Our starting point is a proposition at once both simple and complex, that people of colour live at a disadvantage within a culture that is institutionally racist. (Statistics on Race and the Criminal Justice System 2014.)
– Class, gender and race issues weave together within policy and economic frameworks that under-allocate resources in education, housing, and healthcare. Destructive cyclical problems of gangs, post-codes and drug dealing lie at the nexus of policy failure and are compounded by issues around identity in a white and unfair world. Over many years there has been a remorseless reduction in facilities for working class people and their children; ranging from the cut back of the sure start programme; the loss of open public spaces including school playing fields and sports facilities; youth clubs; free access to swimming pools, library closures; holiday ‘play’ schemes; ratios of health visitors and so on. We might characterise this as institutional disadvantage.
– Identity is a crucial outcome of environment and education. There is an appalling failure in education to relate an accurate view of the colonial legacy (Richard Gott: 2011). Identity is a critical issue. In the absence of educational or employment progression, of ambition, it may become a default position to fall in with ‘gang’ which offers others ‘rewards’, albeit both high risk and short-term but certainty of identity.
– Institutional racism plays its part. Black youth feature as over-represented in stop and search leading to resentment and reinforcement of ‘us’ and ‘other’ categories of thought. Figures published on the 7th August 2015 state that “black people are up to 17.5 times more likely than white people to be stopped and searched by the police in certain areas of the UK.” “The issue of stop and search has dogged the police service for decades,sparking riots in Brixton in 1981 and in various parts of the country in 1985.”(The Guardian: 07/08/2015). “Black people are stopped and searched at just over 3 times the rate of white people across London in 2014/15 whilst people from mixed backgrounds were searched at one and a half times the rate of whites.”(Stopwatch). It also represents a police attitude that defines entry points to the CJS. Distorted policing leads to decision making less favourable at each stage of the CJS. Temporally as follows; to stop and search; to arrest (on suspicion); to caution rather than NFA: to charge and to treat more harshly on sentence. Some examples are set out in S.2.
– Actual and perceived injustice is rife. The litany of (never prosecuted) black deaths in custody, sometimes sparking waves of disorder in which the other factors mentioned above play their part (Scarman report 1981, August 2011 riots). (The Guardian: 17/02/1999 and Wikipedia) .While elsewhere individual acts of violent racism on occasion lead to the exposure of police culture as well as white racism. In the UK there was the MacPherson enquiry, while in the US there was the case of 70 deaths of black women at the hands of the police over a 3 year period (Sir William MacPherson of Cluny: 1999 and The Guardian: 31/05/2016: Page 12).
At its heart the problem of ‘
– What are the backgrounds of Judges?
– “Of the current senior judiciary (High Court and above), 81% have Oxbridge degrees, 76% attended fee-paying schools, and half went to boarding schools” (Cheryl Thomas: 2005:8).
– “Of the 1868 judges who declared their ethnicity there are 177 (9.5%) who declared their background as Black or Minority Ethnic (BME)”. (Courts and Tribunals Judiciary: 2015).
– 81% of judges Oxbridge educated in 2004 (Sutton Trust Survey: 2005).
There appears very little erosion of this white hegemony.
– If you are a black defendant, especially in the Crown Court (and certainly should you reach the Court of Appeal) you can expect white Judges, mostly men and often still an all-white
– The Metropolitan Police have failed post-McPherson to reach ‘proportionate’ ethnicity to the policed population (Sir William MacPherson of Cluny: 1999). 88% of
– By 2015, only 5.5% of police officers in England and Wales were from a Black or Minority Ethnic (BME) background (Parliament.uk).
– The endemic nature of establishment whiteness is demonstrated by the fact that top jobs at MI5 and MI6 are all held by white people, according to diversity figures released by parliament’s intelligence and security committee. “The latest figures show that 27% of senior roles at MI5 are held by women” none of whom are BAME (black, Asian or minority ethnic) (The Guardian: 06/07/2016: page 14). “For MI6, one in five of its senior officials are women but none is from BAME backgrounds” (The Guardian: 06/07/2016: page 14).
– Projections (The Guardian on 08/07/16 in ‘Black flight: how England’s suburbs changed colour by Hugh Muir) are that by 2061 white Britons will account for 70% of UK population, ethnic minorities 30%. What will diversity look like in the CJS? On present
– For a particular subset of
3. Legal Aid
– Legal Aid accidentally presented opportunities for lawyers of a non-white heritage to be small scale entrepreneurs. Recent Legal Aid policy has disadvantaged small firms. The Government has sought economies of scale as an outcome of policy (fewer larger firms) managing larger volumes following cuts in unit (case) prices. It is another policy with a negative impact on opportunity and diversity.
– There has been an erosion of resources within the structure of Legal Aid. Payment of fixed fees rather than on the basis of time inevitably leads to an emphasis on speed at the expense of time taken with clients.
– In the police
4. How Do Cases Reveal Institutional Racism (IR) in Practice?
– Example 1.
A GBH occurs. The description of the three assailants, Male 1. 19 years old braided hair, Somali with
Is this a case of subtle (or perhaps not even subtle) IR in practice? A simple inability to distinguish descriptions, a ‘blindness’ compounded by the
– Example 2.
