InternationalJournal of the Sociology of Law (1999) 27, 103^118Article No. ijsl.1999.0084, available online at http://www.idealibrary.com on

The Significance and Futureof Racially Motivated Crime

HOWARDCOHENTrinity Hall, Cambridge, U.K.

Despite the growing interest in crimes of a racially motivated nature, there is lit-tle academic fascination in the reasons why such crimes are in any way `worse'than other `parallel' crimes. It is argued that the harms caused justify enhancedpunishment and sti¡er penalties against perpetrators. Furthermore, there arecomplex issues bound up in the phrase `racially motivated', and indeed `motiva-tion', which need to be addressed in order to achieve conceptual clarity. Finally,the relevant proposals in the Crime and Disorder Act 1998 are looked at to seewhether they are likely to exacerbate the problem or instead, ameliorate it.

Measuring the Problem of Racially Motivated Crime

It is widely acknowledged that members of ethnic groups are more likely thanwhites to be the victims of crime. Fitzgerald and Hale (1996) revealed that,although ethnic minorities are more likely to be victims than whites, the ¢gures£uctuate between di¡erent minority groups and di¡erent o¡ences. Thus, whilePakistanis are most at risk from vandalism and threats, Afro-Caribbeans aremore likely to su¡er assault andacquisitive crime.The1992 British Crime Survey(Mayhew, Aye-Maung and Mirrlees-Black 1992) put the number of reported ra-cially motivated crimes at 50,000, which compares with just 8000 crimes re-corded by the police.

As one might expect, most o¡ences committed against racial minoritiesare not perceived to be racially motivated. Fitzgerald and Hale (1996) show thatonly 14 percent of Afro-Caribbeans and 18 percent of Indians thought thatthe o¡ences committed against them were motivated by racial hostility,while more recent ¢gures put the joint ¢gure for blacks and Asians at 15 percent(Percy 1998). Contextualising these results, 4 percent of Afro-Caribbeans and 5percent of Indians who responded to the BCSwere victims of racially motivatedo¡ences during the previous year, compared to 0�5 percent of whites. There isan obvious discrepancy here, with minority groups being at a far higher risk of

0194-6595/99/ 010103+16 $30�00/0 # 1999 Academic Press

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victimisation despitemuch of the di¡erence being attributable to socio-economicfactors [1].

These percentages must be translated into ¢gures to adequately quantify thisnumber of o¡ences. The 1992 BCS stipulated that of the 17 million incidents ofcriminal victimisation in 1991, 5 percent of them were against racial minorities.Of these,18 percent were considered by respondents to have been racially moti-vated, leaving a ¢gure of 130,000. Findings from the1996 BCS (Percy1998) show143,000. There is no evidence of a signi¢cant change in the overall numberof racially motivated crimes since 1991 though, because of £uctuations in theintervening years.

In comparison with these results, police statistics show ¢gures which areconsistently and signi¢cantly lower. Thus, despite the rise between 1989 and1996 from 4383 to 12,199 o¡ences, a rise of over 275 percent (Human RightsWatch 1997), these statistics still trail the BCS results. Much of this di¡erence isexplained both by the failure of many victims to report incidents to the police,fearing either that they will not be taken seriously, or that the incident is tootrivial to report, and by police non-recording.

Why are Racially Motivated Crimes any `Worse' than `Parallel'Crimes?

Despite calls for legislation countering racially motivated crimes, and debateconcerning provisions and de¢nitions contained therein, it is seldom asked whylaws against racist crimes should exist at all. There is no overriding reason ex-plaining the desirability of wider coverage of the law in these areas, rather anum-ber of types of reasons. These are all predicated on the assumption that raciallymotivated crimes are `worse' than parallel crimes [2] because racist motivationis `worse' than other criminal motivations (Crocker 1992/3).Whether or not thisis true, what is vital is that the motivation of the o¡ender is ` salient and determi-native'' ( Jacobs & Potter 1997), quite separate from any harm caused to the vic-tim. Qualitative di¡erences exist between parallel crimes and racially motivatedcrimes in terms of harms caused, and this lays at the heart of any extra legislationand enhanced punishment.

The harms caused by racially motivated crimes often provide the political im-petus for changes in the law. Proponents of hate crime laws in the United Statesemphasise the extra injuries caused as a major argument in their favour (Green-awalt 1992/3; Marovitz 1993), and it seems likely that it is only due to ever-morerevealing statistics concerning the frequency and consequences of racist violenceand harassment, that the relevant provisions in the Crime andDisorderAct1998were introduced.

