A Fair Hearing?

Stephen Shute, Roger Hood, Florence Seemungal

• Publisher: Willan
• Year: 2013
• eBook ISBN: 9781134038503
• Edition: 1
• Topic: Social Sciences
• Subtopic: Criminology
• Index: Social Sciences

This book reports on research which investigates the perceptions of ethnic minorities concerning their treatment in the criminal courts. It examines the extent to which ethnic minority defendants and witnesses in both the Crown Court and the magistrates' courts perceived their treatment to have been unfair, whether they believed any unfairness to have been the result of ethnic bias, and whether this had affected their confidence in the criminal courts.

The study, carried out by the Oxford Centre for Criminological Research in association with the University of Birmingham for the Lord Chancellor's Department, involved observations of cases and interviews with more than a thousand people (defendants, witnesses, barristers, solicitors, judges, magistrates and others), and focused on courts in Manchester, Birmingham and London.

A Fair Hearing? Ethnic minorities in the criminal courts begins by showing how widely held the belief has been that ethnic minorities are discriminated against by the courts and by other agencies in the criminal justice system. It discusses the factors that contributed to this belief, including the findings of the Macpherson Report and the notion of 'institutional racism'. The main part of the book then looks at the institutional setting in which the research took place, the experience of defendants and witnesses, their views about how they were treated by the criminal courts, and the views of others involved in the court process. Final chapters in the book address the issue of sensitivity to ethnicity on the part of judges, magistrates and lawyers. It shows that attitudes and practices are perceived to have changed for the better and examines what more needs to be done to increase the confidence that members of ethnic minorities have in the fairness of the criminal courts.

Chapter 1

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Equal justice in a multi-cultural society

Perceptions of fairness

It is a fundamental tenet of justice in modern democratic societies that all persons are to be treated fairly, with equal respect, and not be subject to any form of adverse discrimination, whether direct or indirect.¹ But it is no less fundamental that people should not feel discriminated against, for perceptions may be as significant as any objective evidence of discriminatory treatment in affecting their confidence and trust in public institutions and their belief that they have been treated as full citizens on an equal basis with other citizens.

In almost no other area of public life is the perception of discrimination more damaging than in the field of criminal justice. People rightly feel particularly resentful when they believe that they have not been treated by the agencies of criminal justice with the same respect or on an equal basis with others in similar circumstances. To be subject to these agencies – even if only for a stop or a search – may be not only inconvenient but humiliating. To receive criminal punishment disadvantages, stigmatises and delivers pain in a very public way. When people believe that the police, prosecutors, criminal courts or ‘correctional’ institutions have dispensed justice unfairly, they are apt to question the legitimacy of these agencies and withdraw their allegiance from them. They are also less liable to believe that the criminal law deserves their obedience.² This is particularly true when, as in the case of minority ethnic populations, there has been a history of discrimination and disadvantage.

For all these reasons, it is no less important to tackle perceptions of unfair treatment than it is to tackle the unfair treatment itself: they are mutually dependent and reinforcing. If people are treated fairly by the criminal justice system, and if this accords with their subjective experiences, that will, in the longer term, have a positive influence on beliefs and perceptions so as to increase the confidence and trust of the population as a whole.

The research on which this monograph is based is concerned with such perceptions and beliefs held by minority ethnic citizens who have come into contact with the criminal courts. It is the first large-scale study in Britain to have concentrated on how minority ethnic defendants and witnesses experienced their treatment, as compared with white defendants and witnesses. It raises the question of the extent to which those members of ethnic minorities who felt they were not treated fairly and with equal respect by the criminal courts believed that this was due to discriminatory treatment based on their race, colour or culture.

Mounting concerns

There has been a good deal of evidence in England of differential treatment of minority ethnic people at different stages of the criminal justice process.³ Although much of the research and statistical evidence has concentrated on the use of police powers, concern has also been expressed that sentences have not been imposed equitably by the criminal courts. This concern was fuelled by the recognition that there had been an alarming increase in the number of mostly second-generation males and females of African-Caribbean origin in the prison population – an increase that could not be ignored once the Home Office began monitoring the ethnicity of prisoners in 1984. The first results of this monitoring, published in 1986, proved that African-Caribbeans were greatly overrepresented among prisoners compared with their number in the general population.⁴ This understandably gave rise to a suspicion that the imbalance could not be attributed solely to any differential incidence of offending by African-Caribbeans but must reflect a tendency for the courts to treat them with greater severity than similarly placed white offenders, by sending a higher proportion of them to custody and by giving them harsher sentences.

The matter was taken up, sometimes quite vehemently, by academic commentators, by the ethnic minority press,⁵ by members of Parliament, by influential pressure groups and finally by judicial and governmental advisory committees. Examples abound. In 1986, following the sentences handed down in Birmingham after the Handsworth riots, Peter Herbert, the Vice-Chair of the Society of Black Lawyers, accused the courts of operating a ‘blanket policy of custodial sentences for young blacks’.⁶ Similarly, in 1990, The Voice spoke of a rise in ‘[c]oncern over racism in the criminal justice system … since a stream of reports have shown that black people are more likely to receive longer sentences than white people for similar offences’.⁷ According to Sir Michael Day (then Chair of the Commission for Racial Equality (CRE)), these reports had produced a ‘widespread belief that … young Black people in particular are dealt with more harshly by the criminal justice system, and that racial discrimination may be part of the system’.⁸