It is difficult on a case by case basis to extract the IR that appears from overall statistical analysis. In this
– Courts adopt a ‘position’ of colour blindness and yet black Ds enter the ‘system’ more frequently and are disproportionately represented within prisons. “Out of the British national prison population, 10% are black and 6% are Asian. For black
Training, greater diversity, and perhaps a public recognition within sentencing guidelines that institutional racism exists and care must be taken. , submissions invited, consideration given at sentence. Can recognition of institutional racism become a part of
5. Vulnerable Ds and Mental Illness
“People from ethnic minorities remain disproportionately represented on mental health wards with no signs of this reducing, the Care Quality Commission revealed” in 2011. “The census found admission rates to hospitals were at least two times higher than average for people from
6. Police Powers of stop and search and Detention
– How is one to reconcile this paradox? The code for stop and search says “powers to stop and search must be used fairly, responsibly, with respect for people being searched and without unlawful discrimination. Under the Equality Act 2010, section 149, when police officers are carrying out their functions, they also have a duty to have due regard to the need to eliminate unlawful discrimination, harassment and victimisation, to advance equality of opportunity between people who share a relevant protected characteristic and people who do not share it, and to take steps to foster good relations between those persons”, and yet statistics above shows over propionate use on black youth. (PACE 1984 Code A: 2013: Page 3).The simple answer is a flagrant disregard of the code is the product of Institutional Racism. It is the first step on the pathway to
– It is difficult to exclude evidence ‘unlawfully’ obtained. There is a lack of weight or regard for a community interest is ‘rule’ adherence/standards versus always the desire to convict ‘the guilty’.
– Avoidance of Police Criminal Evidence Act 1984 (PACE). The ‘street’ bust. A man cycles down the street and allegedly discards a spliff. The passing police take him to the police station. They obtain a confession signed in a notebook and then let him go and follow up with a postal requisition. A guilty plea follows. The safeguards of PACE, the delivery of rights, access to lawyer avoided. This is picking the criminal low hanging fruit ( see Billie Holiday “Strange Fruit”)
– What was
– The period of detention. Long forgotten is the debate on the acceptable length of detention (imprisonment in a police cell) before charge and a decision on bail; 12 or 24 hours. The impact of 24 hours is to increase costs to police through cell occupancy and often overtime but this burden is also an advantage as it allows police officers to manipulate the process of detention. (See Vicky kemp). While the fixed fee regime reduces effective time spent by defence lawyers in the police station.
– Surely there is a powerful economic and process case for re-examining the period of pre-charge detention. There are no statistics we are aware of but we suspect that on average non-white people are detained longer.
– Statistics as far as they go highlight “over-representation”. It is our everyday experience that the CJS is replete with examples of IR selection and prosecution of Defendants.
– The difficulty is gathering evidence and the
– The coherence of society depends on a general acceptance of fairness and trials justice applies to all. At this
Reported in the Law
For more information on the
Cheryl Thomas (2005), “Judicial Diversity in the United Kingdom and other Jurisdictions, A Review of Research, Policies and Practices”. Accessed 07/07/2016 https://www.ucl.ac.uk/laws/judicial-institute/files/Judicial_Diversity_in_the_UK_and_other_jurisdictions.pdf
Community Care (05/04/2011). Accessed 12/07/2016 http://www.communitycare.co.uk/2011/04/05/ethnic-minorities-still-over-represented-in-mental-healthcare/ >
Courts and Tribunals Judiciary (2015), “Judicial Diversity Statistics 2015”. Accessed 07/07/2016 https://www.judiciary.gov.uk/about-the-judiciary/who-are-the-judiciary/diversity/judicial-diversity-statistics-2015
Greg Powell and Sinead Zaman (2016), “A challenge to the Jurisprudence of the Court of Appeal? Why
Iain Gould (24/06/2013), “Police abuse powers to arrest the ‘usual suspects’”. Accessed 07/07/2016 https://iaingould.co.uk/2013/06/24/police-abuse-powers-to-arrest-the-usual-suspects/
PACE 1984 Code A (2013). Accessed on 12/07/2016 https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/384108/2013PACEcodeA.pdf
Prison Reform Trust. Accessed on 12/07/2016 http://www.prisonreformtrust.org.uk/projectsresearch/race
Richard Gott (2011), Britain’s Empire: Resistance, Repression and Revolt.
Sir William MacPherson of Cluny (1999), “The Stephen Lawrence Inquiry”. Accessed 07/07/2016 https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/277111/4262.pdf
Stopwatch, “Metropolitan Police”. Accessed 07/07/16 http://www.stop-watch.org/your-area/area/metropolitan
Sutton Trust Survey (2005). Accessed 07/07/2016 http://www.suttontrust.com/wp-content/uploads/2014/09/Extracurricular-inequality.pdf
The Guardian (06/07/2016), “Top jobs at MI5 and MI6 all held by white people”.
The Guardian (31/05/2016), ‘#SayHerName: fighting for the forgotten victims”.
The Guardian (07/08/2015), “Stop and search is a disgrace across the UK – not just in our cities”. Accessed 07/07/16 https://www.theguardian.com/commentisfree/2015/aug/07/stop-and-search-uk-rural-black-people-police
The Guardian (17/02/1999), “Facing the ugly facts”. <Accessed 07/07/2016 https://www.theguardian.com/society/1999/feb/17/guardiansocietysupplement4
Wikipedia, “2011 England riots”. Accessed 07/07/2016 https://en.wikipedia.org/wiki/2011_England_riots