Perhaps the most obvious and concentrated injuries in£icted in a raciallymotivated attack are those su¡eredby the victims themselves.This is true of bothphysical and psychological harms, and it has been argued that racist crimes have

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this harsher e¡ect because race is an immutable characteristic, and thereforemembers of ethnicminorities cannot reduce their chances of victimisation (Gell-man 1991). In terms of psychological damage, victims of racist crimes have beensaid to su¡er from humiliation, isolation and self-hatred, leading to deteriorationin inter-group dealings between victims and their ethnic groups, together withlong-term emotional e¡ects (Burgess & Holstrom 1974; Skogan & Max¢eld1981; Sank & Caplan1991).

A number of studies looking at the increased harms caused by racially moti-vated crimes have pointed to similar conclusions. In 1986, the National InstituteAgainst Prejudice and Violence (NIAPV) conducted a pilot study of 72 hatecrime victims in 7 states of America, and concluded that: . . . There were moresymptoms and a greater e¡ect on the individual when the motivation was preju-dice'' (Weiss 1991: 100). Similary, the American Psychological AssociationTaskForce on theVictims of Crime andViolence (1984) found that minority victimsof di¡erent crimes showed many of the same reactions, i.e. anger and fear, andnoted an increase in psychosomatic symptoms. In sum, therefore, it is fair to ar-gue that the extra harms caused to victims of racially motivated crimes justifyadditional legislation and enhanced penalties.

It is important to note, however, that harms caused by racist crimes extendbeyond those endured by the victim. The target minority group of the victimwill perceive the crime as an attack on itself directly, causing all members ofthe community to feel threatened and intimidated (Lawrence 1994).The natureof the motivation also triggers the history and social context of prejudice andprejudicial violence su¡ered by the victim and his group. Thus, racist crimesspread fear amongst not only those nearest to the victim, but also those whoshare only racial characteristics with him.This in itself makes such crimes moreharmful than parallel crimes, and can have disastrous consequences when thetarget community's angry response is then directed at a particular suspect'sgroup.

Another justi¢cation for extra legislation is that racist crime is a type of politi-cal crime, and that in the same way that political terrorists may wish to frightenthose they are trying to in£uence, so too racist perpetrators want to strike fearinto those a¡ected, directly and indirectly, by their actions.The terroristic natureof racist violence, for example targeting victims arbitrarily due to their appear-ance, means that special laws are needed against it, much as they are neededagainst terrorism per se, because such quasi-organised and ideologically-basedcriminal activity needs to be acted against with enhanced powers if an adequateresponse is to be found. Indeed, it is the very fact that, ¢guratively, there is alwaysmore than one perpetrator in a racist crime, together with the ideological basis ofracism, that requires the extra strength of speci¢c laws.

Lastly, it is claimed that raciallymotivated crime impacts on society as awhole(Crocker1992/3). As well as being socially destabilising, racist crime can also dis-courage those sympathetic tominorities, and especially victims, for fear of reper-cussions. Lawrence (1994) points to the violation of the egalitarian ideal caused

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when crimes are committed on a racially motivated basis. Gellman (1991) isopposed to creating legislation on these grounds, with sturdy reasoning. She isright to argue that laws limiting thought prevent the broadest possible range ofideas and expression being available in the marketplace. Furthermore, the as-sumption that the government has an accurate understanding of what ideas andexpression are in fact harmful is a dangerous one, as there are many possiblebiases and types of behaviour which could be included in any legislation. In spiteof these truths, the obvious alternative of doing nothing is a bleak prospect in-deed for the many victims of racist crimes, and it is surely better to do somethingand possibly succeed than do nothing and undoubtedly fail. The serious natureand increasing numbers of racist attacks and harassment in this country call forstrong action to be taken at the highest levels.

Little attention hasbeenpaid in the past to the nature andcalculation of harm,and this is surprising because the case for harmas a key component in assessing acrime's seriousness is at least as strong as that for culpability. If, after calculatingand comparing di¡erent types of harm, the nature of harms in£icted by racistcrimes are greater than those of parallel crimes then this would further justifyextra legislation to counter the rising tide of racially motivated crime. The ¢rstmethod of calculation of harm is an ex ante method. Using this technique, it ispossible to rank the harms that result fromvarious crimes in terms of the relativerisk preferences of the rational person. A rough ranking of groups of crimes isthen achieved and, depending on the results, one type of crime could be seen tobemore harmful than another. Lawrence (1994) concludes that a rational personwould rather live through a parallel crime than racist crime, because of the dan-ger of psychological injury and distress caused by the latter. I believe that thisassessment is correct, and that where the objective person would `prefer' to be avictim of one crime over another, reliable statements about calculations of harmcan be made, which then justify the implementation of laws and penalties tocounterbalance those increased harms.

