I have always written with the intention that my work – on the relationship between law and sexuality – should further explicit political aims. For me, academia is activism; theory informs praxis. My primary aim has been to help develop and sustain a more radical sexual politics of law, which challenges the usual adherence to heteronorms implied by the demand for lesbian and gay equality, in favour of wider transformation of societal understandings of sex. Academia suits me because it gives me the critical distance to think strategically about how best to achieve this goal. But I am also acutely aware that this distance can mean a level of disengagement from the cut and thrust of activism ‘on the ground’. For this reason I jumped at the chance to put my thinking into action when, in 2008, I was offered the opportunity to take on the role of first Independent Legal Advisor to the newly established Crown Prosecution Service north-east England homophobic/ transphobic hate crime scrutiny panel.
Hate crime panels have sprung up across CPS regions in England and Wales over the last few years. Panel members drawn from communities affected by hate crime – in the case of my panel, lesbian, gay, bisexual and trans people – meet at regular intervals throughout the year to review closed CPS case files on hate crime prosecutions and report their findings to the CPS and other criminal justice agencies. The panels have been designed to open up the practices of the CPS to the communities affected by hate crime, to develop the relationship between the CPS and these communities, and improve the way in which these prosecutions are carried out by CPS lawyers. As panel Legal Advisor, I prepare the case files for review, explain the documentation to panel members, identify concerns with CPS policy and practice for discussion, record the panel’s views, and draw up action plans for the CPS to implement.
Undoubtedly my role as Legal Advisor has given me a remarkable opportunity to better understand the approach of the criminal justice system to the prosecution of homophobic/ transphobic hate crime, by engaging with the CPS ‘from the inside’. That the CPS has opened itself up to scrutiny in this way also says much about the role played by the mainstreaming of LGBT equality in encouraging the state to reflect on its own relationship with excluded groups, such as lesbian, gay, bisexual and trans people. However, my thoughts on my role have been shaped also by concern about the potential pitfalls in ever-closer engagement between the state and LGBT activists. Davina Cooper, in her work on the mainstreaming of LGBT equality in local government, has warned that while engaging on the ‘state’s terrain’ can have positive consequences, it can also have other more negative constraining effects, as the state defines the parameters of what can be thought or known about sexual politics – what Cooper describes as forms of state-imposed ‘limited thinkability’.
I have concerns about three possible areas of ‘limited thinkability’ in the work of my own panel. First, is the panel really representative of the communities it claims to serve? Panel members are those that the CPS deems the ‘legitimate’ spokespeople for LGBT activism in the north-east – but which voices has this selection process silenced? Second, is the potential for proper scrutiny undermined by the protocols imposed on the panel by the CPS? For instance, panel recommendations to the CPS must be submitted using a prescribed pro forma template, which asks questions relevant to CPS performance indicators – was there any avoidable delay, was a letter detailing changes to charges sent to the victim in time, was the CPS charging standard applied in each case etc. Does this template deter panels from asking more probing questions of CPS policy and practice around the prosecution of hate crime? And third: how can we as a panel be sure that the recommendations we make are acted upon by the CPS? The panel is reliant on the agency to implement its demands. Can panel members really be sure that by participating in this scrutiny process they are helping to bring about meaningful changes to hate crime policy, rather than allowing the CPS to rebrand itself as a ‘gay friendly’ organisation, while ignoring our toothless talking-shop?
While these concerns point to the potential dangers in activists engaging in this way with equality-driven state agencies, I am still persuaded though that cautious co-operation with the CPS can be justified. The potential benefits of extending activism to the interior of the state – in other words, access to the inner workings of the CPS, which remains largely out of reach for the usual outsider politics – outweighs the constraining effects this politics can entail (though it would be naive not to think that this access is to some extent managed by the CPS, and partial). We also have to accept that comprehensive representation of LGBT communities in any forum is impossible. As such surely it is more productive to reflect on the limitations of panel membership and ameliorate them where possible, rather than writing the panel off entirely on that basis. I have great faith too in the capacity of panel members to identify and challenge the subtle constraints imposed on them by CPS protocols. They have been inquisitive, quick-thinking, demanding and radical in their scrutiny – and have certainly not allowed a simple template pro forma to define the questions to which they demand answers. Finally, there seem to be signs that the panel’s recommendations have been heard and acted upon, demonstrated by clear improvements in the quality of prosecutions found in case files over the course of the life of the panel (though of course trying to measure with precision specific outcomes arising from the panel’s work poses its own obvious difficulties).
There is still much work to be done.
There seems to be little understanding still within the CPS of the insights of intersectional theory and activism – that understanding the experience of hate crime of a gay man from a minority faith, ethnicity or race, or a trans person living with HIV, requires recognition that they may suffer multiple forms of inequality and exclusion, which will invariably require different responses from the CPS to properly identify their needs as victims and witnesses.
There have been moves too across CPS regions recently to aggregate individual hate crime panels such as ours into ‘super panels’ that deal with several, if not all, of the six protected characteristics covered by equalities legislation. Indeed, the north-east panel is one of only two remaining single issue homophobic/ transphobic hate crime panels in England and Wales. My view is that ‘single issue’ panels are required to ensure the necessary expertise and resources for proper scrutiny of each strand of hate crime. Attempts to aggregate the panels may reflect the pressures of public sector cost-cutting to which the CPS is of course vulnerable, but it may also reflect the questionable view that in the end protected communities are basically the same, indistinguishable under the catch-all diversity umbrella.
And finally: more evidence is needed that the CPS really understands the inevitable tension between its attempt to ‘reconnect’ with north-east LGBT communities and the repercussions of historic persecution of these communities by the criminal justice system. The effects of the harassment – and worse – experienced in the past by lesbian, gay, and trans people at the hands of the agencies of the CJS will not simply disappear overnight. It remains to be seen whether the political will exists to address the aggressive policing of gay men within public sex environments, especially when relatively little attention is given to the vulnerability of gay men using these sites as potential victims of crime themselves. Convincing the CPS – and other CJS agencies, especially the police – to recognise the effect of these policies on community engagement around LGBT hate crime will be an ongoing task for the panel too.
This was originally posted on 24 August 2010 on Human Rights in Ireland, and has been reproduced with their and the author’s permission.