What do you regard as the current issue of greatest concern in respect of EITHER the criminal justice system OR the civil justice system of England and Wales? What argument would you put to the Government to persuade it to address your concern?

The combined findings of the inquiry and CRE fact sheet are clear. In several different areas of the CJS ethnic minorities suffer a disadvantage. The first of these areas is as victims. The CJS is responsible for protecting the public against crime, yet ethnic minorities are more likely to be a victim of crime (44%) than white people (39%) in both household and personal offences. Ethnic minorities were also victims to the highest number of homicides where no suspect was found (40%) compared to white victims (10%).

As defendants or suspects ethnic minorities are far more likely to be stopped and searched; black people are five times more likely to be searched once stopped than white people. Statistics also show that ethnic minorities tend to be arrested on weaker evidence; in only 56% of black arrests compared to 63% of white arrests was there sufficient evidence for conviction. This not only leads to a waste of resources used in their prosecution but also reduces the public’s confidence in the CPS. There is also evidence of longer and harsher sentencing in a large number of courts which can only be attributed to discrimination; in 5 West Midlands Crown Courts 5-8% more custodial sentences were given to black defendants after other factors were taken into account. 

As prisoners ethnic minorities face further discrimination as was made apparent during the report on the racist murder of Zahid Mubarak in Feltham Young Offenders Institute (YOI) by his cell mate in March 2000. The CRE launched an investigation into the Prison Service under suspicion that the murder could have been avoided, but was not, due to unlawful discrimination. The report found 15 acts of specific discrimination within Feltham YOI and concluded that the Prison Service was guilty of unlawful discrimination. The CRE report mentioned above also specified problems within the prison service such as the grossly over represented black prison population (1,249 per 100,000 population) compared to white inmates (only 176 per 100,000 population). When civil liberties and basic human rights are affected by discrimination something must be done.

Employees also suffer discrimination in the CJS. Following persistent advice and warnings from the CRE to the CPS in regards to its race equality practices it was announced that under their powers contained in s 48 of the Race Relations Act 1976 the CRE was to carry out a formal investigation into the CPS, this would result in the publication of the Denman report. This report centred on a number of recent successful challenges brought against the CPS in employment tribunals since 1995. In two cases the CPS was found to be discriminating (directly and indirectly) against its staff on racial terms. In the case of CPS v MRS M T BAMIEH the tribunal awarded “one of the highest awards for injury to feelings ever to have been made by an employment tribunal”. The Denman report found the CPS to display institutional racism, it found “[ethnic minority staff] are seriously under-represented in both the higher administrative grades and the higher lawyer grades.” It also found that “A significant number of ethnic minority staff have experienced race discrimination at one time or another within the CPS”31  

Recent Attempts at Reform

Despite some recent improvement, racism in CJS and society remains a problem as was made apparent by the Queens recent Christmas speech which centred wholly around the notion of tolerance.

There have been several attempts by Government and Parliament to stamp out (institutional) racism in its CJS including the Race Relations Amendment Act 2000 which removed any doubt from the legality of institutional racism:

19B. - (1) It is unlawful for a public authority in carrying out any functions of the authority to do any act which constitutes discrimination.

Despite this, there is still considerable racism in the CJS. Julia Smith recently quit the Metropolitan Police Authority (MPA) as leader of the Race and Diversity Unit in 2004 over claims of discrimination. Her job was to stamp out racism in the MPA, yet she won “close to £100,000” in an out of court settlement shortly before the court hearing. It seems the MPA are unable to be racially tolerant at such high levels and in departments whose sole goal is to stamp out discrimination.

        Racism still exists in the courts, Judge Brimelow of Chester in Wrexham county court has been criticised by Lord Falconer after his openly racist comments during a case in December 2004. The judge only received a warning. More needs to be done to ensure people with such authority are not racist, when public figures with such authority and power to affect the lives of defendants may be influenced by racism, serious doubts will arise in the public view of the CJS. A recent publication by the Department for Constitutional Affairs (DCA) indicated one in five black defendants believed their unfair treatment in the Crown Court was due to their ethnicity. The report also showed that 30% of black lawyers said they personally witnessed incidents in court which they regarded as racist.

        Prisons have not faired much better, the over representation of black prisoners is growing, since 1997 the black prison population has risen by 57%. Now, for every young black person in university there are two in jail.34 In October 2003 the CPS published a study showing that bail was more likely to be refused to African Caribbean’s (13.2%) than white men (9%). Clearly there is still a lot to be done.

        The current employment figures show that although ethnic minorities are increasingly becoming a part of the legal system at lower levels, senior positions both in the judiciary and other departments are still mainly occupied by white employees. Out of 1074 QC’s in 2001, only 14 were from ethnic minorities despite 9% of the barrister from which they are chosen being from ethnic minorities. There still remains not a single ethnic minority person as a Lord of Appeal in Ordinary or Lord Justice of Appeal. There is also only 1.56% ethnic minority circuit judges.

        In the recent case of A (FC) and others (FC) v. Secretary of State for the Home Department Lord Hoffman pointed out that the Anti-terrorism, Crime and Security Act 2001 “is incompatible with articles 5 and 14 of the European Convention insofar as it is disproportionate and permits detention of suspected international terrorists in a way that discriminates on the ground of nationality or immigration status.” Whether this was indirect discrimination or a mistake the various stages in parliament should have filtered out such blatant discriminatory legislation. The CJS is powerless to stamp out discrimination if the judiciary are forced to follow legislation which is discriminatory.

