It is difficult to think of a term which has become more controversial in recent years than “two tier justice”. As social animals, we are fine-tuned to pick up on unfairness. Little is more toxic to trust in institutions than the thought that, through no fault of our own, we are being treated unequally. Yet, within a surprisingly short period, a significant number of Jewish people have come to believe that we cannot expect fairness from the criminal justice system.
That anxiety was palpable at the Jewish Chronicle’s “Beyond Two-Tier Justice” event, where I joined former Attorney General Sir Michael Ellis, Labour MP and Chair of the APPG Against Antisemitism Joani Reid, and leading libel lawyer Mark Lewis for an in-depth discussion on law, policing and Jews in the UK.
There is no national policy of “two tier justice”. However, there are too many two-tier outcomes to ignore. It is those outcomes which people experience, not policy intentions.
A handful of examples illustrate the case. The police have repeatedly failed to arrest, interview or charge individuals who appear to be engaged in open incitement to racial hatred against Jews and overt support of banned terrorist groups. At the same time, we remember that a Jewish legal observer on a demonstration was arrested and questioned about his Magen David necklace. It is not unusual for a pro-Gaza demonstration to end with a handful of arrests of Jewish counter-demonstrators or legal observers, while the demonstration itself is untouched.
The explanation for this disparity is prosaic. In practice, the police see their primary function as the prevention of public order. They know that any attempt to arrest a pro-Gaza demonstrator will result in assaults on the police by their comrades. By contrast, Jewish attendees will generally come quietly. When they have gone, the demonstration will be easier to police. Risk management displaces justice.
The police will often make some effort to review footage from the scene, identify misbehaving pro-Gaza demonstrators, and arrest them after the event. But the police often do not understand the evidence in front of them, which may often be of low quality. The result is a clear disparity of treatment.
The problem continues at the level of the Crown Prosecution Service. I recently asked the CPS what their prosecution and conviction rates are in relation to antisemitic crime. I was shocked to discover that, although general data on religious hate crimes is collected, it is unable to specify how many of the victims of those offences were Jewish. When an organisation can’t scope a problem, it cannot address it.
Most of us will remember the horrific days when a small and extreme far-left group repeatedly demonstrated, on Shabbat, in Swiss Cottage. At each rally, support for terrorism and incitement against Jews was clear and evident. Yet no prosecutions followed. A similar story unfolded in a demonstration outside JW3, at which attendees – many of them elderly – were forced to run the gauntlet of hostile protestors, bombarded with calls for an “intifada”. Again, the CPS declined to prosecute.
Failure to prosecute is a policy, even when it is not written down. Our community saw resources poured into the policing of public disorder in Stockport, following the massacre by Axel Rudakubana. Swift prosecutions followed and exemplary sentences handed down. A similar approach was taken with Just Stop Oil, whose campaign of sabotage and disruption was brought to the end by a wave of focused arrests and speedy trials.
We are entitled to ask why that approach has not been taken towards the rolling pro-Gaza demonstrations which have plagued this country for over two years. The uncomfortable answer is that there is a lack of political will to do so.
Jewish communities are not asking for special treatment. We have a right to expect equal protection under the law. Instead, we experience failure after failure, followed by apology after apology. It is time for this cycle of timidity to end.
David Toube is the General Counsel at the Jewish Leadership Council
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