‘Racist Crime’: Racially Aggravated Offences in the Crime and Disorder Act 1998 Part II
| DOI | http://doi.org/10.1111/1468-2230.00214 |
| Date | 01 May 1999 |
| Published date | 01 May 1999 |
‘Racist Crime’: Racially Aggravated Offences in the
Crime and Disorder Act 1998 Part II
Maleiha Malik*
The introduction of racially aggravated offences in Part II of the Crime and
Disorder Act 1998 (the Act) represents a major shift in the state response to
violence and harassment of minorities in the United Kingdom (UK).1It comes at a
time when ‘racial violence’ is increasingly recognised as a persistent social
problem. High profile incidents such as the Stephen Lawrence enquiry have
ensured that the debate about the relationship between racial violence, crime and
law enforcement agencies in the United Kingdom has taken on greater urgency.2
Previous governments resisted pressure to introduce a specific criminal offence of
racial violence and harassment. In 1994, the Home Secretary, Michael Howard
summarised this approach in setting out the Government’s objection to the Home
Affairs Committee’s call to introduce such an offence in its report on Racial
Attacks and Harrassment: ‘All violent crimes, regardless of motivation, can
already be dealt with properly under existing legislation’.3In a sharp contrast to
this approach, the Labour Party election manifesto stated that ‘Britain is a
multiracial and multicultural society. All of its members must have the protection
of the law. We will create a new offence of racial harassment and a new crime of
racially motivated violence to protect ethnic minorities from intimidation.’4
The introduction of racially aggravated offences brings the UK in line with the
strategy of other members of the European Union (EU) and the United States of
America (USA). Some individual member states of the EU have amended and
supplemented their existing criminal law provisions in order to respond to the
distinct form that racism has taken in these countries. The new Criminal Code in
France which came into force on 1 March 1994, amended and supplemented
existing provisions on racism. In relation to the offence of desecration of graves,
heavier penalties are now incurred when these offences are racially motivated.5
ßThe Modern Law Review Limited 1999 (MLR 62:3, May). Published by Blackwell Publishers,
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* School of Law, King’s College London.
I should like to thank Lupin Rahman, Jonathan Glover and the Centre for European Law (KCL) for their
assistance.
1 For the most recent figures on the incidence of racial violence and harassment see ‘Ethnicity and
Victimisation: Findings From the 1996 British Crime Survey, Home Office Statistical Bulletin Issue 6/
98, Research and Statistics Directorate (Government Statistical Service, 3 April 1998).
2 See The Stephen Lawrence Enquiry: Report of an Enquiry by Sir William Macpherson of Cluny
(London: Home Office, February 1999).
3 The Government Reply to the Third Report From the Home Affairs Committee Session 1993–94 HC
71 (1994), Cm 2684. See HC Deb vol 235 col 32 11 January 1994 for Michael Howard’s rejection of
the Committee’s proposals. There were a number of attempts to introduce legislation. See HC Deb vol
215 col 850 9 December 1992 for the attempt by Mr David Winnick to make racial violence and
harassment a specific criminal offence. See also HL Deb vol 556 cols 1646–67 12 July 1994 for
proposals by Lord Irving of Lairg to introduce a new offence of racially motivated violence; and ibid
cols 1682–1699 for Baroness Flather’s suggestion for statutory recognition of racial motivation as an
aggravating factor in sentencing.
4New Labour: because Britain deserves better, Labour Party Manifesto 1997, (London: Labour Party,
1997) 23.
5 See Article 225–17 of the new Criminal Code 1994. This followed the desecration of Jewish graves in
a cemetery in Carpentras in 1990 (The Times, 15 August 1990). For a discussion of these changes see
European Commission against Racism and Intolerance (ECRI), ‘Legal measures to combat racism and
intolerance in the member States of the Council of Europe’, Strasbourg, 21 March 1996.
