For the CJS to be legitimate it must not only serve justice but it must also be seen as doing so. (Rex v. Sussex Justices, Ex parte McCarthy [1924]), if people see justice being done will they feel the system is legitimate. Discrimination threatens this legitimacy as justice cannot be done or seen due to prejudice. If people begin to question the system’s legitimacy, they are less likely to willingly engage with the system or abide by its rules which could cause more crime, leading to more discrimination.
Race is one of the main ways that the CJS is seen to discriminate against groups and people. Some groups, most notably some races, for example ethnic minority males, are overrepresented while others are underrepresented such as white males, those overrepresented are more likely to be discriminated against. Home office statistics from 2000/1 show that black ethnic groups were particularly overrepresented at most stages of the CJS. While they make up only 1.8% of the population, they make up 7.7% of all arrests, 6.2% of caution and 12.1%of the prison population. Asian groups in comparison, were shown to be only slightly overrepresented comprising 7% of the population; 4.4% off arrests, 4.6% of cautions and 2.8% of the prison population. In contrast to these ethnic minority groups, white ethnic groups were underrepresented, they were less likely to be arrested, cautioned or sent to prison. However while official statistics point to ethnic differences within the CJS, they do not demonstrate that there are ethnic differences in rates of offending. The higher the arrest rate of black ethnic groups may reflect two possible things; that these groups are more likely to be targeted by the police, or that they are the people who offend more.
The Police and Criminal Evidence Act (PACE) provides the core framework of police powers and safeguards around stop and search, arrest, detention, investigation, identification and interviewing detainees. The police can stop and search where there’s ‘reasonable suspicion’ of wrongdoing. Results from the British crime survey showed that ethnic minorities more likely to be subject to ‘intrusive searching’ Criminal Justice and Public Order Act 1994, showed that searches can take place without suspicion if violence is anticipated, or for weapons. Figures from 2003-04 show that around 750,000 searches took place throughout the year (Home Office 2005). The figures show that black ethnic minorities are 6.5 times more likely to be stopped and searched than whites, while Asian ethnic minorities are only 2 times more likely to be stopped and searched. Figures have been similar in past years. It seems that figures will not change much in the future unless changes are somehow made.
Within the CJS, discrimination based on race is shown within police custody as well as throughout the rest of the prosecution service. For example while in custody the amount of retention sample taken varies based on ethnicity. CJA2003 allows police to retain DNA samples even if suspect is released without charge, figures show, 37% of black males have a sample on police DNA database, 13% of Asian males, 9% of white males (Randerson 2006). When looking at the rates of case termination by crown prosecution service, Philips and Brown (1998) showed that case termination numbers were highest for ethnic minorities compared to whites. This suggests weak cases involving ethnic minorities are routinely passed to the crown prosecution service. The Denman Report 2001 also showed that there were higher rates of acquittal amongst ethnic minority defendants, suggesting more weak cases involving ethnic minorities still make it to court that shouldn’t. When look at courts sentencing, Hood (1992) found that black people are 5 times more likely to be given custodial sentence than white people. Also the duration of custodial sentence on averages, show that blacks have to serve up to 3 months longer than whites, for the same offence, and Asians, up to 9 months longer. At all of these stages discrimination is shown against race.
There have been many attempts at looking into racial discrimination in the CJS. The Scarman Report in 1982 looked into Brixton Riot (April 10-11 1981). This report emphasised how the riots were essentially an outburst of anger and resentment by young African Caribbean’s against perceived harassment by the police. Complex socio-economic factors created a disposition for rioting. Riots were spontaneous, not planned. This leads to loss of confidence in and mistrust of the police. This illustrates the vicious cycle with the system which will continue until discrimination is stopped. The young African Caribbean’s within Brixton will have felt discriminated against due to the ‘harassment’; people begin to question the system’s legitimacy. As previously mention this makes them less likely to willingly engage with the system or abide by its rules which is likely to lead to more crime, and thus to more discrimination.
The legitimacy of the police and their competence has been questioned many times. One such time is in the Macpherson report 1999 which concerned a police investigation in the murder of Stephen Lawrence in 22 April 1993 which was said to be an unprovoked attack as Lawrence and his friend Brooks waited for a bus in Eltham. As of yet no one has been convicted of the murder. There was a Public inquiry into police handling of case ordered by Home Secretary Jack Straw in 1997.
