The race for justice

Paula Rohan looks at the handling of racially motivated crime and asks whether legislation putting the onus on intent to prove prejudice is the right way to deal with the problem

This month's local council elections were marked by Labour holding its own in the polls, the Hartlepool football team monkey mascot clinching the mayorship, and postal votes swaying voter apathy.

But what dominated the news was the British National Party (BNP) winning three seats in Burnley, Lancashire.

Given the media coverage, one might expect local solicitors to spend much of their time dealing with the victims and perpetrators of racist attacks.

However, Elaine Ennis, partner in Burnley firm Farnworth & Watson - who held the local Law Society presidency during last year's race riots in the area - says this is far from the truth.

'The election result came as quite a shock because the majority of people find race relations in the area to be quite good,' she says.

'The rioting and BNP winning three seats doesn't really represent what it is like here; it's not a hotbed of racial tension.'

The BNP victory was also a shock to the government, which has done its best to instigate a post-Stephen Lawrence shift in race laws.

The cornerstone of this was the Crime and Disorder Act 1998, which created a specific range of racially motivated crimes, including assaults, criminal damage, public order offences and harassment.

However, many argue that making racism a part of the offence itself - rather than taking it into account when sentencing - has not done anyone any favours, least of all the victims.

Arun Kundnani, a researcher at the Institute of Race Relations, argues that the government may have had the right intentions, but the Act has been far from a success.

'No one lobbied for this because the issue was never that sentences were too low - it was that these cases never got to court because the police did not investigate them properly, or because the Crown Prosecution Service (CPS) kept dropping them,' he explains.

'Now, you have to prove that the violence took place and that the criminal motivation was racism, and you have to prove both parts to a criminal standard.

This is tough because - as you can imagine - people don't stand there and announce that they are racist before they hit someone.'

Indeed, a report earlier this month by the CPS inspectorate into casework with an ethnic minority dimension found that prosecutors did not always have enough information - or appreciate that they were underinformed - when taking decisions on cases resulting from racist incidents.

Rodney Warren, chairman of both the Criminal Law Solicitors Association and the Law Society's access to justice committee, says the Act has created uncertainty for lawyers who are trying to second-guess which charges will be brought.

In one case he dealt with, the victim was called a 'foreign git' in the presence of the police, who ignored the racist element.

Yet in other cases, there has been no evidence of racism but the police have pushed for it to be treated as a racist attack 'with a great deal of vigour'.

'They are either so enthusiastic or they ignore it completely,' Mr Warren says.

'They find it hard to strike a happy balance.'

Mr Warren also contends that what is most important - that a crime has been committed - has now been overshadowed by the race issue.

'Because this detracts from the offence, the victim, as well as the accused, is dissatisfied,' he says.

'What people are more concerned about is that they have been hit in the mouth - their skin colour is a secondary issue because they have lived with it all their lives.'

Neil Addison, a barrister at New Bailey chambers in Liverpool and an expert in harassment cases, agrees that race is now the dominant factor.

He cites as an example R v White [2001] 1 WLR 1352 last year, following an incident in which an Afro-Caribbean man had called a woman of the same race a 'stupid African bitch'.

'Clearly, he was guilty of a public order offence,' Mr Addison says.

'But equally clearly - since he and his victim were of the same race - he could hardly be guilty of hostility to her race, yet he has a conviction which brands him a racist.'

Mr Addison says there also needs to be a change in the way the law is used, so that racial harassment is looked at as a long-term problem rather than being dealt with on a reactive basis.

'At present, in my view, we have the worst of both worlds.

We have racially aggravated offences which are being used in trivial cases, but which are not being used properly to deal with serious racial harassment.'

One sector that is charged with looking at the on-going effects of harassment is local authorities, which are under a duty to protect their tenants from nuisance neighbours.

Narinder Mathaiu, senior enforcement officer in the anti-social behaviour unit at Leeds City Council, says that since the unit was set up last month, it has won anti-social behaviour orders (ASBOs) and an ex parte injunction against a troublesome racist tenant.

It also has an option to serve notices seeking possession on the grounds of nuisance or harassment.

However, Ms Mathaiu says that although the law has given councils much-needed powers to protect their tenants, it is disheartening when an order is breached and then no penalties are imposed or arrests made, although Leeds is making progress on this.

'Specialist teams and agencies often have a more sympathetic understanding of these types of crimes because we are on the front line and see how they can devastate lives and communities,' she says.

'We are now working with the police to try and make things more pro-active, bringing it right down to constables out patrolling the streets, and we have set up a lay panel to scrutinise race crimes and identify with the police those cases where perhaps more could be done.'

Another area which commentators believe needs tightening is the protection afforded to people on the grounds of religious beliefs, which is increasingly merging with race issues.

Makbool Javaid, employment partner at City firm DLA and previously a legal officer at the Commission for Racial Equality, says there has been a growing need since last year for comprehensive legislation dealing with the matter.

'After 11 September, the focus of prejudice shifted to Muslims and there is no legislation that really protects members of that community,' he explains.

'These days, a bloke with a beard will find it difficult to rent a hotel room, will experience trouble at airports, get abused by his neighbours.

This means that everything from crime to housing, harassment laws, and provision of goods and services is lacking.'

Mr Javaid maintains that the law also needs to be harsher on public order offences such as inciting racial hatred, because the media is partly to blame.

'People see this guy and think he is dressed up like the Taliban, and the prejudice stoked up by the media manifests itself in his everyday life.

You see appalling headlines like "Mad Mullah", but can you imagine the outrage if they said: "Mad black man"?'

Korieh Duodu, a barrister at London-based media law firm David Price Solicitors & Advocates, says that in supermodel Naomi Campbell's privacy case against The Mirror, implied racism in the description of her as a 'chocolate soldier' may have been responsible for 1,000 of her 3,500 award.

But he adds that it is growing more difficult to bring the media to heel on public order grounds.

'I would suggest that in an era when the effect of any order preventing publication is likely to impinge on freedom of expression, there will need to be compelling reasons given before any material is prevented from broadcast or publication,' he says.

'The preventing authorities are perhaps faced with a higher hurdle than was the case prior to the enactment of the Human Rights Act 1998.'

Publicising the new Race Relations Amendment Act 2000 - aimed at eliminating workplace discrimination - Home Office minister Angela Eagle declared last month that the government was committed to encouraging 'a truly diverse society where people from different ethnic backgrounds can live and work together'.

However, in the light of the BNP's success, Rodney Warren predicts trouble ahead in the criminal arena if the law is used as a tool for achieving a racial utopia.

'However much we don't like it, there is obviously an undercurrent of discontent,' he says.

'But we need to recognise this is a society issue and not a police issue, and problems arise when you try to treat criminally what is really a sociological problem.'