Richard Stone, Macpherson's fellow investigator, is equally adamant. Stone dismisses criticism of the report from a civil liberties standpoint as "crap" and "a destructive tactic that is motivated by those who want to discredit the report." As far as Stone is concerned, these issues naturally "came out of the inquiry and we could not avoid them....We simply said we thought it would be reasonable for them to be considered."
Stone is right when he says that these issues arose spontaneously out of the inquiry. Double jeopardy came up because the prime suspects were in fact tried and acquitted for Lawrence's murder. Their acquittal was blamed largely on police ineptitude. This inflamed the Lawrences' sense of injustice and led many to argue that retrials should be allowed. The matter of prosecuting racist language in the home arose because the inquiry team sat through hours of secret surveillance videotapes shot by the police inside one suspect's home. While the police found nothing on the tapes to implicate the youths in Lawrence's murder, they did record foul racist language that Stone described as "ghastly" and an "incitement to violence."
But powerful though those experiences may be, the peculiar events surrounding Stephen Lawrence's murder--however unpleasant or unfair--do not explain why the British government, civil rights lawyers, and many activists are so keen to embrace these recommendations. Consider Mike Mansfield, one of Britain's top radical lawyers, who less than two years ago championed the cause of free speech during the infamous McDonald's libel trial, the longest civil trial in British history. (McDonald's sued two environmental activists for libel when they published a polemical leaflet critical of the hamburger chain.) Now he champions the idea of criminalizing offensive speech in the home. People like Mansfield once would have condemned Macpherson's recommendations for violating fundamental civil liberties. Their new perspective reflects a shift in expectations about what the law should do.
In the past, the law was used simply to judge an individual's acts. To paraphrase the old adage, a man could judge another man's actions, but only God could judge your thoughts. Today, many former radicals expect something different from the law; they are adopting a more "divine" approach. It is now fashionable to use the law to "send messages" and to "correct" people's attitudes. Although nobody uses the term, the law is seen as a legitimate tool of social engineering, and it is now expected to reach right into people's minds (and homes) to effect change.
The proposal to outlaw racist language even when spoken in private epitomizes this approach. Far from being a strange aberration of one inquiry, this recommendation is entirely in line with the current direction of change in British law making. To date, most critics of this measure have said it would be an invasion of privacy, or argue that an Englishman's home should be his castle. While this is true enough, such arguments fall on deaf ears because they fail to confront what it is about this measure that makes it so attractive to so many.
Britain has never enjoyed the constitutional protection of speech that exists in the United States. Since 1965, it has been a crime in Britain to incite racial hatred. This law was introduced as a form of public-order legislation following inner-city race riots in the late '50s and early '60s.
Since then the law has been strengthened several times. Using racist language is now a criminal offense even in the soccer stands. The Crime, Justice, and Public Order Act of 1994 outlawed the publication of racially inflammatory material, and the Crime and Disorder Act of 1998 singled out racially motivated assaults for special punishment. The newly adopted definition of a "racist incident" ensures that the number of individuals punished for having the wrong attitude can only increase.
Nor is it simply racist behavior that is singled out for special punishment. The new reformers want to protect society from all manner of offensive attitudes and actions. As one of the most rigorous critics of the new trends in legal thinking, John Fitzpatrick of Kent University, explains, "These provisions should be seen in the context of offenses that generally seek to protect people from offensive behavior and language. It is now an arrestable offense in Britain to simply cause harassment, alarm, or distress."
This is an important shift. During the '60s and '70s the law against inciting racial hatred was at least justified on the basis of maintaining public order. The argument was that racial "threatening, abusive or insulting words or behavior" were likely to stir up racial hatred that would lead to a breach of the peace. In recent years, however, public order has been less of a concern. As U.S.-style feminist and critical legal theory has become fashionable in British universities and law schools, the sensibilities of the listener have became a new factor to consider in legal reform. Without First Amendment protection or a tradition of defending free speech to contend with, radical American legal thinking has had a far greater impact on the law in Britain than in the United States. It is now the offensive nature of insults rather than the actions that might follow such words or behavior that is seen as a matter of concern for British law.
The focus on protecting people from being offended has made the law less objective. As the new definition of racism demonstrates, if incidents are judged by what degree people suffer offense, then it is the feelings and sensibilities of particular individuals that define what is and is not criminal behavior. But of course there is a problem with this: What one person deems offensive, another may find merely robust.
Fitzpatrick sees dangers in such a subjective approach. "This absurd barrage of laws promotes two dangerous ideas," he says. "Firstly, the idea that our fellow citizens are so feeble and impressionable that they must be sheltered from all manner of incitement and opinion. Secondly, that individuals and society have the right not to be offended by the sort of behavior which falls short of physical violence and was not previously deemed criminal."
The proposal to abolish the double jeopardy rule illustrates a related trend in today's legal reform movement: The elevation of the victim's interests. In the past, the rules of criminal law essentially governed the relationship between the state--which prosecuted crimes on behalf of society--and the defendant. Such basic rights as the right to trial by jury, the right to silence, the right to legal representation, and the presumption of innocence have long been in place to prevent the state from abusing its power in prosecuting crimes.
Today, however, perhaps because we see our fellow citizens (or even ourselves) as "feeble and impressionable," we have become sensitized to the interests of the victim in the criminal process. During the investigation into the murder of Stephen Lawrence, his parents were treated appallingly by the police. The Macpherson panel heard damning evidence about the ordeals they suffered. It is not surprising that this moved the inquiry team. It is less clear, however, why they drew general lessons for all victims from this evidence. The Macpherson report proposes that in future cases, victims or their families become "civil parties" in the criminal prosecution itself.
Fitzpatrick is critical of the desire to involve victims in the criminal process. "It is not healthy to allow victims too prominent a role even after conviction," he says. "In a civilized society retribution ought to be exercised rationally by the community as a whole and balanced against other considerations like the need to deter others, protect the public, and of course rehabilitate the defendant. It could also be said that encouraging victims to focus on their grievances is a very destructive institutional response."
Moreover, while victims should undoubtedly be treated with respect, it is dangerous to make their interests weigh too heavily in criminal prosecutions. Counterposing so-called "victims' rights" to the rights of the defendants in criminal trials will simply lead to unfair convictions.
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