'Racism' on trial… or a hammer to crack a nut?

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AN ELDERLY taxi driver held in a police cell for 12 hours after he used racist words in front of his white passengers has told of his relief at being cleared of criminal charges.

James Young, 71, was arrested at his home after his passengers reported him to the police, claiming they had been enraged at his insistence on describing Pakistanis in a derogatory way.

The accusations, by the wife and daughter of a former Labour MP, sent the great-grandfather, who has an unblemished record, into a spiral of depression. But yesterday, he walked free from Dundee Sheriff Court after a sheriff threw out the charges, ruling he had no case to answer.

Sheriff Maxwell Hendry said Mr Young's comments had been "undoubtedly embarrassing, annoying and inappropriate", but they did not constitute an offence.

Last night, politicians and campaigners welcomed the decision, describing the determination to prosecute in the first place as "crazy".

A legal expert said Mr Young's case threw up questions over the definition of racism, and a spokesman for Help The Aged Scotland said it demonstrated the challenge to older generations in keeping pace with changing definitions.

It also showed the difficulties in defining racism, when one of Mr Young's accusers told the court that terms such as Jock, Yank or Kiwi were not offensive.

The latest controversy comes days after a case collapsed against a stripper accused of possessing offensive weapons in his policeman routine, and adds to claims prosecutors are wasting taxpayers' money.

Mr Young picked up Jane Ross, the wife of former Dundee Labour MP Ernie Ross, and her daughter, Karen Girolami, in Dundee city centre on 9 February.

In the cab, the women discussed the issue of local parents having difficulty in finding places at top secondary schools for their children.

Mrs Girolami, 41, told the court: "We were having a private conversation and the driver joined in. He said, 'You know whose fault that is. That's the fault of the P***s'.

"We are both shocked on hearing the word being used so blatantly. It's a really derogatory word that you don't expect to hear in a taxi. He said the P***s all live with their parents, so that's how they get a position at the good schools."

She went on: "The driver said he knew he shouldn't say that word, because his daughter had told him off in the past and he knew it wasn't the right thing to say.

"I said he should perhaps use the word 'Asian' because it's a lot nicer, but he said 'it doesn't matter where they come from because P***s are P***s, C******s are C******s, d*****s are d*****s'.

"It was at that point I wanted to get out of taxi. I could see mum was tense and I said I wanted to get out because I didn't want to get into an argument with the driver."

Mrs Girolami said she paid the fare and Mr Young reminded her mother to take her bags with her. He then told the women to "have a nice day".

Mrs Girolami said she and her mother were "very angry" and "that feeling lasted right into the evening", when she called the police.

Mr Young, of Dundee, was charged with breach of the peace with racial aggravation, an offence under the Crime and Disorder Act 1998.

James Chalmers, a senior law lecturer at Edinburgh University told The Scotsman that, under the law, the behaviour might not have to offend against the victim's own race. He said: "The very obvious example would be if someone was beaten up for having a black boyfriend or girlfriend, even though they were white. That would be regarded as racist.

"There are similar provisions in England and there have been some cases where the defendant and the victim have been of the same race but it has been racially aggravated because it has been racist insults."

Under cross-examination, Brian Bell, defending, asked Mrs Girolami if she accepted "a certain generation of people from Dundee use these words because their parents did so and they themselves have all their life".

Mrs Girolami replied: "It's a fact, but it doesn't make it right. He was perfectly pleasant in every way except his language."

Sheriff Hendry asked her why she thought the word "Asian" was a more acceptable term, and Mrs Girolami replied: "Because they come from Asia. I consider myself European and I would take offence to being called a Jock. 'Pom' and 'Jock' are as derogatory as the words used by the driver."

Mrs Ross was asked by Mr Bell if people should be offended if they were called Jocks, Kiwis, Brits, Aussies or Yanks. She responded: "No, it wouldn't offend them."

Mr Bell added: "Well, these are all shortened terms and the word 'P***' is a shortened term for 'Pakistani'. Correct?"

Mrs Ross replied: "Yes, but they have a different meaning to them. Most of these people you refer to are white-skinned."

Sandy Mitchell, prosecuting, asked Mrs Ross how long she had been upset by the comments. She replied: "It's still going on. I don't like people talking like that."

Sheriff Hendry acquitted Mr Young, adding: "This is a borderline case. There is no comprehensive definition in Scots law for a breach of the peace.

"The actions of the accused were undoubtedly embarrassing, annoying and inappropriate and those singularly would not justify a serious disturbance, but take them together and they could.

