The last six days have seen the Metropolitan Police under attack, from the media, from Parliament and from their own brass. The reason? Racism. Or allegations thereof.
The BBC especially have put their extra special shocked faces on. But, how on earth can there be racism in the Met post the Macpherson report? This is 2012, nobody is racist anymore.
Toss. British society has racist elements. Police officers are recruited from British society. As such, there’s always the risk you’re recruiting a racist. It goes in everything, football, the Arts, on university campuses, in bars at the Bar.
Racism was not fixed over night with Macpherson and it’s stupid to pretend otherwise.
I’ve always imagined that the Prison Service and the British Military were more susceptible to racism than the police for a variety of reasons. But, both of those have accepted that racism was a problem and have taken steps to stamp it out.
If one makes an allegation of racism in a prison or in a military institution they receive specialist investigation. Although I have no doubt there are still failings in both institutions, I think they’re certainly more honest to themselves.
And they have to be, they don’t have the scrutiny of the public. People can’t spot what they’re upto on the streets, or overhear things. The army isn’t on the streets of London and the Prison Service don’t deal with road traffic incidents.
Being a public service which are truly in the public eye, we are to blame for continued police racism. And some of us are more to blame than others.
The criminal justice system is one of the biggest forms of scrutiny that the police face. Much more so than the complaints system or the civil/administrative court.
And on the most part it is for the defence to scrutinise what the police have done in a particular case. When I defend, I’m dogged, particularly when there have been avenues of investigation which haven’t been properly investigated. As too will I take points when evidence has obtained in less than proper circumstances.
But like a lot of other briefs, there’s a line of defence which makes me shudder. ‘They were racist.’ There’s been many a client who has said it to me. And once said and once part of the defence it’s my job to follow that instruction.
That doesn’t mean though that it’ll necessarily even be mentioned in Court. Why? Well sometimes it may not even be relevant. Other times we may advise our clients not to raise it.
Why on earth would you not raise a police officer being racist? One problem is the BBC effect. There has been a degree of post-Macpherson social conditioning that racism is a completely shocking thing and never happens, despite the fact is completely contrary to the reality of wider society.
And it requires a lot of bravery to bring racism into a case, for two further reasons:
Of my Crown Court trials, racism only has ever come into one, and that wasn’t police racism.
Racism is often a Magistrates’ Court type of issue. A police officer was racist to me so I pushed them away from me. I swore at the officer as they used inappropriate words. I restrained the officer as they acted in a way which offended my religion and so on.
But one of the reasons we have to be so careful about ‘racism’ based defences, it because of the forum. I do not know a single black District Judge. It is incredibly rare that there is a black magistrate on a trial bench.
Does it matter? Yes, of course it matters, the point of magistrates is shared experience. If a section of the community is completely under represented then the Magistracy cannot access that element of shared experience. And I’m sorry to say but in London, being exposed to racist police officers is part of the shared experience of many minorities.
So why do we have to advise our clients not to raise a ‘racism’ defence? Because the Magistrates who hear the cases lack experience of the cultural reality of racism and therefore are less likely to believe defences which have a racial aspect.
And you have to think what type of person the Magistracy attracts. Some Magistrates are incredibly fair, in particular, the author of http://magistratesblog.blogspot.co.uk/ Bystander. I am told (as I don’t know who he is) that I came before him a lot as a second six pupil, and if it’s who I think it is, he is incredibly fair indeed, he really took the oath to heart.
But others, some Magistrates are people who want to maintain order in their communities, their proclivity will always be to believe the police. And I’m sorry to say, but Magistrates are still too old, white and middle class (even some who match that description are some of my favourites!).
So defence lawyers can be blamed for police racism.
Magistrates can be blamed for it too.
And so can the draftsman.
Within the eyes of the law, being racist is reprehensible behaviour. So if you accuse a police officer of being so, you risk all of your character going in under the bad character provisions.
If your client has previous convictions and he gets you, his brief, to accuse the cop of being racist, the convictions are likely to go before the magistrates/jury.
And that will always be a killer.
So we can’t blame entirely the police themselves for the racism that remains.
Society still has racist elements.
Defence lawyers will not expose racism as it is not necessarily in their tactical interest.
Until Magistrates are more diverse, racism will not be explored in the Courts. And until bad character rules are reformed, nobody who has been in trouble before can afford to make the accusation.
You can’t entirely blame the Met themselves for racism, when the system is set up in such a way it allows it to thrive.