Calls for Barry Smith murder to be recognised as race hate crime

4 November 2014


Above: Barry Smith, who was murdered in October of last year

ON June 15 three people, two men and one woman were found guilty of the murder of an English Gypsy, Barry Smith, in Kilburn, near Derby, in October last year. Vincent Aitken, 44, must serve a minimum of 22 years and 118 days; Nathan Doherty was sentenced to a minimum of 18 years 118 days and Emma Aitken, 19, will serve a minimum of 12 years. The body of 48-year-old Mr Smith was discovered outside Kilburn Welfare Social Club, Chapel Street, on the morning of October 6, last year by local dog walkers. He had been beaten to death using pool cues and a fence post and his body had been set alight. Police investigating the crime described it as a particularly horrific crime scene.

The sentences were not enhanced for race hate as the judge, Justice Charles Haddon-Cave QC decided that the crime was not racially motivated. Haddon-Cave is well known as an aviation, marine and travel law expert, but has no background in hate crime. The family believe that there was a race hate element that was not recognised by the trial judge and are devastated by the light sentences – which they point out would have been far higher if the race hate element had been recognised.

Aitken’s wife Pamela Aitken, 40, was found not guilty of assisting an offender. The court heard the attack was carried out as a result of an incident that took place in the club, where Pamela and Vincent Aitken were stewards, the previous week. Jurors were told Pamela Aitken repeatedly called Mr Smith a racist name - "pikey". Mr Smith’s partner confronted Pamela about this and wrote a letter to the club’s committee. Pamela Aitken resigned from her job before the committee meeting. Mr Smith believed the incident had been resolved and had been drinking in club the night before his death. The court heard and it was accepted that the trio, Doherty, Vincent Aitken and Emma Aitken carried out the assault in revenge for Pamela losing her job at the club. The force investigating the murder, Derbyshire Constabulary, did consider that there might have been a race hate element and flagged it as such to the trial judge. However, the judge made a separation between the racist comments that lost Pamela Aitken her job - and the revenge attack that was carried out in retaliation. Although the spark for the attack was clearly the racist incident, which then sparked the revenge attack, the judge said that the attack itself was not motivated by racism towards Barry Smith ‘as a Gypsy’.

Above: the Ministry of Justice has been encouraging Gypsies, Roma and Travellers to report race hate crimes, yet there are questions about the likelihood of such crimes being prosecuted

The Crown Prosecution Service has also let it be known that they are considering referring the length of sentences set by the judge to the Attorney General, Dominic Grieve. Travellers Times has learnt that the CPS is carrying out an urgent review of the case. In particular, there is disquiet within both the CPS and the police about the length of sentence handed down to Emma Aitken, 19, who will serve only 12 years (having spent almost a year on remand). This is short for a murder sentence, especially when compared to the sentence received by her boyfriend, Nathan Doherty, who will serve over 18 years. It is completely unclear why Emma Aitken received such a short sentence. There were no mitigating factors that would have automatically reduced her sentence – hence the possibility of an appeal.

Just as in many cases of disability hate crime, from 2007 onwards, serious crimes against Gypsies, Roma and Travellers are rarely recognised, investigated or convicted as hate crimes.

Stephen Brookes, a member of the Crown Prosecution Hate Crime Scrutiny panel in the north-west of England, and a founding member of the Disability Hate Crime Network, a group formed to raise the profile of crimes against disabled people, says that hate crime against the travelling community and disabled people are rarely recognised and expressed sympathy for the Smith family. “All too often, judges fail to use the powers available to them in enhancing sentences where crimes are shown to be aggravated by the life style or specific characteristic of the individual. The failure to investigate hate crimes in this way almost gives a green light to perpetrators that it is all right to target an individual whose lifestyle you don't like.”

The first guidance issued by the Crown Prosecution Service on hate crimes against the communities was published in November 2011, steered through by the then West Midlands prosecutor, Rosemary Thompson. At the launch of that guidance, Thompson said that she had been unable to find a single successful prosecution for a hate crime perpetrated against a Gypsy or Traveller. This remains the case today.

A spokesperson from the Traveller Movement said that the charity was "concerned" about the lack of a race hate element to the sentences of the convicted. A spokesman said: "It reminds us of the Johnny Delaney case, the young Traveller child who was killed by racists for ‘being a Gypsy’ in 2003. That killing was not prosecuted as a racist crime and the murderers received ridiculously light sentences in spite of compelling evidence from witnesses showing that the manslaughter was racially motivated." He added: "The criminal justice system needs to start taking seriously the rising levels of racially motivated crime directed at Gypsies and Travellers. Why should Gypsies and Travellers place trust in a system that so often lets them down?"

"It seems the criminal justice system is still not recognising hate crime, even where the facts seem plain," said Ken MacDonald QC, Warden of Wadham College, Oxford. "Where it fails to do so, it fails in its most basic duty to protect people from violence and abuse," he said.

Shay Clipson, a Romany Gypsy community campaigner for equal rights for justice for Gypsies, Roma and Travellers, and a former magistrate, commented: “'It is difficult to imagine how the trial judge could have considered this terrible act to have been anything other than racially motivated - given that it originated from the victim’s objection to being called a ‘Pikey’. I have been an advocate for the Gypsy and Traveller community for some considerable time, and I see almost daily the law being used very heavily in regard to the eviction of Gypsy and Traveller families who quite literally have nowhere else to go, but in contrast when it comes to being protected by the law when it comes to hate crime and racist attacks the rule of law seems to be conspicuous by its absence "