The definition of a racial incident.

Article by Dr Peter Jepson-

Published in the New Law Journal , 11 December 1998 - Pages 1838/9.

E-mail: law@peterjepson.com

The Crime and Disorder Act, with its proposals to tackle racist crime, was given Royal Assent on the 31st July 98. For this legislation to succeed it is vitally important that racist crime is first correctly identified by the police, and then prosecuted by the Crown Prosecution Service. A critical flaw in the process is that the police definition of a racial incident is inconsistent with this new legislation. Indeed, one of the consequences of this flaw is that incidents of racially hostile crime could fail to be appropriately prosecuted.

The Crime and Disorder Act 1998.

Part II, section 28(1) of the Crime and Disorder Act 1998 specifies that an offence is racially-aggravated if:

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" (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

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(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" .

This Crime & Disorder legislation requires 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 John Smith 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. With s.82(2) of the Crime and Disorder Act 1998 requiring a court, in considering the seriousness of any offence, to treat racial aggravation as an aggravating factor that increases the seriousness of the offence.

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 the Crown Prosecution Service prosecutes when the evidence so justifies.

Identifying racist crime.

A key to both of these is that the crime is correctly identified as racist at the investigative stage. Since 1986 the police forces in England and Wales have been working to what is known as the ACPO[Footnote 1 [f1]] 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 which includes an allegation of racial motivation made by any person".

This definition is wide and subjective in nature so as to take into account any claims of racism made by a complainant. The problem is that motive is often impossible to determine objectively and accurately - since it usually involves the reading of the mind of a perpetrator. To this extent, anything that can bring some objectivity to the ACPO definition should be welcomed. Indeed, in light of the Crime and Disorder Act 1998, there is a need to bring about changes that reflect the need to establish not racial motivation - but racial hostility.

Such a need for change can be seen from a hypothetical crime scene which police officers may regularly come across. Imagine that John Smith sees Muhammad in a sexual embrace with his wife. John Smith, a white indigenous man, is angry and jealous so he loses his temper and - in order to hurt him - he punches Muhammad saying, " take that you black bastard". On arriving at the scene, the police on being told these facts are likely to deduce that the motivation for the common assault is one of jealousy. Indeed, the incident does not fulfil the ACPO definition, of a racial incident, since it was not directly motivated by race and displays all the hallmarks of a domestic incident.

However, on closer scrutiny of the facts, it is clear that a common assault may have been committed - with racial hostility being displayed at the time of, or immediately before or after, the basic offence. Thus, the incident should be classified as 'racial' since it fulfils the requirements of Section 28(1) of the Crime and Disorder Act 1998 - with John Smith clearly demonstrating racial hostility at the time of the basic offence. Thus, the courts could determine - assuming a jury so finds - racial-aggravated common assault, with John Smith facing up to 2 years imprisonment as compared to up to 6 months for the basic offence of common assault.

This hypothetical illustration is strengthened from academic arguments stemming from the facts in the case of R v Cole (and others)[f2]. 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[f3] 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[f4] - but find that racial hostility was evident at the time of the attack[f5]. 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.

Revising the ACPO definition.

What these two examples highlight is that the ACPO definition of a racial incident does need to be modified. No longer is it exclusively necessary for the police to look for a racial motive - with any motive under s.28(1)(b) of the Crime and Disorder Act 1998 being linked anyway to racial hostility. Indeed, the law now calls upon the police to look for objective factors that may indicate racial hostility at the time of any criminal offence.

A new ACPO definition of a racial incident is needed which ensures that police officers look for and identify objective factors that relate to racial hostility. This new definition may need to be accompanied by specific training being given to police officers so that they can readily identify and record objective factors that may help provide evidence of racial hostility. A few examples of which are to carefully record any racist words used at, or near to, the time of the basic offence. Other factors could be whether the accused was committing a racist attack along with other identifiable racists.

It is possible that the Stephen Lawrence Public Inquiry could produce a recommendation that suggests a revision to the ACPO definition of a racial incident. However, given that the Crime and Disorder Act 1998 is now law, it seems the need for such a revision is urgent.

In conclusion.

As I have argued within this article, the success of the government's approach to tackling militant racism rests upon the identification and prosecution of racist crime. The foundations of this legislation are however resting upon an ACPO definition, of a racial incident, which is 12 years old and failing to meet the requirements of section 28 of the Crime and Disorder Act 1998. To this end, an urgent review of this ACPO definition is needed. Such a review needs to reflect the need for establishing evidence of racial hostility as opposed to the current requirements to look for racial motivation. 

26 October 1998.

 Footnotes.

bullet1 Association of Chief Police Officers.
bullet2 [1993] Crim LR 300.
bullet3 '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.
bullet4 Under s.28(1)(b) of the Crime and Disorder Act 1998.
bullet5 Under s.28(1)(a).

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