The other way to calculate harm is by an ex postmethod, which focuses on thenature of the resulting harm, and ranks crimes according to what the victim haslost.Von Hirsch andJareborg (1991) have proposed measuring harm in this wayby reference to a`Living Standard Analysis', inwhich harmbecomes a far-reach-ing concept drawing upon our assessment of what it means to live a good life. Bylookingat the severity of a crime's invasion on avictim's `personal interest' (at oneend of the scale are injuries to the most basic issues of standard of living, and atthe other are luxuries), and types of interest that can be violated by crime, it ispossible to assess various degrees of harm, and to consider what kinds of interestsare a¡ected. Although racially motivated crimes and parallel crimes mayequally injure a victim physically and in terms of possessions, there is a disparitybetween the two in relation to personal autonomyand fear, with the former indu-cing wider fear and intimidation amongst the wider target group and thecommunity as a whole. As a result, using the ex post method, it can be seen thatracially motivated crimes cause greater harm to a society's collective living

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standard than parallel crimes do, and this is yet another way of illustrating theneed for supplementary legislation and enhanced penalties.

The need for action against racist attacks and harassment, and the justi¢ca-tions above explaining why racially motivated crimes are `worse' than parallelcrimes, provide adequate ammunition for legislative change. However, thereare those who argue that the law is not the best weapon to use against the scourgeof racist violence, and that it provides, atbest, a symbolic opportunity for those inpower to make gestures (Gellmann 1991). Gellman (1991) also holds that non-criminal approaches towards the eradication of racial hatred that may prove tobemore e¡ective than criminal sanctions, maybe ignored if we pin our hopes tooreadily on a criminal law solutions, for example education and social pressure. Itcould be argued that legislating against racist crime has an educative aspect of itsown, yet her contribution is valuable none the less.With Sibbitt (1997) emphasis-ing the social context of perpetrators of racist crime, there is undoubtedly a rolehere for socialwelfare, education andeconomic reform. If, as she says, such crimeis a distraction from socio-economic problems of the white majority, then it issensible to assume that those problems are the root cause, needing attention.

However, considering that these crimes are occurring every day on a hugescale, andthatminorities need to have con¢dence in their criminal justice system,there is no reason why legislation could not be used as a weapon, as well as thoseothers she mentions. In short, I believe that a case has been made out, justifyingthe use of the criminal law as an e¡ective weapon against racist violence, andthat any such law is justi¢ed, in conjunction with other behaviour-changingtechniques.

Lessons to be Learned from the United States

One of the two ways of prosecuting racist violence in America involves utilisingfederal statutes. There are three such statutes,18 U.S.C. 241 (1982), 242 and 245,each protecting civil rights as opposed to combating racist crimes per se, and atleast two of these are wholly unsuited to that goal. Only statute 245 states thatinterfering with any rights of individuals guaranteed by the federal governmentis unlawful.

The e¡ectiveness of federal statutes is debated because even 18 U.S.C. 245 isrestricted to rights speci¢cally pinpointed by the government, and the remedyis limited. Hernandez (1990) rightly notes that, as well as problems of enforce-ment, it is very di¤cult to ¢t arbitrary acts of racist violence into the realm ofinterferences of constitutional magnitude, and argues that ` Federal statutes arenot tailored to address the spontaneous violence caused by unconscious and con-scious racism'' (p. 848). Conversely, there are advantages to federal laws, such asjuries being summoned fromwider areas, so reducing the racial tensions so oftenexperienced locally (Padgett 1984). Additionally, local juries rarely convict, andit is true that the federal statutes are versatile. In spite of these arguments, little

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can be taken from the American federal model for adoption in this country, dueto our lack of positive civil rights and a Bill of Rights, althoughwith the advent ofthe Human Rights Bill 1998, this seems likely to change.

The only federal statute fromwhich lessons canbe learned is the recent FederalViolent Crime Control and Law Enforcement Act 1994 [3].This act revised thesentencing guidelines to enhance punishments for racist crimes by three o¡encelevels above that of the underlying o¡ence. The evidential standard for ¢ndingracial hostility is `beyond reasonable doubt', and this punishes racist violencewithout legislating against speci¢c o¡ences as is proposed in this country. Thesame result has been achieved in America by sentence enhancement and a heavyevidential burden. The judge cannot increase a sentence because he suspectsprejudice, but has strong guidelines only once the motivation has clearly beenmade out.

The other way racist crimesmaybe prosecuted is on a state level, and 36 statesnow have some legislation to counter racial hatred ( Jacobs & Potter 1997). Mostof these are divided into general civil rights laws and laws which criminalise `ra-cial harassment'or `racial hatred'speci¢cally. State hate crime laws di¡er accord-ing to which prejudices transform ordinary crimes into hate crimes, and alsoaccording to which predicate crimes, when motivated by prejudice, qualify [4].

