wall and a metal cross and chain inscribed with swastikas.
The Judge, at first instance, took into account the past violent record of all of the defendants and the fact that they were all on bail at the time of the attack. They pleaded guilty to a charge of grievous bodily harm and the Judge imposes a five-year sentence for Ridley and three year for each of the others. The Attorney General appealed against sentence on the grounds that this was unduly lenient[f21]. This was accepted by the Appeal Court, with the following words of the Lord Chief Justice, Lord Taylor of Gosforth:
Since Ribbans, the government has introduced specific offences related to racial violence. To this extent, the arguments found in Leaney, with regards to the need for a specific overt racialist motive, may not be of general value ñ i.e. with regards to criminal offences that have been committed since the introduction of the Crime & Disorder Act 1998. However, the Leaney arguments would certainly apply to any prosecution related to the death of Stephen Lawrence. What this clearly suggests, is that in order to successfully establish a racial motive (and justify enhanced sentencing) the verbal evidence of "What, what, nigger" ñ even if presented ñ would be inadequate. It follows that it will be necessary to find additional evidence that specifically relates to an overt racial motive. Without such firm evidence, it must be likely that any statement by the presiding Judge that the nature of the racist offence justifies an enhanced sentence would simply provide grounds for an appeal as to sentence. Interestingly, given the obvious media and political interest in this case, any failure to mention and establish a racial element associated with the killing, will almost certainly result in adverse criticism of the handling of the case.
Could the video surveillance evidence be used to establish a racial motive?
To this extent, additional evidence relating to racial motivation must be of importance at any trial. Clearly, three of the five prime suspects could not be prosecuted again for manslaughter or murder, since they have been acquitted of such charges[f22]. This in theory leaves a remote possibility that the remaining two ñ Jamie Acourt and David Norris - could be charged with the murder, albeit that it must be the case that the extensive pre-trial publicity could make any prosecution unsafe. At the Main Committal Hearing in relation to the private prosecution, the magistrate considered some audio/video surveillance evidence and concluded that it could "Show that the defendants had a clear racist motive to kill Stephen Lawrence".
This video certainly provides evidence of overt racism. For example:
The video does not show Jamie Acourt, and as such it provides no evidence of any possible racial motive associated with him. While the video provides evidence of Davis Norrisís racist disposition, it was filmed a year after the killing of Stephen Lawrence and in no sense relates expressly to his death. Accordingly, given that the police obtained the video evidence surreptitiously, through the means of a covert operation[f23], there must be a strong possibility the video would be excluded under s.78 of the Police and Criminal Evidence Act 1978. The basis for exclusion being that to allow such evidence would have an adverse effect on the fairness of the proceedings. While the case of R v Khan[f24] raises the possibility that factors of trespass, damage and invasion of privacy, can be outweighed by other considerations ñ i.e. such as the gravity of the offence. There must be doubt that such judicial flexibility can extend beyond the reaches of the Human Rights Act 1998, since to allow use of the video raises the issue of an invasion of privacy under Article 8.
Sir William Macpherson, who, in his report, has also expressed doubts about the valid use of the video surveillance evidence. In the Macpherson Report, reference was made to the fact that:
|"The Magistrate was persuaded to admit these recordings at the
committal hearing, but we very much doubt whether they could have been put
before a jury at trial [f25]" Ö.
||"Certainly the tapes in themselves could have not been used to
prove the case [f26]" Ö.
||"Plainly the private prosecution team must have realised this,
since no evidence was tendered at trial after Mr Brookís evidence had
Assuming - as seems likely - that the video surveillance evidence were to be found as inadmissible, it must realistically be the case that there must be no existing firm evidence of racial motivation. Thus, not only must new evidence be needed to bring any prosecution for the killing of Stephen Lawrence, there must also be some new evidence (which could include an admission of motive) to justify any enhanced sentence due to racial motivation.
While it is accurate to reflect that Stephen Lawrence was a tragic victim of a racial incident, there is simply not enough reliable evidence to establish ñ beyond reasonable doubt ñ that Stephen Lawrence was killed in a racially motivated attack. To this extent, it is important to recognise that DS Davidson and the other investigating police officers may have a valid argument. Until new evidence is uncovered, we cannot be certain that Stephen was killed in a racially motivated attack.
