Critically assess the extent to which discriminatory practices within the criminal justice process operate against ethnic minorities.

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Issues in Criminal Justice

Critically assess the extent to which discriminatory practices within the criminal justice process operate against ethnic minorities.


In order to ‘critically assess discriminatory practices within the criminal justice process operate against ethnic minorities’, we must first outline the criminal justice process and define the terms ‘ethnic minorities’ and ‘discriminatory practices’.  Whilst the author acknowledges the debate between the terms ‘Criminal Justice System (CJS)  and ‘Criminal Justice Process’, for the purpose of this essay these terms will be used interchangeably and refers to a series of phases through which a person charged with a criminal offence must go, in order to be convicted.  

The CJS will be discussed in further depth later, now let us determine what constitutes an ethnic minority group.  In the United Kingdom, where the indigenous White population forms the majority, a good working definition is that of individuals with a cultural heritage distinct from the majority population (Manthorpe & Hettiaratchy, 1993).  Bhugra & Bahl (1999), in their discussion of the issues involved in the definition of ethnicity, make the point of excluding national minorities such as the Scottish, Northern Irish and Welsh who, despite their equal rights, have their distinctive cultural traditions and values that are generally respected.  However, as far as the Commission for Racial Equality (CRE 2007) is concerned the phrase 'ethnic minorities' is an umbrella term, covering all the characteristics of a 'racial group', as well as the religious and cultural bonds that are seen as defining Muslims, Rastafarians and other groups that may not have formal protection under the Race Relations Act 1976, which defines an ethnic minority as ‘a group of persons differentiated by colour, race, nationality, or ethnic or national origins.  The CRE therefore determines that an individual is said to belong to an 'ethnic minority' as being anyone who would declare themselves as anything other than 'White British'.  This generic and at times, simplistic definition is used by the Office of National Statistics (ONS) when compiling the Census and by the English and Welsh Police Forces when defining individuals.  This means that, across England and Wales, 12.5% of the population are ethnic minorities, according to the 2001 Census (ONS 2004).  It is this definition that will be used for this essay and having now outlined what is meant by an ‘ethnic minority’ we will look at the CJS to gain an understanding of the potential trajectory of an offender/accused person.

The CJS or process is a series of phases which a person charged with a criminal offence must go through in order to be convicted.  Cavadino and Dignan (2002: 1) label the criminal justice process as:

… a term covering all those institutions which respond officially to the commission of offences, notably the police, prosecution authorities and the courts.

So is it a ‘system’ or ‘process’?  This has been debated by numerous authors, which generally focus on the reality that each part or agencies involved in the process are interdependent and inextricably linked. (Pullinger 1985; Feeney 1985)  Decisions and policies are made from within or outside each of the parts of the process, which although designed to have an immediate constructive effect at the location of action may have secondary or tertiary effects on other elements of the system, whether this be cost, perception of failure or over-load.  Harries (1999) scrutinized the monetary cost of the below theoretical example, but the lessons identified can be said to be the same in effecting the process.  The example looked at the effect if a reduction in police cautioning forms part of a new policy initiative, more suspects may be prosecuted instead.  The next probable effect was more prosecution paperwork for the police and Crown Prosecution Service, more legal aid bills to be paid and more court proceedings.  Subsequently, upon conviction, many offenders would receive a community sentence (supervised by probation services) or fine (collected by magistrates’ courts).  The effects do not end there.  Some offenders may default on their fines, others may breach the terms of their community penalty.   On return to court, some may be re-sentenced and a few may end up in prison.  Thus, the consequences of the initial action could have repercussions throughout the CJS.  At the core of line of reasoning for either case is that all phases are interconnected, many critics (for example Cavadino and Dignan, 2002) posit that due to the different agencies having competing objectives and unaccountable flexible powers, that the process cannot be regarded as a system because it is dysfunctional with Feeney (1985) arguing that the divergence of policies shown by agencies in dealing with various issues means that the criminal justice process is ill-coordinated and should not be categorised as a system despite this in England and Wales it is referred to by the Home Office in numerous documents as  the Criminal Justice System of England and Wales (CJS), probably more for political and historical reasons rather than for technical or academic ‘correctness’ and will as such be referred to.

The CJS comprises several separate agencies and departments which are responsible for various aspects of the work of maintaining law and order and the administration of justice.  The Police Service is seen as the gateway into the CJS as this is the first agency that an accused persons will normally interact with (albeit a small minority that may initially be detained by other specific organisations, e.g. the HM Customs, Security Services or Serious Fraud Office, although most of these agencies act in conjunction with the Police), the Crown Prosecution Service (CPS) which reviews the evidence gathered before deciding if there is enough evidence to probably secure a conviction and that it is the public interest to, this may actually occur after an individual has been remanded in custody by the Magistrates Court or bailed by either the Police or the Magistrates Court.  Although, since April 2000, when the CPS has based advisors in Police Stations to recommend the appropriate subsequent course of action by the CPS if a person is charged , as such the CPS is seen as a ‘an independent check on prosecutions’ (Crawford, 1996: 335) to the Police Service by potentially discontinuing a case or reducing the charge earlier in proceedings.  The Court Service comprises the Magistrates Court, through which all individuals must be ‘processed’ to continue their trajectory through the CJS, the accused can be dealt with by the Magistrates Court or for more serious offences the accused is referred to the Crown Court for trial or sentencing if they have already admitted their guilt.  The Appeal Court is also part of the Court Service, although all cases will have passed through the previous two levels of judiciary before they will be considered by the Appeal Court.  If the accused is convicted and sentenced, the next stage of the process will normally involve either the Prison Service or the Probation Service who will carry out the Courts sentence in accordance with current Government policies for the punishment and rehabilitation of offenders.  Further agencies involved in the process include the Criminal Defence Service, the Criminal Injuries Compensation Authority and other victim and witness care services, although it should be noted that this is not an exhaustive list.  The Home Office, Attorney General’s Office and Lord Chancellor’s Department are the three main government departments with responsibility for the CJS, providing the policy framework, objectives and targets, funding development and support functions.  The below diagram shows the ‘trajectory’ or flow through the CJS and illustrates the options available at each stage.  

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We have looked at the CJS from a purely systematic approach without referring to racial factors at the various stages that can influence the individual’s trajectory through the CJS, before examining this area we are going to look at racism and its different facets that apply.  The term racism has its origins in the 1920’s and came into common usage in the 1930’s to describe theories used by the Nazis to justify their persecution of Jews (Fredrickson 2002).  While the word race is commonly used to refer to different ethnic origins, there is no scientific basis for this since ...

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