The main problems with state legislation of this kind are associated with ra-cism locally impeding the due process of justice (Morsch 1992). Hernandez(1990) bemoans the lack of enforcement mechanisms and quotes prosecutorialdiscretion and the unconscious racism of prosecutors as reasons for the lack ofsuccess of state statutes.This notion is supported by the revelation that, between1981 and 1992, there were only two convictions under the Oregon Hate CrimesAct 1981. Systematic local discrimination is therefore the result (Noll 1978), asremedies are not adequately enforced.

Apart from racial motivation, another tool some American states use to com-bat bias crime is `racial animus'.This de¢nes crimes on the basis of the perpetra-tor's animus toward the racial group of the victim, and the animus itself isdeemed to be the reason behind the crime.There need only be some hostility to-wards the victimorhis racial groupbecause of hismembership of that group, andthis removes any requirement for motivation to be proven. This is an obviousbene¢t, as provingmotivation is so problematic, yet hostility must still be provenin some sense, and if, for example, nowords are spoken during the course of racistattack, then it will be equally di¤cult to prove that there was racial animus, asopposed to any other type of hostility. Most states have got around this problemby using the formulation `because of ' the victim's race, and this then leaves it inthe hands of the court to decide how this should be determined.

Due to the structural di¡erences between America and Great Britain, furtherguidance can only be gleaned in eliminating racially motivated crimes in oneother area. Since the Hate Crimes Statistics Act 1990 [5] there has been federalcompilation and reporting of all racist crimes, and this has therefore needed asolid de¢nition of what it means for a crime to be racially motivated. Any such

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clari¢cation could only be helpful in achieving the same goal in this country.TheGuidelines [6] include an o¡encewhich is `motivated, inwhole or in part'', by theo¡ender's bias, and the two-step process involves local law enforcers answeringquestions such as:

(1) Is the motivation of the alleged o¡ender known?(2) Is there no clear other motivation for the incident?(3) Did the incident occur on a day of signi¢cance to either the victim's or the

o¡ender's group?

Of course, these cannot provide wholly accurate and reliable means for identi-fying race crimes ( Jacobs & Eisler 1993), fraught as they are with subjectivity.Nevertheless, they do provide one way of determining whether a crime was ra-cially motivated, and could give guidance to English police, and particularlyEnglish juries, whose only other instructions would be to ¢nd that there was ra-cial motivation `beyond reasonable doubt'. This is a vague construction indeed,and if the jury had a set of questions, the responses of which it has to be satis¢edwith during the course of the prosecution before ¢nding racial motivation, thenthis would at least give direction and focus on how best to reach its verdict.

Prosecuting Racially Motivated Crime in England andWales

Over the past few years, the targeting and treatment of victims of racially moti-vated incidents have been improved by the Criminal Justice System. For example,CPS practices have changed, primarily due to the recommendations of successiveHome A¡airs Committee Reports. For example, in both 1989 and1994 the Com-mittee suggested that the Director of Public Prosecutions monitor the outcome ofcases of racist attacks and harassment. After a small and inadequate attempt in1993, the recommendation was repeated in 1994, calling for articulation of num-bers of cases discontinued, charges down-graded and reasons for this.

Because of such sustained pressure, a new monitoring scheme was introducedon1st April 1995 by which each CPS branch logs racial incidents and returns aresent to Headquarters every month for analysis. In this way, monitoring is speedyand e¤cient, and ¢rst results detailing the year ending 31st March 1997 foundthat in 84�5 percent of cases, evidence of racial motivation was alerted to thecourt, leaving a signi¢cant 15�5 percent of cases in which this was not being doneor themotivationwas not being recordedby the police in the ¢rst place.ThePro-secution Manual may help to relieve this problem, but for the moment it is clearthat, despite increased monitoring, there remain problems relating to highlight-ing racial motivation in court.

Where £agged up, the role of racial motivation in the process of prosecutionmust be determined, because the Rule of Law demands consistency and predict-ability of outcomes and thus in the conduct of CPS lawyers.The1992/3 CPSAn-nual Report discusses criteria for the public interest requirement for prosecution,

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and it is said that the interests of the victim are an`important factor' in determin-ing the balance of the public interest, and should be considered.`A clear racialmotivation will be regarded as an aggravating feature when assessing whetherprosecution is required in the public interest'' (p. 45). It is clear that evidence ofa prejudicedmotivation is very relevant in the decision to prosecute, for althoughnot relevant to any assessment of liability, it canbe utilised as an aggravating fac-tor and at preliminary stages of the process.

Furthermore, the 1994 Code for Crown Prosecutors reiterates the point thatany discrimination against the victim is regarded as an aggravating feature. Evi-dence of this motivation is most often presented in terms of racist language used,prevalence, previous similar o¡ences, and engagement with known racistgroups.