At the same time, it was alleged that the substantial underrepresentation of minority ethnic persons among those who administer criminal justice in the courts was the result of discrimination against black people in the selection of magistrates⁹ and judges. One Member of Parliament declared: ‘How can black people trust the system of justice when all they ever see before them are these cloistered, geriatric white men?’¹⁰ Calls were therefore made for black lawyers to be fast-tracked into judicial appointments in the Crown Court,¹¹ where the system of recruitment was based in part on the length of the applicant’s experience as a barrister and consequently discriminated (at least indirectly)¹² against members of ethnic minorities, many of whom had only comparatively recently entered the legal profession. Indeed, at the first national conference on minority entry to the legal profession, held in June 1985, Mr Justice Richard Scott, according to The Voice, ‘slammed the legal profession … for racial discrimination against black barristers’. At the same conference, His Honour Judge Mota Singh, QC, then the only ethnic minority circuit judge in England and Wales, warned that a ‘failure to remove even the appearance of discrimination from the legal profession reduce[d] the confidence of every sector of the public in the fair administration of justice’.¹³ This pressure bore some fruit when application forms for appointments to Queen’s Counsel and to the lower judiciary began to include a question as to the candidates’ ethnic origin¹⁴ and the Bar Council approved a policy to require chambers ‘to try and ensure that at least five per cent of barristers’ are black.¹⁵

Another persistent complaint was that judges were ignorant of the culture and lifestyles of ethnic minority communities from which they were, on the whole, far distant. Referring to a case in which a Rastafarian had been asked to remove his hat in court, an influential black journalist observed: ‘[N]o-one would ask a Sikh to unravel his turban or a nun to whip off her wimple … So when a judge recently asked a Rastafarian to remove his hat in court we saw that Black culture scored zero in the respect stakes. Didn’t he know that dreadlocks – the symbol of judgement – must have the same respect as his wig’.¹⁶ Occasionally, but infamously, judges were reported as having used language – sometimes in court and sometimes in private when they presumably believed that they were among like-minded colleagues – which was widely interpreted as racist. A senior London judge, for example, was castigated for referring to black people as ‘nig-nogs’ during an after-dinner speech and then exacerbated the situation by saying that his remark ‘was not intended in any way to have any racist significance’.¹⁷ And at Southwark Crown Court, in a case involving three black men who had been jailed for robbery, a judge, after reading a probation report that had been checked by London’s probation services for ‘racist, sexist and stereotyped’ comments, was reported to have ‘expressed concern’ over why the checking was needed: ‘In 30 years at the bar and bench’, he said, ‘I have never seen a probation report which contained any remark I would describe as racist, sexist or stereotyped’. This complacent reflection was described by a spokesman for the National Association of Probation Officers as ‘a sad reflection of the judiciary’s inability to come to terms with racist issues’.¹⁸

Such sporadic reports of insensitive language and comments continued well into the 1990s. A county court judge in Liverpool in 1994, for instance, used the phrase ‘nigger in the woodpile’;¹⁹ and a Crown Court judge in Derby in 1995 told an all-white jury: ‘I have in front of me photographs of 12 Asian men, all of whom look exactly the same, which I’m sure you appreciate’.²⁰ The fact that many minority ethnic defendants were tried before all-white juries also became a focus for complaint. When four black men were found to have been wrongfully convicted by an all-white jury, The Voice argued that ‘Black jurors in such cases would bring a voice of reason to the jury room and ensure that Black defendants are judged on the evidence and not on prejudice’. The Society of Black Lawyers,²¹ along with the CRE, therefore recommended to the 1993 Royal Commission on Criminal Justice that the jury should always be multi-racial when the judge considered that race might be an issue in the trial. Although the Royal Commission did not support this as a general practice, it did recommend that ‘in exceptional cases, where compelling reasons can be argued for such a course, it should be possible for either the prosecution or the defence to apply to the judge before the trial for the selection of a jury containing up to three people from ethnic minority communities [and] to argue the need for one or more of the three jurors to come from the same ethnic minority as the defendant or the victim’.²² But even this concession was not implemented. In response, the National Black Caucus and other campaigning civil rights groups pressed the United Nations Committee on the International Convention for the Elimination of all forms of Racial Discrimination (CERD) to ensure that the UK’s criminal justice system incorporated multi-racial juries ‘to reflect the wider community’.²³ The case for multi-ethnic juries also found favour with Lord Justice Auld in his report on the criminal justice system.²⁴ As yet, these recommendations have not been implemented.

The search for empirical evidence

Several attempts were made in England in the 1970s and 1980s to study empirically the extent to which there had been unjustifiable differential treatment of minority ethnic defendants in the criminal courts. But, for various reasons – small sample size, lack of distinction between various ethnic minorities, and limited data on variables relevant to sentencing – the findings were inconclusive.²⁵ Towards the end of the 1980s, therefore, the CRE sought to obtain some more robust evidence about the extent to which discriminatory treatment might be occurring in the criminal courts and Roger Hood was commissioned to carry out the research. It was decided to base the study in the West Midlands because, outside of London, that conurbation contains the largest concentration of minority ethnic persons in the country. It was also decided to examine the sentencing practices of the Crown Court, since the bulk of the daily average population of prisons is sentenced there rather than at magistrates’ courts. Decisions relating to all minority ethnic males who had been tried at five Crown Court centres in the West Midlands in 1989 were analysed, as were decisions ...

Table of contents

• Cover
• Halftitle
• Title
• Copyright
• Contents
• Acknowledgements
• 1. Equal justice in a multi-cultural society
• 2. Researching perceptions
• 3. Perceptions of fairness: A quantitative assessment
• 4. Perceiving racial bias
• 5. Perceptions of unfairness in context
• 6. A question of confidence
• 7. The views of informed observers: court officials and lawyers
• 8. The judicial and magisterial perspective
• 9. The experiences of witnesses
• 10. A ‘cultural change’?
• 11. What still needs to be done?
• Appendix. Research on Race and the Courts
• Bibliography
• Index