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The Macpherson report in the dock

John Fitzpatrick finds that the legal recommendations of the Stephen Lawrence inquiry report have some dangerous implications for us all

The Stephen Lawrence inquiry has undoubtedly dealt a welcome blow to the racist treatment of minority ethnic communities by the police and the criminal justice system. There is much, however, that is unwelcome and dangerous in Sir William Macpherson's report.

The most striking thing about his 70 recommendations is how they simply use the Lawrence case to further well-worn trends. The proposals relating to racist language and double jeopardy are good examples.

The idea of prosecuting racist language and behaviour even in private follows hard on the Crime and Disorder Act 1998 which criminalised racially motivated assaults. The Public Order Act 1986 made it an offence to stir up racial hatred, and the Criminal Justice and Public Order Act 1994 made publication of racially inflammatory material an arrestable offence. The Football (Offences) Act 1991 made indecent or racist chanting an offence, and further proposals on this score are being introduced.

These provisions should be seen in the context of offences which generally seek to protect people from offensive language and behaviour. Originally directed at preserving public order, they now also protect individuals. The Public Order Act 1936 made threatening, abusive or insulting words or behaviour an offence if that was likely to cause a breach of the peace. The Public Order Act 1986 made such conduct an arrestable offence if it was likely to cause harassment, alarm or distress to somebody and was continued after a police warning. The Criminal Justice and Public Order Act 1994 simply made it an arrestable offence intentionally to cause harassment, alarm or distress.

The Protection from Harassment Act 1997 made it an offence to harass another person, defined as conduct on more than one occasion which, for example, causes alarm or distress. The Crime and Disorder Act 1998 made it possible to obtain a court order to prevent a person from continuing to cause harassment, alarm or distress to one or more persons of a different household.

This absurd barrage of laws promotes two dangerous ideas. First, our fellow citizens are so impressionable and unreliable that we must insist upon them being sheltered from all manner of incitement and opinion; and secondly, individuals and society have the right not to be offended by the sort of behaviour which falls short of physical violence and was not previously deemed criminal.

Leaving aside their implications for freedom of expression, a major problem with these laws is their focus on what is deemed to be our weakness - on our alleged inability to resist inappropriate inducements and incitements, and our inability to cope with the verbal abuse of others. Our shortcomings are further emphasised by the psychologising of racism in the Macpherson report. We are all, by implication, unconscious and unwitting racists. We just can't help ourselves. I do not deny the grim reality of racial discrimination and violence, or indeed the problems that antisocial behaviour can cause. I do deny that this is the way to understand or deal with these issues.

The law is being used here to send messages and to correct attitudes, reaching right into homes and minds in the process. It is hard to see this sort of social engineering actually preventing racial violence. Indeed, among the relatively small number of people involved it might well provoke it. It may be more successful, however, in establishing official norms of acceptable behaviour against which scapegoats can be broken, and in establishing a sullen conformity across society in which both the vigour and the parameters of debate will be compromised.

The prompt and competent enforcement of the traditional criminal law would go some way towards addressing the grievance felt in respect of racial attacks. There has never been any shortage of laws under which those who cause genuine problems can be dealt with. In this context a new law should always be viewed with the same sort of suspicion that we should continue to reserve for police practise. We should certainly all assume responsibility for tackling racism in society - but that will hardly be assisted by laws which simply reinforce a widespread sense of vulnerability, isolation and dependence on the police and judges.

Macpherson recommends that consideration be given to allowing the Court of Appeal the power to permit a fresh prosecution after an acquittal where fresh and viable evidence is presented. At present the rule against double jeopardy, or the plea of autrefois acquit or autrefois convict, means that nobody can be tried twice for the same offence.