The point is that both the police and the CPS have recently made e¡orts totarget racist crimes and deal with them in a speci¢c way, to meet the argumentthat racially motivated crimes are more serious than parallel crimes and so re-quire special treatment. Despite problems with this targeting process, it is a use-ful way of monitoring these types of crimes, not only allowing us to assess policeperformance in identifying and processing crimes of racial motivation, but alsorevealing the ways in which the prosecution reaches decisions which then a¡ectoutcomes. But how is motivation to be identi¢ed? With no current proposals, itwill be for the courts to de¢ne motivation and provide guidance as to whatconstitutes it.

It might be argued that racist crimes could be tackled by the CPS with no re-ference to motivation at all because under the revised Code for Crown Prosecu-tors (1994), evidence of premeditation, o¡ending in groups, previous convictionsor cautions relevant to the present o¡ence, and believing that the o¡ence is likelyto be repeated because of a history of recurring conduct, are all factors tendingtowards prosecution. However, this leaves a gap for those o¡ences not falling intoany of these categories, and racial motivation itself is thus necessary as a catch-all' category, ready to capture racist crimes which would not otherwise receiveany extra punishment. The issues raised by the CPS (noted above) as evidenceof motivation are very similar to the two-stage test questions asked in someAmerican states, and whereas the former are factors in determining whether aprosecution is required in the public interest, the latter identify racialmotivation.Should the CPS factors be incorporated for a similar task, then legislationspeci¢cally designed for the identi¢cation of racial motivation need only take acatch-all' role, as support for other evidence of `racial motivation' collected bythe CPS. The legislation would still be needed, as the CPS factors only provideevidence of `motivation', which must then be subjected to statutory requirementsand punishments.

The courts have only recently started increasing sentences because of theaggravating factor of racial motivation.There have been a number of cases illus-trating this, such as R. v. Ribbans, Duggan and Ridley [7] in which Lord ChiefJusticeTaylor increased the sentences of the three defendants under s. 36 of the

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Criminal Justice Act 1988 from 3 years to 5, and 5 years to 7, because of theirracial motivation. As he put it:

` Their Lordships took the view that it was perfectly possible for the court todeal with any o¡ence of violencewhich hadaproven racial element in it, in away whichmade clear that that aspect invested the o¡ence with added grav-ity, and therefore has to be regarded as an aggravating feature.''

Thus motivation has become relevant to sentencing but not to o¡ence de¢nitionor liability, and Brown (1992) explains this by the level of punishment which thecourt can in£ict upon defendants. A judge's discretion to increase a sentence forracial motivation is still limited by the statutory maximum penalty, whereas aspeci¢c racially motivated o¡ence gives the jury the power to pile a second of-fence onto the basic one, thus increasing the potential for punishment.

The only way of ensuring fair and consistent sentencing of racist o¡enders is toinstil the racial element in the de¢nition of the o¡ence, because there are toomany problems involved in the judge alone increasing the sentence according tohis conscience. In the HomeA¡airs Committee'sThird Report,Racial Attacks andHarassment (1993^4), Sir Herman Ouseley, and Chris Boothman of the Commis-sion for Racial Equality doubted whether evidence of racial motivation wouldalways lead to increased sentences. Boothman also pointed to the fact that theCourt of Appeal has not yet laid down any guidelines for judges to work with inenhancing sentences, so that only inconsistency and confusion would result(qq. 296/8).

Furthermore, leaving sentencing to the court would mean leaving discretionwith the judge alone, and in view of the conservative make-up of the judiciary,any cases in which racial motivation was ignored would invite allegations of ra-cism, whether founded or not. At least if new racially motivated o¡ences werecreated it would be for the jury to decide guilt, based on the criminal evidentiaryrequirement of `beyond reasonable doubt'. Michael Howard preferred to aver tothe judges, meaning that extra sentences could be imposed with no suchsafeguards (q. 431).

The immense problems involved in proving the existence of racial motivationin court have been described by Jacobs and Henry (1996) as `a complex, fre-quently impossible endeavor (sic)'' (p. 384). Because someone's motive lies pecu-liarly within their knowledge, this undermines the ability of others to prove themotive in racist crimes (Morsch1992). Jury decisions may depend upon its mem-bers'own prejudices, and there will evidently be disagreement and uncertainty.Inferences about a motive based on circumstantial evidence are bound to be in-accurate, and there is the related problem, referred to above, by which manyperpetrators motivated by hostility may not be punished for that, because of thedi¤culties of proving it beyond reasonable doubt. Multiple motives makes thiseven more di¤cult (Mazur-Hart 1982), and the exact degree to which racismneeds to have motivated the criminal conduct is unclear.