"But I still conclude that there is no case to answer."

Afterwards, Mr Young, who had denied the charge, spoke of his relief.

He said: "I am so glad this is over. It has been hanging over my head for a long time.

"I was panicking for a while that it would go against me, but finally common sense has prevailed and I can get on with my life."

Last night, the Crown Office defended the decision to prosecute in the face of criticism from campaigners and politicians. But it was unable to say how much Mr Young's case would have cost.

A spokeswoman said: "The prosecution service takes all complaints with a racial element extremely seriously."

John Midgley, of the Campaign Against Political Correctness, described the move to prosecute Mr Young as "way over the top".

He said: "Whilst each and every one of us have their views over particular words, it does seem crazy that the authorities have thought that this case was worthy of using taxpayers' money to take it all the way to a court hearing.

"Hopefully, the authorities will not get the use of language out of all proportion compared to other crimes of violence in the future, so that the sheriff doesn't have to waste his time and the authorities do not have to waste taxpayers' money.

"It seems that the prosecution of this elderly gentleman was way over the top."

Bill Aitken, the Tories' justice spokesman, said the case was "clearly not a breach of the peace" and that the sheriff was "quite correct in kicking it out".

A spokesman for Help the Aged said: "It's a fact attitudes are changing. Something acceptable in the 60s or 70s can be unacceptable now. If it wasn't meant in an offensive way, or derogatory, or putting a person down, and crept up in conversation, I think it's maybe a bit hard on the man but I would imagine that he will have learned from his experience."

The case comes just days after authorities came under fire for prosecuting "Sergeant Eros", an Aberdeen student who performed a strip routine as a policeman. Stuart Kennedy was charged with possession of offensive weapons, but the case was thrown out.

THE TAXI DRIVER

"You know whose fault that is. That’s the fault of the P*** s. That’s how they get a position at the good schools. I know I shouldn’t say that word – my daughter told me off in the past and I know it isn't the right thing to say. It doesn’t matter where they come from, P*** s are P*** s … Have a nice day"

– What James Young is said to have told his passengers

THE EX-MP'S DAUGHTER

"We were having a private conversation and the driver joined in. I said he should perhaps use the word 'Asian' because it’s a lot nicer. I wanted to get out of the taxi. I didn't want to get into an argument. I was very angry right into the evening – that's when I contacted the police"

- Karen Girolami to the court

HER MOTHER

"No, people would not be offended if they were called Jocks, Kiwis, Brits, Aussies, or Yanks but those words have a different meaning to them [from racist terms] and those people are white-skinned. I’m still upset [by the driver]. I don’t like people talking like that"

- What Jane Ross told the court

No breach of peace, therefore no crime

SINCE 1998, the courts have been entitled to find that crimes are "racially aggravated". If an offender commits a crime with a racist motive, that can be taken into account in sentencing. It is the motive that matters, not the race of those involved.

A case like this one, where the "victims" are not from the group targeted by the alleged racism, may seem odd, but the law should work in this way. If one white man were to beat up another white man for having a black girlfriend, the offence would quite rightly be regarded as racially aggravated.

All this allows the criminal justice system to demonstrate that it takes racism seriously, and to better monitor the prosecution of racist crime. Denouncing racism matters - English researchers found a few years ago that defendants there were especially reluctant to plead guilty to racially aggravated offences. No-one wants to be labelled a racist.

None of this means that it is a criminal offence to discuss, or perhaps joke about, questions of race - even offensively. The law does not criminalise racist views. What it does do is ensure that where crimes are committed with racist motives, those motives are properly recognised. The prosecution against James Young failed not because of any question of racism, but simply because he had committed no crime.

The offence with which Mr Young was charged, breach of the peace, is centuries old and was historically used to prosecute brawls, quarrels and strife - as one 19th-century writer said, acts that would "disturb and alarm the neighbourhood". The offence is still used today, as the courts now put it, for conduct "severe enough to cause alarm to ordinary people and threaten serious disturbance to the community".

No doubt reasonable passengers would be annoyed and offended by Mr Young's alleged comments. They might even want to ask their council to consider whether a driver who behaves in this way is a "fit and proper person" to hold a taxi licence.

But it goes too far to say that such comments threaten serious disturbance to the community. People who shout racist abuse at football matches have found themselves standing trial for breach of the peace - and rightly so, because behaving in that way in the cauldron of a football stadium has serious potential for disturbance. Remarks in a taxi simply do not have that consequence.

JAMES CHALMERS

• James Chalmers is a senior lecturer at the University of Edinburgh School of Law.