The rule has always been narrowly applied, so that for example it does not preclude the prosecution of a person for another offence arising out of the same facts. The leading case in modern times is Connelly v DPP (1964) in which the House of Lords allowed the conviction of a man for robbery even though he had previously been acquitted of a murder which had been committed during the robbery. No new facts were alleged or new evidence called. It should be added (with particular relevance to the Lawrence case) that a person once acquitted for murder cannot be tried for manslaughter. This is because it was open to the jury at the first trial to convict for the lesser offence, had they wished to do so, even though that was not charged on the original indictment. In such cases the lesser offence is not treated as a separate offence.

Narrow as it may be, the age-old rule against double jeopardy is an important aspect of a broader doctrine which allows the courts to prevent any abuse of process by the prosecution. The rule obviously protects individuals from the harassment of repeated prosecutions for one crime, preventing the authorities from revisiting the court until they get the result they want, or indeed until they tire of making life hell for somebody. This prospect now looms.

The rule also operates to ensure that the prosecution only pursue those cases where they are confident that they have obtained sufficient evidence to secure a conviction. They must put up or shut up - or obtain further evidence. If the prosecution know they can have further bites at the cherry, the danger must be that suspects will face premature and speculative visits to the court.

This proposal fits into the marked trend in the criminal process to relax the procedural safeguards which defendants have enjoyed. The severe qualification of the right to silence is the most obvious example. The right to jury trial has also been whittled away, and the present government is considering drastic damage to it. In all serious cases defendants now have to make advance disclosure of the nature of their defence. In rape trials we have seen severe restrictions on cross-examination rights, and more are promised.

Double jeopardy itself has already been jeopardised. Since 1996 a person who has been acquitted of an offence can be tried again if they have been convicted of interfering with a juror or a witness in the proceedings which led to the acquittal. It sounds reasonable, but as many pointed out at the time, why not simply provide for an appropriate sentence on the interference conviction?

Behind these developments lies a shift of emphasis towards the interests of victims, and away from the procedures which were elaborated to ensure fairness to defendants. This has not only contributed to the relaxing of safeguards, as discussed above, it has also led to the victim being given a more prominent role in the trial process. The previous government's Victims' Charter encouraged the use of victims' statements in the pre-sentence reports which are considered by the judge. Another of Macpherson's proposals, to allow victims or victims' families to become 'civil parties' in criminal proceedings to ensure access to the case papers, promises to bring the victims or their families further into the proceedings.

It is clearly right that witnesses, complainants, victims and their families should be treated properly in the criminal process, and that they should be fully informed of developments. Often of course the victim will be a key witness. But the wider elevation of victimhood in society, and the consequent enhancement of the status of the victim in criminal proceedings, has serious implications for a fair trial. At one obvious level that is manifest in the increasingly common indignation which witnesses express at being subjected to rigorous cross-examination: 'Who's on trial here?'

There is however much more at issue. The perception that defendants are being unjustly acquitted or too leniently sentenced is also being manipulated. The answer to unfair acquittals is not to lower the standards at trial, but to raise the standards of investigation and prosecution. The idea that society will be better protected by making it easier to convict those people that the police arrest is wholly fallacious. The more prominent the role of the victim (or their families) in the process, however, the higher the risk that emotion will upset the cool, measured consideration of the evidence which is crucial to fairness.

As the judge put it when bringing to a close the private prosecution of three of the Lawrence case suspects, 'Adding one injustice to another does not cure the first injustice to the Lawrence family'. This does not mean that we cannot take a view about who is guilty. It does mean that they should not be sent to jail without a fair trial, just because we yearn for justice for the victims. That is wrong, and it could be you.

Nor is it healthy to allow the victim too prominent a role even after conviction. In a civilised society retribution is exercised rationally by the community as a whole and is balanced with other considerations - the need to protect the public, to deter other offenders and of course to rehabilitate the victim. The instinct for revenge is natural, but it is just that, an instinct, which should be restrained by the reasoned punishment of the court. Furthermore, while vindicating a sense of justice is important, encouraging victims to focus on their grievances is a very destructive institutional response.

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

Reproduced from LM issue 119, April 1999

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