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Althoughmotivation is especially di¤cult to prove in a court of law, emergingfrom the mind of the o¡ender, intention is not always clear to see either, sharingthat characteristic, and yet that requirement lies at the very basis of all criminalguilt. Traces of motivation are often left in the physical world and can be cap-tured, through inference and investigation.We have seen how some Americanstates identify racial motivation, and despite the subjectivity involved, if a juryin this country was unanimously to reach a decisionbasedonthe answers to ques-tions similar to those, then this would not £aw the process.This is the advantagein using the existingCode for Crown Prosecutors1994 to ¢nd evidence ofmotiva-tion.There is a need for extra guidance in courts, so that juries knowwhat to lookfor and what standards they should meet. Once these requirements have beenmet, then provingmotivation should not scupper any proposals for the introduc-tion of raciallymotivatedo¡ences. Even if proof of racialmotivation inunobtain-able, the perpetrator is still guilty of the parallel o¡ence, and it is preferable that aguilty perpetrator escape the enhanced penalty for his racial motivation than aninnocent one receive a higher sentence for amotivewhich he did not share. If thisshould be the natural consequence of a requirement of racial motivation`beyondreasonable doubt' then so be it.

Proposals in the Crime and DisorderAct 1998

Sections 28 to 32 introduce new racially aggravated o¡ences parallel to the mainexisting o¡ences of violence, harassment, and criminal damage in the O¡encesAgainst the Person Act 1861 (section 20: malicious wounding or grievous bodilyharm, section 47: actual bodily harm, common assault), the Public Order Act1986 (sections 4, 4A and 5), The protection from Harassment Act 1997, and theCriminal Damage Act 1971 (section 1 only). For each new o¡ence, signi¢cantlygreater penalties are available. Section 28 states that an o¡ence will be held tobe racially aggravated if:

(1) (a) At the time of committing the o¡ence, or immediately before or afterdoing so, the o¡ender demonstrates towards the victim of the o¡ence hosti-lity based on the victim's membership or presumed membership of a racialgroup, or(b)the o¡ence is motivated (wholly or partly) by hostility towards membersof a racial group based on their membership of that group.

Under section 28(2), and `presumption' of membership of a racial group issub-section (1)(a) is that of the o¡ender. Finally, section 82 gives statutory author-ity to the judgement in R. v. Ribbans, Duggan and Ridley by stating that racialaggravation in connection with an o¡ence is an aggravating factor, meriting asti¡er sentence.

Despite some Tory murmurs of disapproval, pressure groups consultedhave broadly supported the new proposals. Charges may now be taken in the

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alternative, so that if motivation cannot be proven, a perpetrator can be foundguilty of the ordinary'o¡ence instead. Furthermore, by creating general o¡encesof racially aggravated crime in section 82,

` . . . it will compel the evidence gatherers in speci¢c cases to focus upon theissue of racial aggravation in respect of those matters.We believe that is agood thing and an important message to send to the world'' (Lord Falconerof Thoronton, Solicitor-General: Column 590, 2nd reading).

The heavily increased penalties are also to be praised, forcing the courts to takethe problem of racist crime seriously, and as the Commission for Racial Equalitysaid in its Appendix to the Committee's report [8], the creation of speci¢c of-fences demonstrates unambiguously the government's abhorrence of this kind ofcrime, and so the symbolic aspect is crucial in regaining the trust of minoritycommunities who have felt for so long that the law is just another weapon to beused against them [9].

If it is true that motivation is already considered at the sentencing stage,then it might legitimately be asked why legislation is needed at all. Sibbitt (1998)speci¢es the procedural di¤culties with the former approach, such as the factthat evidence of racial prejudice is not always brought to the court's attention(CPS1997), and that evenwhere evidence of a racist element is mentioned, courtsrarely indicate that this might lead to an increased punishment, although unders. 82(2)(b) of the Act, courts will now have to state in open court that racialmotivation is an aggravating factor going to sentence. Issues of the evidentialstandard arise, as does the wisdom of leaving the decision to a single judge ratherthan a jury. Furthermore, during the third reading of the Bill, Lord Falconer cri-ticised the idea that instead of creating new o¡ences, all sentences for standardo¡ences might simply be raised. By moving the goal posts in this way, all sen-tences would go up, not just those featuring a racist motive. He concluded thatthe only way to ensure higher sentences for racist crimes was to create newo¡ences.

It was suggested at Committee stage that section 82 was su¤cient to deal withall cases of racial aggravation, and that therefore sections 28±32 were unneces-sary [10]. In response of this, Lord Falconer stated that sometimes it is not enoughto say that racial aggravation is a factor which goes to sentence: ` It is in certaincases, something which, when added to other matters, should itself create crim-inal liability'' (1272).This argument is attractive, particularly when he later con-siders the symbolic value of these sections and argues that their existence sendsout a clear message that particular acts are now criminal o¡ences.This messageis most usefully transmitted to the police and prosecutors, as it is they whoenforce the legislation, and must therefore be assured that it is necessary anddesirable.