2In the year ending 1997-8 the police recorded 13,878 racial incidents (Source ëStatistics on Race and the Criminal Justice Systemí published by the Home Office December 1998).
3The CPS Racial Incident Monitoring Scheme for the year ending 31st March 98, signified that out of 1506 prosecution cases identified by the CPS and Police as involving a racial element only 37% (557) were identified by the Police. This means that in an alarming 63% (949 cases), the racial element was exclusively identified by the CPS. One explanation given for this anomaly is that the police simply fail to tick an appropriate box on a referral form? Whatever the merit, or otherwise, of this explanation it is clear such differences give ammunition to the chorus of claims that some police are unsympathetic to racist crime. Out of these 1506 racial element cases, 182 were dropped or discontinued at Court - with admissible evidence of racial motivation presented in 85.25% of the cases taken to Court.
4This is reflected in the Prosecution Manual. See also the comments in the ëStephen Lawrence Inquiry, Home Secretaryís Action Planí, published March 1999 by the Home Office ñ with reference to recommendation 34.
5Duwayne Brooks was with Stephen Lawrence when he was attacked. However, he managed to run away and thus escape the gang who killed Stephen.
6See Para 1.3 of the Stephen Lawrence Inquiry Report, published HMSO ñ February 1999.
7Para 19.34 Ditto.
8Para 19.37 Ditto.
9Which the Home Secretary has agreed to implement because it is a simpler and clearer version of the existing definition used by ACPO (ëStephen Lawrence Inquiry, Home Secretaryís Action Planí, published March 1999 by the Home Office ñ with reference to recommendation 12).
10Such an approach could result in an undermining of confidence in the legal process. If the statistics show a significant number of racial incidents, with comparatively few prosecutions this may lead to an undermining of confidence in the judicial process.
11Account of Brian Cathcart - ëThe Case of Stephen Lawrenceí, published by Viking 1999. See also page 1 of the Stephen Lawrence Inquiry Report for a similar account.
12The reliability of these expressed words will be discussed later in this article.
13In the case of a person being found guilty of manslaughter or murder - and evidence of racism is evident - under s. 82 the Crime & Disorder Act 1998, a Judge is statutorily bound to consider if the offence was aggravated by racial hostility or motivated (wholly or partly) by hostility towards members of a racial group. If he so concludes, he must treat it as an aggravating feature that increases the seriousness of the offence (stating such in open court). By comparison, for offences such as assault, criminal damage, public order offences and harassment an additional racial charge (racial assault, harassment etc) can be brought by the CPS which enables a jury to determine the racial hostility beyond reasonable doubt and results in an enhanced sentencing tariff. This second additional racial charge is only applicable should the jury first determine that the defendant is guilty of the basic offence.
14The due process is broadly the same as now for manslaughter and murder cases, with the prosecution needing to establish the basic offence. The essential difference is that now a Judge can determine a racial element on the basis of racial hostility (rather than racial motive), with a Judge being statutorily bound to state such in open court.
15For a discussion on the difference between racial motivation and hostility see ëThe definition of a racial incidentí by Peter Jepson NLJ  1838.
16See s.29 of the Crime & Disorder Act 1998.
17See the comments of Lord Justice Taylor in R v Ribbans, Duggan and Ridley, The Times Law Reports 25 November1994, where he said "We take the view that it is perfectly proper for the court to deal with any offence of violence who has a proven racial element in it, in a way which makes clear that the aspect invests the offence with added gravity and therefore must be regarded as an aggravating feature."
18For an example of on appeal along these lines, see R v Leaney which is discussed later in this article.
19The Times, 11 April 1995.
20The Times Law Reports, 25 November 1994.
21Pursuant to section 36 of the Criminal Justice Act 1988.
22Neil Acourt, Luke Knight and Gary Dobson were tried and acquitted in the 1996 private prosecution.
23It is arguable there was a trespass to property in the manner of recording and placing of the video device.
24 QB 27.Court of Appeal (Criminal Division).
25Para 7.35 of the MacPherson Report, published HMSO February 1999.
26Para 7.37 Ditto.
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