Solutions

Several recommendations have been made in the public and CRE inquiries mentioned above, the majority of these are specific to the area in which they criticise. “If racism is to be eliminated from our society there must be a co-ordinated effort to prevent its growth. This goes well beyond the police service.” The work of the CRE has undeniably had a positive impact in not only making the public aware of the problems within the CJS but also in providing support and guidelines for future improvement, it’s powers need to be increased to enable it to intervene and enforce its policies where CJS departments are reluctant or slow to do so. As the police commissioner himself said in the Stephen Lawrence Inquiry “nothing short of an overhaul is required”.

The underlying problem with racism is the fact that it is often subconscious or indirect, making it far harder to detect and treat than direct racism. Most direct racism has been stamped out (with exceptions such as Judge Brimelow becoming rare), openly racist people in any government department stand little chance of keeping their positions. The European Court of Human Rights acknowledges that you can “not change racist views overnight” however, and even if racism is abolished future generations need to be educated in order to prevent it reoccurring, this was the major recommendation of the Stephen Lawrence Inquiry.

Further employment of ethnic minorities should help re-establish public confidence in the CJS while promoting other employees to be racially tolerant. If more employees are from ethnic minorities then not only will people become less inclined to display discrimination but if they do so it is more likely to be stopped before it is adopted as acceptable by certain groups as was found to be the case in the police in their dealing with the investigation of Stephen Lawrence.

With so many possible issues in the criminal justice system there is surely no other which is more likely to reduce public confidence and the ability of the CJS to achieve its aims. “Democracy and the rule of law rest alike on an abstract, but fundamental, notion of equality.” Without popular public support not only will the police find their job far more difficult but the basic rule of law in England and Wales will become weaker. Dicey’s definition of the rule of law included the notion of equal treatment: “equality before the law, or the equal subjection of all classes to the ordinary law of the land”.

When the very people who are meant to bring fair and equitable justice to all are found to act in an unlawfully discriminatory way on several separate occasions there can be very little hope for discrimination to be abolished in society as a whole. A Criminal Justice System should not and can not exist alongside discrimination, its abolition must be a priority for the departments accountable for it.

                                                                        Word Count: 2488

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Bibliography

Websites

1.         Statistics on Race and the Criminal Justice System - 2003

A Home Office publication under section 95 of the Criminal Justice Act 1991

Summary:

From minorities point of view:

2.         Criminal Justice System Website:

3.         Crown Prosecution Website:

4.         Analysis: Race poll and criminal justice:

5.         A Review of the Criminal Courts of England and Wales by The Right Honourable Lord Justice Auld:

6.         Commission for racial equality website:

7.         CRE - Criminal Justice in England and Wales (factsheet) -

8.         CRE – Criminal Justice Agencies:

9.         CRE -  Race Equality in Prisons 2003

        

10.         DCA report - Ethnic Minorities in the Criminal Courts - Perceptions of Fairness and Equality of Treatment:

11.         Commission on Women and the Criminal Justice System ‘Man-made’ justice fails women:

12.         Report on above: (Guardian):

13.         TACKLING DISCRIMINATION IN THE CRIMINAL JUSTICE SYSTEM:

14.         Discrimination row ends Met woman's crusade against racism:

15.         THE STEPHEN LAWRENCE INQUIRY February 1999: 

        Summary:

16.         The Steven Lawrence BBC Special Report:

17.         Home Office – Police Race Relations:

18.         CPS – The Denman Report:

19.         BBC: Lawrence: Quotes at a glance:

20.         CRE – The murder of Zahid Mubarek:

21.         The murder of Zahid Mubarek:

22.         The Criminal justice System Factfile:

23.         Fawcett Society - Interim Report on Women Working in the Criminal Justice System

        

Journals

31. Racial discrimination in sentencing: a study with dubious conclusions.

Tamar Halevy.

[Criminal Law Review]

32. Race, crime and injustice? Strip search and the treatment of suspects in custody. * Good

Tim Newburn.

Michael Shiner.

Stephanie Hayman.

Brit. J. Criminol. 2004, 44(5), 677-694

[British Journal of Criminology]

33. New evidence of discrimination in the youth justice system.

Y.J. 2004, 4(2), 147-148

[Youth Justice]

***Discusses Statistics on Race and the Criminal Justice System published by the Home Office under the Criminal Justice Act 1991 s.95.***

34. Racism in the system.

Makbool Javaid.

Legal Action 1994, Mar, 8

[Legal Action]

Cases

35. Crown Prosecution Service v Clarke 2002 WL 1446060 2002 WL 1446060

36. CROWN PROSECUTION SERVICE v MRS M T BAMIEH (1999) LTL 17/5/99 (Unreported elsewhere)

37. Sander v United Kingdom (34129/96)  *

38. R. (on the application of European Roma Rights Centre) v Immigration Officer, Prague Airport [2004] UKHL 55 Times, December 10, 2004 Independent, December 17, 2004  2004 WL 2790691

39. A (FC) and others (FC) (Appellants) v. Secretary of State for the Home Department (Respondent) [2004] UKHL 56

40. Sutherland v United Kingdom (25186/94) (1997) 24 E.H.R.R. CD22 *

Legislation

41. Race Relations Act 1976

42. Sex Discrimination Act 1975

43. Race Relations (Amendment) Act 2000

44. Anti-terrorism, Crime and Security Act 2001

45. Terrorism Act 2000

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Research Trail

*        Item number refers to numbers in bibliography

1        Rating out of 5

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