Lastly, the argument that sections 28 to 32 are necessary is supported bythe need to raise sentences for particular o¡ences.This is a fundamental reason

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behind the provisions, yet it opens the government up to calls of inconsistency,as some o¡ences are speci¢cally legislated against, while, despite the impor-tance of their symbolic value, others, with su¤cient existing penalties, are not.For example, criminal damage and s. 18 of the O¡ences Against the PersonAct 1861 (wounding with intend to do grevious bodily harm), both carry-ing amaximum life sentence, were excluded from the initial proposals, althoughcriminal damage was included at the last moment in section 30. It wasargued that there was no point in creating speci¢c racially motivatedo¡ences in those areas when the sentences could not be lengthened atall. Thus the symbolic power of legislation seemingly did not apply in theseareas.

Another danger with the legislation is that o¡ering alternative verdicts maybe perceived as invitations to `plea bargain' (Commission for Racial Equality1997).Where the basic o¡ence is summary only, but the racist one is indictable,then the Crown Prosecution Service may be tempted to accept a plea of guiltyto the lesser o¡ence, saving both time and taxpayers' money. However, thisoption would mean the perpetrator evading the more serious charge. TheHumberside Police Authority commented on this during consultation, suggest-ing that a possible solution might be to impose a duty on the CPS to give reasonsfor accepting a reduced charge.This could be an e¡ective block on plea bargain-ing, especially if the judge was the ¢nal arbiter of what charges should bebrought.

Some of the most di¤cult issues to resolve are those concerning the terms `ra-cial'and `motivation'. Amendment157 at the third reading proposed the elimina-tion of section 28(1)(a) which speci¢es race as the key motivating factor behindthese new o¡ences and, although withdrawn prompted some interesting argu-ments onboth sides. LordMonson questioned the priority of race, andwonderedwhy harassment on the grounds of clothes, lifestyle, disability or size was lessimportant, and thus, undeserving of additional legislation. He also used theproposed provisions to show the illogicality of calling someone a `Scottish so-and-so' being a racist crime, but calling someone else a `Georgie so-and-so' notbeing so (para. 1267). This argument reveals the slim di¡erence between raceand nationality, and further, the di¤culties in de¢ning race. It is the ideologybehind the concept of racism that so often marks the di¡erence between groups,with the focus on exclusion.

In response to these criticisms, Lord Desai focused on the terrible crimesoften committed because of the colour of peoples' skin, and said that toobtain real equality, the law must be used wherever possible. As he said: `Wecannot properly pretend that there is no di¡erence between being a Bangladeshiwoman living in Southwark and being a Welshman at a rugby match''(para.1271).

Lord Falconer later gestured,` It would, in my submission, be the most ridicu-lous reason for not voting for these provisions to say that they do not include lotsof other perfectly worthy groups who require protection'' (para.1273).

RaciallyMotivated Crime 115

This argument convinces because the law often intervenes to protect the vul-nerable, such asminors and thementally ill, and here, just because otherswill notbe protected is no reason to prevent help to those who need it most.

The test for racial aggravation in section 28(1), being either a demonstration ofracial hostility at or around the time of the basic o¡ence, or motivation of racialhostility, has also been criticised for not being e¡ective enough, and by some, forbeing toowide.TheCriminal BarAssociation (1997) asserts that under this test, achance racist remark at the time of the o¡ence would denote racial motivation,even when this did not exist. Putting the morality of such a comment aside, it isquestionable whether one isolated comment should provoke an enhanced pen-alty. On re£ection, this is a pertinent criticism of only the ¢rst part of the test,and at the crux of the problem lies the phrase `at the time of committing the of-fence, or immediately before or after doing so''.

The Commission for Racial Equality (1997) also has reservations about the¢rst limb of the test.To prove a racial elementbeyond reasonable doubt, the ques-tion put to the jury must be unambiguous, and ¢nding a demonstration of racialhostility 'at or around the time of the o¡ence'' (Home O¤ce 1997a) is not su¤-ciently precise.Would a12-hour gap between a racist comment and an assault bearound the time'of the basic o¤ce? It would appear that any demonstration ofracial hostility at all, committed at any point, would come under the second limbof the test, and so section 28(1)(a) is unnecessary. The relevance of when racistbehaviour was conducted is doubtful, as it is the motivation that it paramount,this is covered by section 28(1)(b) and is easily proven beyond reasonable doubtby demonstrations of racial hostility.