The Macpherson Report found the Met Police’s investigation ‘incompetent’. They failed to administer first aid at the scene, follow obvious leads, they treated Lawrence’s friend as a suspect, denied racist motive for murder and used inappropriate language. They also handled Lawrence family insensitively and patronisingly, this shows poor leadership by senior officers and furthermore ignored recommendations of Scarman’s report in 1982. Macpherson therefore concluded that institutional racism in the police force is widespread. It not only challenged the dominant picture of the CJS as unbiased, but also raised the profile of another question. Are ethnic minority groups more likely to be victimised and discriminated against than the white majority ethnic groups? From lots of studies such as ‘The Secret Policeman’ the answer would seem to be yes.
The Secret Policeman, which was a BBC documentary, 21 October 2003, it was recorded undercover at a police training centre in Cheshire and filmed police in KKK headgear and recorded as stating ‘I would kill an Asian if I could get away with it’, ‘Hitler had the right idea but went about it in the wrong way’ and that ‘Stephen Lawrence deserved to die and his parent are spongers’. This showed that the police discriminate against ethnic minorities in way that is cruel an inappropriate.
There have been many attempts at tackling racial discrimination in the CJS. The Scarman Report (1982) found that Institutional racism did not exist in police, it is just the case that some individual officers are racist or known as ‘bad apples’. From the report many recommendations were produced in order to try and deal with the events that took place such as appointment of more police from minority communities, establishment of police-community liaison groups, adoption of policies to reduce ethnic unemployment, and the introduction of new police rules to make racial discrimination a disciplinary offence.
The Macpherson report agreed partially with the earlier report of Lord Scarman that the police do not ‘knowingly as a matter of policy, discriminate against black people’ (Scarman 1981). However, it did not accept Scarman’s view that ‘institutional racism does not exists. Macpherson made 70 recommendations to help get rid of institutional racism. For example removing the double jeopardy rule and appointing more ethnic minority officers. Developments, in 2006, after these recommendations showed Brooks being awarded compensation for police’s handling of his complaints and showed new allegations of police corruption. As a result police discrimination training and lessons are now required before entering the police force, in order to try and cut institutional racism and discrimination.
Overall it is clear to see that discrimination is a big problem in the CJSand legitimacy of the system is threatened by this racial discrimination. Institutional racism is still present and people are still being judged by the colour of their skin. Home Office, 2006 stated that “Disproportionality continues to be a key issue meriting urgent investigation”. Therefore discrimination within the CJS is inevitable no matter how much is done to try and stop it, discrimination will never be gotten rid of completely, and will always be present in relation to race. The overrepresented black ethnic minorities are clearly discriminated against and although people have tried to solve this problem such as Lord Scarman and Macpherson through there recommendations, the problem still exists. It seems the only easy way to stop discrimination is by removing the discretionary powers of the CJS. This will never be possible. Another option would be, to remove discrimination is by somehow changing people opinions of ethnic minorities, this is a near impossible task. Therefore we are left with the option of trying to control discretion via some sort of monitoring system accessed by people from different ethnic backgrounds, but only time will tell if such an approach will work, even a small reduction in the amount of discrimination within the system will be extremely beneficial.
Reference
Denman, S (2001) The Denman Report: Race Discrimination in the CPS, London: CPS
Gelsthorpe, L. and Padfield, N. (eds) (2003) Exercising Discretion: Decision-making in the criminal justice system and beyond. Cullompton: Willan
Home Office (2000/01) Statistics on Race and the Criminal Justice System 2000/01, Sec 95 Publication, London: Home Office
Home Office (2005) Statistics on Race and the Criminal Justice System 2004, Sec 95 Publication, London: Home Office
Home Office, (2006) Race and the Criminal Justice System, Sec 95 Publication, London: Home Office.
Hood, R. (1992) Race and Sentencing: A Study in the Crown Court. Oxford Clarendon Press.
Hudson, B. (1996) Understanding Justice, London: Sage
Macpherson, Sir W. (1999) The Stephen Lawrence Inquiry: Report of an Inquiry by Sir William Macpherson of Cluny, Cm 452, London: TSO
Philips, C and Brown, D (1998) Entry into the Criminal Justice System: A Survey of Police Arrests and Their Outcomes, Home Office Research Study No. 185, London: HMSO
Randerson, J (2006) ‘DNA of 37% of Black Men Held by Police’ The Guardian, 5 January 2006
Scarman, Lord (1981) The Brixton Disorders, Report of an Inquiry by the Rt. Hon. The Lord Scarman O.B.E., Cm 8427, London: HMSO.