Crime Bill gives judges more power to fight racism

New powers in the Crime and Disorder Bill to punish racism go further than many observers realise - and further than the Labour manifesto commitments. Michael Streeter, Legal Affairs Correspondent, looks at the implications of the measures.

Judges are to be given wide power to pass tougher sentences where they believe the guilty person has "aggravated" their offence with racist behaviour. An unheralded clause in the Crime and Disorder Bill, unveiled recently, will mean a massive increase in the scope of the police, prosecutors and the judiciary to crack down on racism.

The Bill creates new offences of racially aggravated acts of violence, harassment and public order, measures which were heavily- trailed and well-documented.

But Section 68, largely overlooked because of the fanfare surrounding many more high-profile features of the Bill, including measures to tackle youth crime, will allow judges to pass tougher sentences if any crime is deemed to be "racially aggravated". Unlike the new racial offences, where it is for the prosecution to prove that there were "aggravating" features, section 68 will put the burden on judges to assess any racist features and punish accordingly.

It means offences such as theft, arson and criminal damage can attract heavier sentences if there are racial overtones.

Judges will be obliged to state in court when they consider that a crime is racially aggravated and then apply it in sentencing. The extra sentence added on for racism will be proportional to its seriousness, and will push the overall sentence towards the maximum available for the existing offence.

One potential problem is if the defence challenges an judge's decision that racism did play a part, and seeks a trial within a trial on that point.

Officials had originally suggested that the test in this area should be "racially motivated" but ministers preferred the "racially aggravated" standard, which will be much easier for prosecutors to demonstrate.

This means that if, say, towards the end of a mugging, the attacker passes a racist remark, this will be deemed an aggravating factor whereas it may have been nearly impossible to show there was racial "motivation" for the crime.

The Home Office minister responsible for Race Relations, Mike O'Brien, says the impact of the sentencing clause means that the Government is going beyond Labour's pre-election pledge to tackle racist violence and harassment.

He said: "A clear message from the Government to racists is that if they do not understand that Britain is determined to crack down on racist crime, then they will have to learn their lesson from behind bars."

It seems that one likely consequence of the anti-racism measures in the Bill will be to provide greater incentive for police forces to unearth and racist elements to a crime. Although ministers praise some forces for their anti-racism policies, they believe some others are simply going through the motions.

The Commission for Racial Equality "strongly welcomed" the sentencing clause, and the fact that the court will have to state publicly that an offence was racially aggravated. However, it feels the prosecution itself should be under a duty to raise any racial element.