The CRE is also worried about the second part of the test, remembering thedi¤culties in proving racial motivation. However, considering how most Amer-ican states now determine motivation based on the Uniform Crime ReportingGuidelines, and the recommendations of Insted Ltd (1997) on behalf of the Run-nymedeTrust whichmirror these lists of questions tobe asked, thebarrier of prov-ing motivation can be overcome with careful investigating, consideredprosecuting and the use of factors already outlined by the CPS in its assessmentof the public interest. Instead of choosing this route, the CRE would prefer toadopt the construction of the Race Relations Act 1976, which stipulates that thebasic o¡ence was committed on racial grounds'. This introduces a `but for' test,yet the problem of proving racial motivation remains.Thus, there is no reason tochange the wording when nothing would be gained by doing so.

Other suggestions for constructing a statutory formula for racial motivationrange from the Home A¡airs Committee refusing to de¢ne it in its proposal foran o¡ence of racially motivated violence (Home A¡airs Committee 1993±4), toPoale Zion's test that racial hostility should be the o¡ence's primary cause.Neither of these two adequately deals with the complexity of prejudiced motive;the only possible alternative is that suggested by the CPS. In its submission to theConsultation Document, it proposes a `reasonable bystander' test, by which anobjective standard is used to determine the existence of racial hostility. This

116 H. Cohen

appears a useful tool and could be another factor for the CPS to put to the juryalong with the other factors laid out in the 1994 Code, but a `reasonable bystan-der's' view may not always harmonise with that of the perpetrator. Furthermore,a jury's conception of what a `reasonable bystander'might think may di¡er ac-cording to its make-up and its view of the crime and/or perpetrator. FollowingACPO's example in its de¢nition of racist crime, it is essential to bear the victim'sview in mind, because if his subjective belief is used to de¢ne the incident, then itseems illogical not to consider it in the prosecution.This factor could also be putto the jury by the CPS. It would not be decisive because only the subjective mo-tive of the perpetrator can lead to a charge of race crime and subsequent en-hanced punishment, but it is crucial to consider none the less.

Finally, and perhaps most importantly, is the question of enforcement. Althoughnot mentioned in the House of Lords, this is crucial if the legislation is to operateproperly ande¡ectively. Despite being under a duty to consider framing sentencingguidelines within certain categories of o¡ence under section 80, if the Court ofAp-peal is unwilling to provide such guidance, the CPS does not use existing factors toshowevidence of racialmotivation, andcourts get boggeddown in issues ofmotiva-tion, then this legislation couldmirror Part III of the Public OrderAct1986 dealingwith incitement to racial hatred. Between1986 and1991, therewere only17prosecu-tions under these provisions, and it is undoubtedly true to say that such laws havedone little to deter o¡enders. Thus, it is inevitable that this new raft of legislationrests on the ability of the police, the CPS and the courts to enforce it.

In conclusion, the racial provisions of the Crime and DisorderAct are construc-tive, but based on mixed motives and so invite some degree of criticism. It isinconsistent to apply the new laws to all o¡ences against the person under theO¡ences Against the Person Act1861except s.18.The test for motivation is unclear,opening the door to confusion anduncertainty.The ¢rst part of the test in section 28(1)(a) in unnecessary as all demonstrations of hostility can easily fall under thesecond limb of hostile motive. Nevertheless, the innovative nature of this Act mustnot be forgotten either. After all, this is the ¢rst time that the government hasconfronted the issue of racially motivated crime, and for this, we must be thankful.The enhanced penalties are substantial, and proving motivation, although proble-matic, will force the courts to take the matter seriously, and should promptguidelines from the Court of Appeal to ensure the consistent and practical applica-tion of the new law. If not, then existing CPS questions assessing the public interestcould be used to identify motivation. It is for these reasons that I believe the newproposals represent a major step forward in the ¢ght against racist crime, and, ifproperly enforced, monitored and reviewed, could represent our most e¡ectiveweapon yet.

Notes1 See Fitzgerald andHale (1996),Mayhew, Elliot andDowds (1989). Aye-Maung and

Mirrlees-Black (1994).

RaciallyMotivated Crime 117

2 A`parallel crime' is a crime qualitatively identical to a racially motivated crime,except that the former does not share the racist motive.

3 Pub. L. No.102±232.4 For example, in Pennsylvania any o¡ence is a hate crime if motivated by race, re-

ligion, national origin etc. (Pa. Cons. Stat. 2710 [a]).5 Public Law101±275, April 23rd1990:101st Congress.6 Uniform Crime Reporting,Training Guide for Hate Crime Data Collection, FBI,

U.S. Dept. of Justice, at 14/5.7 25th November1994,Times Law Reports, pp. 607±8.8 Appendix 6.9 See comments of Baroness Hylton of Eggardon, Day 3 of Committee Stage: Han-

sard:12 February1998:Vol. 585: No.102, Col:1276.10 Lard Henley at paragraph1271.

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