The German government has introduced legislation to extend criminal liability for
neo-Nazi, racist and xenophobic attacks.6In addition, solutions are being sought at
a regional level as the institutions of the EU, and especially the European
Parliament, are increasingly pre-occupied with the problem of ‘racism and
xenophobia’.7The USA has seen an explosion in the number of state legislatures
which have introduced hate crimes legislation into their penal codes.8They have
either introduced a specific criminal offence where violence and harassment is
motivated by prohibited factors including, inter alia, race. Alternatively, some
states have preferred a strategy of sentence enhancement so that the presence of
‘racial motivation’ leads to a greater criminal penalty. The threat that such
measures pose to the constitutional free speech rights of the accused has led to the
Supreme Court declaring some hate crimes statutes to be in breach of the First
Amendment,9leading A. W. Bradley to observe that ‘in this area, at least, the
United Kingdom and many other countries are fortunate to be without the full
rigours of the First Amendment jurisprudence’.10
The tension between the State’s aims of protecting both minorities and the right
to freedom of expression is a long standing issue which will be re-kindled by the
new legislation,11 especially in the light of the new Human Rights Act 1998 which
gives effect to the free speech provision in Article 10 of the European Convention
on Human Rights.12 In this note I examine a different challenge for those who seek
to regulate racially motivated crime: what does it mean to commit a criminal
offence with motivation which demonstrates ‘racial hostility’? Issues of motivation
and racial hostility are the key to establishing when there is ‘racial aggravation’ for
the purposes of the new legislation. Delineating the meaning of these terms is
essential for understanding the role and limits of criminal liability for racist
conduct. There are also pragmatic and institutional reasons for prioritising this
task. Law enforcement agencies have stressed that their ability to deal with racist
crime depends in large part on ensuring that they are presented with precise and
6 The Verbrechensbekampfungsgestz of 28 October 1994 which came into force on 1 December 1994
(BGB1.I 1994, 3186). See Human Rights Watch/Helsinki, Germany for Germans: Xenophobia and
Racist Violence in Germany (New York: Human Rights Watch, 1995).
7 The Parliament has issued several resolutions and reports on this issue. Early investigation was by
special committees. See especially the Report on the Findings of the Committee of Inquiry into the
Rise of Fascism and Racism in Europe – The Evrigenis Report, (Luxembourg: December 1985) and the
Report of the Findings of the Committee of Inquiry on Racism and Xenophobia – The Ford Report,
(Luxembourg, 1991). More recently, the Parliament has passed a number of resolutions on the issue
including most recently Resolution B4 – 0045/97 of 30 January 1997 on racism, xenophobia and anti-
Semitism and the European Year Against Racism, Official Journal C55, February 1997. The Council
has also adopted initiatives including the establishment of a European Monitoring Centre for Racism
and Xenophobia, see Council Regulation (EC) No.1035/97, Official Journal L151, 10 June 1997.
8 Detailed examples of the US legislation can be found in Lawrence, ‘The Punishment of Hate: Toward a
Normative Theory of Bias Motivated Crimes’ (1994) Michigan Law Review 320.
9 See RAV vSt Paul 120 L Ed 2d 305 and Wisconsin vMitchell 124 L Ed 2d 436 (1993).
10 ‘Free Expression and Acts of Racial Hatred’ [1992] PL 357, 359 commenting on the decision in RAV v
St Paul above n 9, where the Supreme Court held that Minnesota’s hate crimes statutes was in breach
of the First Amendment free speech guarantee. For an analysis of the impact of incitement to racial
hatred provisions in Britain on the right to free speech see Wolffe, ‘Values in Conflict: Incitement to
Racial Hatred and the Public Order Act 1986’ [1987] PL 85.
11 See Wolffe n 10 above.
12 Human Rights Act 1998 s 1. Strong state controls on racist speech are unlikely to be found to be in
breach of Article 10. The decision in Jersild vDenmark (September 23, 1994) Series A, No. 298) can
be explained as an instance where the Court felt that restrictions on the right of a journalist to repeat
racist speech fell outside what is justified state action to proscribe racist speech and was therefore in
breach of the right to free speech under Article 10. For commentary on the Jersild case see R.
Wintemute, ‘Blasphemy and Incitement to Racial Hatred under the European Convention’ (1995–96) 6
KCLJ 143.
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