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John Fitzpatrick on the dangerous implications behind the proposal to introduce a new offence of racially motivated violence

Jack Straw's thought crime

Jack Straw's proposal to introduce an offence of racially motivated violence brought the house down at the New Labour conference. The home secretary also proposed that racial motivation will 'aggravate' existing offences so that stiffer sentences can be imposed. In one sense the acclaim is understandable. Most people feel that an assault carried out because the victim is black is particularly odious. The sickening death of Stephen Lawrence, invoked by Straw and many others, looms large in the collective memory, and rightly so. 'Black bastard' they cried before the knife went in.

When emotions are high, however, reason should be vigilant. Reason should warn us that the new offence will reinforce trends in law and society which should be worrying to us all.

We might note at the outset that so far as Stephen Lawrence is concerned it would be a good start if his killers were actually caught. If convicted they would face a mandatory life sentence. The judge could even recommend that they never be released. How is such a case of any relevance to Straw's proposal?

God, we are told, asks us to be pure in thought, word and deed. The state, in the past, has been less exacting. But for some time there has been an authoritarian shift in the focus of the criminal law from deed to word to thought. A crime which punishes motivation is a further step down that road and should send a chill down our collective spine.

That might sound odd. After all, the detectives are always asking 'Who had a motive?'. Many people claim that the present legal system, in deciding whether to convict, routinely takes into account the reason why somebody committed an offence. This is quite mistaken.

The determination of criminal liability essentially concentrates upon an act and upon whether the defendant intentionally, recklessly or knowingly committed it. (We can leave aside minor 'strict liability' offences.) It is easy to confuse that second element with motive. As Lord Hailsham observed in Hyam v DPP in 1975, 'motive is entirely distinct from intention or purpose. It is the emotion which gives rise to the intention and it is the latter and not the former which converts the actus reus [the act] into a criminal act'.

As the detectives often find, many suspects had a motive but chose not to act on it. They are not convicted for having a motive. Nor is the person who did choose to act convicted for the motive. He is convicted for the act, intentionally committed.

It has long been an axiom of the law that a bad motive is no more reason for convicting a person of a crime than a good motive is an excuse for acquitting him. A murder may be motivated by anger, misogyny, political conviction or mercy, but all the court wants to know, in order to convict, is whether there was a murder and whether it was committed intentionally by the defendant. One hesitates to cite both Lord Hailsham and Margaret Thatcher, but there was a certain point to her claim that in law a crime is a crime is a crime, and it doesn't matter why you did it.

Sentencing of course is a different matter. In convicting, the law purports to treat every person in the same way, indifferent to who they are or why they did it. Afterwards, the law is dealing with a guilty person. The nature and circumstances of the offence, motivation, the defendant's character, police records and social enquiry reports can all be taken into account so that mercy might mitigate retribution.

How else can justice be done? The circumstances of every offence and every offender are so different that parliament can only set a general framework of tariffs. It leaves it to the judges to fit the sentence to the crime. Even in exceptional cases like murder where mandatory sentences are legislated, the judicial discretion pops in the back door through the 'recommendation' on when the person convicted should be released. It should be noted here that with maximum sentences of five years for 'actual bodily harm' and life for 'wounding with intent', the judges have plenty of scope already to impose the punishment they feel is appropriate for violent crimes.

Jack Straw's first proposal to introduce motivation into the process is not about sentencing. It will create a new crime, and a key part of that crime will be the motivation for it. Even his second proposal will require the court to make a finding about the defendant's motives. Then, like Michael Howard before him, he wishes to curb judicial discretion on sentencing

Why does the law at present disregard motive in the crucial matter of criminal liability? Because in a free society the law punishes acts not thoughts - what you do, not what you think, believe or want. Furthermore, the premium we place upon freedom requires us to prohibit only those acts which are harmful.

There are many types of harm recognised by the criminal law - physical harm, mental harm, harm to the property of another, harm to the government or the public, harm to moral standards. In recent years, however, the categories of mental harm have been much expanded. In 1994, for example, the court of appeal held clearly for the first time that the phrase 'actual bodily harm' in the Offences Against the People Act 1861 could include 'psychiatric injury'.

In 1936 the Public Order Act banned 'threatening, abusive or insulting words or behaviour' which were 'might provoke' a breach of the peace. In 1986 'breach of the peace' was replaced by 'harassment, alarm or distress'. In 1997 the Protection from Harassment Act created a further offence of 'a course of conduct' (including speech) amounting to harassment of another. Harassment is undefined save that it includes 'alarming' somebody or causing them 'distress'. The harm originally centred on the disruption of the public peace by threats or abuse, now the harm is distress to one person caused by just about anything.

One effect of this of course is to make words as well as deeds much more susceptible of prosecution. Next time you are arguing with somebody and they say 'don't hassle me' or 'I find that really offensive' you'd better watch out.

The law also categorises as harmful those acts which persuade or encourage another to commit a harmful act. So long as there is a crime in the first place it is also a crime to incite it.

But in the field of race relations it is also a crime to incite somebody to do something which is perfectly lawful - to hate other people on account of their race. You are entitled, in a free society, to hate who you like, whether they be black, Arsenal fans or Jack Straw. However since 1965, with several strengthening amendments up to 1994, it has been a crime to incite one type of hate.

This exception has been fitted into the public order legislation. A person may not use 'threatening, abusive or insulting words or behaviour' which are likely to stir up racial hatred. The implication is that such words or behaviour would lead to a breach of the peace. But there is already a law about words and behaviour which does that. No, behind the exception lie three very dangerous assumptions - people are not capable of withstanding certain ideas, are not able to think or believe something without acting violently upon it, and are simply not entitled to have one type of belief. The new proposal to criminalise racial motivation now gives direct effect to that last idea. It is a thought crime.

The authorities already seem keener to punish thoughts rather than acts. The Crown Prosecution Service in consultation with the previous attorney general prosecuted the racist rag Stormer earlier this year for incitement to racial hatred, after it published the names and addresses of targets, gave detailed instructions on how to make bombs and urged readers to get on with it. So why weren't they prosecuted for incitement to violence? Even though that form of incitement could have received a much heavier penalty, the authorities apparently preferred to send a message that the state will decide what we can and cannot think.

In striking at the distinction between a motive and an intentional act, Jack Straw strikes at the freedom and responsibility which individuals should have to choose and control what they think. In doing so he strikes at the idea of the moral autonomy of the individual which lies at the heart of our society. The cant phrase in this discussion is 'it will lead to', as if people are automatons waiting to be activated by a lurid speech before marching zombie-like to war. In any event if we were really to accept, which we should not, that encouragement of a particular view should be a crime because it will 'lead to' violence, who should we charge? Those who publish nasty little news-sheets which nobody reads or those who talk of rivers of blood, swamping, the need for immigration controls and the perils of multiculturalism?

In reality, the roots of racist violence, like any violence lie deep. Neither is violence, as is insistently implied, always irrational. It is generated by real conflicts. It is those conflicts which we have to address and we will only be able to do so successfully from the conditions of the fullest possible freedom.

John Fitzpatrick is director of the Kent Law Clinic and lecturer in law at the University of Kent

Reproduced from LM issue 105, November 1997

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