The real problem at the Yard is institutionalised stupidity

Geoffrey Robertson on where the Macpherson report was right - and where it was wrong

Any fair reading of the Macpherson report reveals that "institution- al racism", pernicious though it is, had little to do with the failure to solve the murder of Stephen Lawrence. That was down to institutional stupidity: a coruscating catalogue of fundamental mistakes in applied logic and common sense, made by middle-ranking police officers who were not lazy or corrupt or ill-intentioned. They were just blithering idiots. The report's real failure is to address the fact that Private Eye's Inspector Knacker of the Yard has become a character not a caricature.

This was all the more surprising given that the result of this inquiry was (contrary to media coverage) a clear defeat for the Lawrences. Their lawyers argued that the incompetence of the police investigation was so incredible that it could be explained only by corrupt manipulation through professional criminals associated with the five suspects. The bulk of the report is directed to considering, and emphatically rejecting, this allegation. All the more reason, then, for asking a wider question: whether those in the office of constable are capable of feeling the collars of 21st-century felons.

It may be that we are now misled, by Inspector Morse and P D James's philosopher-policemen, into thinking that the Met does much crime-solving, just as an earlier generation was misled by Dixon of Dock Green to believe that the force was incorruptible. That canker infected the Met until Robert Mark took over in 1975, and Paul Condon has been actively engaged in combating its resurgence.

What nobody has much noticed is how other countries which share our traditions have recognised that crime is much too important to be left to the police. In the 1980s, Canada and Australia set up National Crimes Authorities run by judges and investigators to tackle serious offences, while in New York the special prosecutor system, in which detection is done by aggressive lawyers, put Mafia leaders, politicians and corrupt policemen behind bars. There is little doubt that a French investigative magistrate, or a Kenneth Starr or a Rudolph Giuliani, would have found evidence for the guilt or innocence of the Lawrence suspects within a few days of the crime.

But in Britain, during the Thatcher years, quantity rather than quality was the vote-winning catch-cry. Thousands more police were recruited, but home secretaries ran scared of necessary reforms which might upset the Luddites of the Police Federation or the 43 chief constables all jealous of their patch. The best detective work was done against terrorism - at a national level and outside the police force - by MI5 and army intelligence, using Special Branch as their runners. But "ordinary crimes", however serious, have been left to orthodox policing - with the results that are now all too apparent from the Macpherson report. It demonstrates that 400 years after Shakespeare, Constables Dogberry and Elbow have been promoted to senior positions in the Met. For that reason alone, its main recommendation should have been for a royal commission on the police.

However, racism is the focus of its actual recommendations, and some are all the more valuable for being long overdue. The best of them are, in fact, not race specific: legal aid for representation at inquests will

benefit all bereaved families, as will a rule requiring coroners to disclose police evidence, as they have churlishly refused to do in the past at inquests into the deaths of Blair Peach and Helen Smith.

There is a particularly timely proposal that a Freedom of Information Act should apply to all areas of policing, both operational and administrative - this pulls the carpet from under the Home Office, which has been delaying this reform and insisting that the police remains immune from its eventual provisions.

In some proposals, however, Macpherson goes over the top. The inquiry was deeply affected by hearing the hideous banter of the prime suspects, recorded on videotapes secretly installed in their home 15 months after the offence, and so it proposed a new offence of "using racist language in a private place". But hard cases make bad law, and I doubt whether many would want to live in a society so culturally correct that you could go to prison for uttering a racist curse in the privacy of your home, or even in your own car. Nobody has yet pointed out (except, to his credit, the officer who authorised it) that the secret videotaping was of questionable legality: had Macpherson been really astute in the civil liberty cause, he would have recommended that such intrusive and intimate surveillance should in future be authorised by a judge.

The report's recommendation to scrap the "double jeopardy" rule is equally unsatisfactory. It is not properly argued, and the inquiry seems oblivious to the fact that it would be a breach of Article 14 (7) of the International Covenant of Civil and Political Rights, which Britain has ratified. Indeed, the rule against double jeopardy in its Latin guise (non-bis-in idem) is now a rule of international law, applied by the Hague Tribunal for Yugoslavian war crimes (Article 10) and is entrenched in the Rome Statute of the International Criminal Court (Article 20), to which Britain is a signatory.

However, the double jeopardy rule only applies in human rights law to bar retrials after final acquittals, so Macpherson's proposal could be acceptable if limited to cases that have been withdrawn on technical grounds or for lack of evidence. This would preserve the position that a defendant who has been through a full trial should never face another for the same offence. The vice that this double jeopardy rule is designed to prevent is the oppressing of unpopular people by putting them on trial again and again until a jury can be found which convicts. Without double jeopardy, this is a fate that might in the current climate befall media targets such as Kenneth Noye or Bruce Grobbelaar, but it would be open to use against unpopular blacks as well.

Let us never forget that the first person to be prosecuted for the crime of inciting racial hatred was Michael X, jailed for 12 months in 1968 for a speech he delivered at Reading on behalf of the black power leader Stokeley Carmichael, who had been banned from entering Britain. Carmichael's presence, claimed the then Home Secretary, Roy Jenkins, was "not conducive to the public good". The Macpherson report, at its outset, pays tribute to the man who in 1967 first defined and condemned "institutional racism": it was, of course, Stokeley Carmichael.

Geoffrey Robertson QC is author of `The Justice Game', recently published by Vintage.