Plans to create eight new offences relating to racial harassment and violence have prompted a mixed reaction. HOME Office plans to create new crimes of racially-motivated violence and racial harassment would seem at first glance to be a laudable attempt to crush the 400 or so racist incidents which occur in the UK each day.
Immigration minister Mike O'Brien spoke eloquently of the Government's wish to wipe out racist violence once and for all when he outlined the new offences at a recent meeting of the Society of Labour Lawyers and the Society of Black Lawyers.
Many in the audience welcomed the minister's words, but the proposals received surprisingly short shrift from others.
That the Government is well-intentioned and that legislation dealing with the problem is long overdue is not at issue. The question is: will the proposals actually work?
The new offences have been subject to a consultation process which was due to end on 31 October and are intended to be included in the forthcoming Crime and Disorder Bill.
The proposal is to create eight new statutory offences which correspond to existing crimes dealing with violence and harassment against the person, and which include a test that there was evidence of racial hostility when the offence was committed or that the motivation for committing the offence was racial hostility.
The courts will still be allowed to convict on the substantive offence if the racial element is unproven, and courts will impose higher penalties which reflect the racial aspect, according to the consultation paper.
As Society of Labour Lawyers chair Joel Ben Nathan pointed out, this means that a common assault which attracts a six-month jail sentence or a maximum £5,000 fine in the magistrates courts would, if the attack was racially motivated, be dealt with by the Crown court, attract a maximum two-year jail sentence or an unlimited fine.
This, according to Nathan, means that what was a summary offence with a 10 per cent chance of acquittal in the magistrates court will now be treated as a solemn offence in the Crown court where there is an 80 per cent chance of acquittal.
But the fiercest critic of the plans was Imran Khan, solicitor for the parents of murdered teenager Stephen Lawrence, who argued that the proposals “lack teeth”.
Khan even claimed that in a climate which automatically identifies black, not white as the aggressor, the creation of these new offences could see blacks getting more of a raw deal at the hands of the authorities.
While stressing that he welcomed any measure which attempted to combat the problem of racial harassment, Khan argued there was a danger police officers might use the legislation to get convictions by, for example, claiming they had racist taunts hurled at them during an arrest.
Khan said the nub of the problem was that “legislation is only as good as those who enforce it”, and a hostile police officer or an apathetic judge renders the legislation useless.
The new offences give statutory effect to the 1995 Ribbans judgment, in which Lord Chief Justice Taylor ruled that a proven racial element should be an aggravating factor when sentencing. While the maximum sentence applicable has been increased it is still at the discretion of the individual judge whether or not to apply it.
Vera Baird, a barrister member of the Society of Labour Lawyers, suggested that sentencing should be made mandatory under the provisions, taking discretion away from the hands of the judiciary.
Khan said the Government had missed “the source” of racism and should have looked at the problem “across the board”, in terms of education, welfare, and housing.
Both Khan and Peter Herbert, Black Lawyers Society chair, argued for the abolition of the Police Complaints Authority, the record of which Khan described as “abysmal” as it was “police officers investigating police officers”. Herbert also argued for better training of the judiciary, in which he claimed there is a “hard core for whom racism is a dirty word”.
According to O'Brien, the Government has three aims: firstly, to enact the legislation; secondly, to learn lessons from the way racial incidents have been dealt with – such as the judicial inquiry into the Stephen Lawrence murder- and, thirdly, to “create a new atmosphere” of tolerance, which he explained as “a multi-agency” approach to dealing with incidents.
Whether these rather vague promises can be fulfilled remains to be seen.
Both Herbert and Khan at least welcome the Govern-ment's intentions. The Home Office has now launched a campaign to recruit more black and Asian police officers and announced last week it was to establish a working group to tackle racial discrimination in the force.