January 2014

Tens of thousands of race hate crimes are going unreported every year. This is the start of an article in The Independent ¹ Anyone keen to see a society where the rights of individual citizens are not influenced by differences in ethnic background will be disturbed by this news, even more so upon learning that the proportion of hate crimes (including race hate) that is recorded by the police in England and Wales has actually fallen by nearly 20% over the last three years. Because the fact that there are fewer recorded cases does not mean that there are fewer instances of racism or hate. According to the article, there are now fewer than two out of ten allegations that are actually investigated. And even if the cases are investigated only about one third of them result in court proceedings.

To a certain extent these figures do not really come as a surprise. Something similar is happening with all sorts of complaints. Research in the past has shown that there is something called the Pyramid of Complaints. ² There are always many more instances of people feeling they have been treated in a bad or unfair way than there are official complaints about these instances. And even if there is an official complaint there will not always be an official judgement by some authority or other. This could be viewed as a kind of pyramid: at the base are all instances of unfair treatment or denial of rights; at the top are court decisions. In between are several layers; each level higher up in the pyramid has a lower number of cases.

Not all instances are turned into official complaints; not all official complaints are investigated and recorded by the police or similar authorities; not all cases recorded are actually prosecuted; not all cases where prosecution takes place end up in court. And even at the highest level cases may still drop out: the court judgement is not always going to be a conviction, even if the person concerned is convinced that in his or her case there should be one.

There are many reasons why we see this happen. Victims of something that might be regarded as a crime may not wish to mention the incident to official authorities. They may not be aware of existing procedures or the fact that certain elements of their case might make it an offence punishable by law. They might not see the use of pursuing a complaint. At different levels different interpretations of the circumstances may be used or different definitions of what the offence or crime was about. Vague cases might get less attention than clear ones. There may be problems with getting evidence. In a criminal case, a lot will depend on the way the police and also the public prosecutor deal with a specific case. People may prefer mediation to prosecution.

All these reasons and more could be behind the phenomenon of the pyramid of complaints. However in the case of discrimination, racism, race hate crime and similar the discrepancy between the number of instances experienced and the number of cases recorded or even prosecuted seems to be much greater than in the case of other crimes and offences. This clearly showed in the Annual Crime Survey that measures the extent of crime in England and Wales by asking people whether they have experienced any crime in the past year – figures will include crime that has not been reported to or recorded by the police. The number of instances with a racial motive was 154,000 whereas the official police records only had 30,000 cases. That is about 20%, whereas for all crimes the figures show that an average of 40% of all instances also shows up in the official police records. The question is therefore whether there are additional reasons behind the pyramid of complaints in the case of racism and racial discrimination.

We can certainly think of some. People vulnerable to racism, often members of ethnic minority groups, may not have confidence in the criminal justice system, possibly because it is mostly run by people not belonging to such a minority group. So they may not report instances in the first place. More specifically they could have the idea, or even the experience, that the police will not thoroughly investigate this type of cases. On the other hand it may be the police who believe it is better not to label crimes as hate crimes because in such cases it may be more difficult to get a conviction. Some accuse the police of not looking for hate crime, not taking victims seriously, or being more interested in showing that recorded crime is falling than in encouraging victims of hate crimes to come forward. Those are serious accusations and it seems likely that more research is needed to find out how justified such accusations are. Authorities – police and other – would do well however to show that they do take hate crime seriously.

Racial discrimination and race hate crimes can amount to serious violations of someone’s human rights. Any crime, for instance an assault on a person, will have an extra detrimental effect on the victim if it has been committed with a racist motive behind it. The right to an effective remedy against human rights violations is therefore extra important in such cases. Several human rights treaties clearly provide for this right. Examples are the European Convention of Human Rights, the International Covenant on Civil and Political Rights, and the International Convention on the Elimination of All Forms of Racial Discrimination.³

The fact that individuals have the right to an effective remedy does not mean that they are obliged to use it. Victims of racial discrimination may have good reasons for not reporting or further pursuing a case. They may not wish to complain too much or the matter may be too sensitive, or they may want to resolve the issue in a different way for instance via mediation. But if they do wish to have their case dealt with via a criminal investigation they are entitled to this being done properly. The state is responsible for the implementation of international human rights provisions. Government authorities should therefore do everything possible to make sure that complaints about violations of human rights – racist crimes or other – are taken seriously and investigated properly. More specifically, both authorities like the police and public prosecutor and potential victims should be made aware of the right to an effective remedy and the procedure that can be followed whenever an incident arises. Even then a case may not make it into a conviction by a criminal court as not all cases will be clear-cut and the acquisition of sufficient evidence might still be a problem. But at least every effort will have been made to sort the case out.

Notes

¹ Race hate: a crime the police will not solve. The Independent, 13 January 2014.
² This not only goes for the UK but also for other Western European states. An important research based article in this respect is: Anita Böcker, A pyramid of complaints: The handling of complaints about racial discrimination in the Netherlands. In: New Community Vol.17 no.4, July 1991, p.603.
³ For the text of the relevant international provisions, see below.

The relevant articles are the following:

European Convention on Human Rights (1950), article 13:
“Everyone whose rights and freedoms as set forth in this Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”

International Covenant on Civil and Political Rights (1966), article 2 par. 3:
“Each State Party to the present Covenant undertakes:
a. to ensure that any person whose rights or freedoms as herein recognized are violated shall have an effective remedy, notwithstanding that the violation has been committed by persons acting in an official capacity;
b. to ensure that any person claiming such a remedy shall have his right thereto determined by competent judicial, administrative or legislative authorities, or by any other competent authority provided for by the legal system of the State, and to develop the possibilities of judicial remedy;
c. to ensure that the competent authorities shall enforce such remedies when granted.”

International Convention on the Elimination of All Forms of Racial Discrimination (1965), article 6:
“States Parties shall assure to everyone within their jurisdiction effective protection and remedies, through the competent national tribunals and other State institutions, against any acts of racial discrimination which violate his human rights and fundamental freedoms contrary to this Convention, as well as the right to seek from such tribunals just and adequate reparation or satisfaction for any damage suffered as a result of such discrimination.”

© This article is copyright material

Dr Machteld Inge van Dooren, LL.M.
10 February 2014