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) 1 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. 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 there is quite obviously only one race – the human race.
The use of race to classify certain people and the process of racism is invariably institutional and political (Gilroy 1992). For example, at different times in our recent history the term Black has been used, for example, to describe people of African or Indian decent. More recently, however, the term is used most to describe only people of African decent. Allport (1958) defines racism as an: “… antipathy based on faulty generalization. ” Seeking a more precise distinction between racism and ethnic prejudice, to ensure its particular nature is not lost among academic arguments over definitions2, meanwhile Fredrickson (2002) concludes that racism is a belief that there are differences between particular ethnic groups that cannot be changed.
If, on the other hand, assimilation is seen as acceptable then what exists is not strictly racism but ethnic prejudice – which is religious and cultural intolerance, but not ‘biological’3 prejudice: To attempt a short formulation, we might say that racism exists when one ethnic group or historical collectivity dominates, excludes or seeks to eliminate another on the basis of differences that it believes are hereditary and unalterable. However, tight definitions such as this are unlikely to be acceptable to many writers and observers, because they do not allow for the everyday complexities of dominant group prejudice. To provide just one example: some White perpetrators of institutional stealth racism will undoubtedly believe that there are certain Black and White differences that are hereditary and unalterable while some of their colleagues do not, but are nonetheless culturally intolerant. Another explanation (Gilroy 1992) is geared to such complexities: “… racial meanings can change, can be struggled over.
Rather than talking about racism in the singular, analysts should therefore be talking about racisms in the plural. ” From all of this we can conclude that it is important to avoid perceptions of the inevitability of racism as stemming from some kind of weakness in human nature, because, as the background to the current situations reveals, the idea of racism and its dynamic characteristics has evolved and is still evolving (Bowling 1993; Santas, 2000; Mann et. al. 2004). Furthermore racial discrimination has been divided into two separate but related strands defined as direct and indirect discrimination as identified within the Race Relations Act 1976.
Indirect discrimination was further defined through Race Relations Act 1976 (Amendment) Regulations 2003; whereby previously, indirect discrimination occurred when an institution applied a ‘condition or requirement’ which appeared to affect everyone equally but which in fact put people from a particular racial group at a disadvantage. The new definition (among other changes) replaces the phrase ‘condition or requirement’ with ‘provision, criterion or practice’ so far as racial groups based on the relevant grounds are concerned. This means that, in addition to the existing ‘formal’ practices, more ‘informal’ practices are now more likely to be covered by the Act and there will be more circumstances in which claims of indirect discrimination can be brought. Direct discrimination is defined as when a person treats another less favourably based on their race.
The majority of cases of direct or indirect discrimination are raised in connection to employment, however it has been argued by Fitzgerald (1993) and others including Hood (1992) that both forms of discrimination are present within the CJS at its various stages, and having now looked at and legally defined direct and indirect discrimination we will attempt to identify such practices focusing on the Police Service, in relation to other agencies. The Scarman Report (Scarman 1981) into the disturbances in Brixton concluded that there were so called racist rotten apples in the police service, although Lord Scarman did not conclude that institutional racism existed. That was overturned following the inquiry into the investigation of the murder of the Black teenager Steven Lawrence, and its findings, published in the Macpherson Report (Macpherson 1999), and otherwise known as the Lawrence Inquiry, that institutional racism exists in the Metropolitan police service.
As a consequence of the Lawrence Inquiry, the British government responded with amendments to the Race Relations Act 1976. These changes included a duty to promote race equality and apply to a wide range of public authorities. Having also accepted Macpherson’s findings of the existence of institutional racism within the Metropolitan Police, and its 70 recommendations, the Home Office published a ground breaking report entitled Dismantling Barriers (Home Office 1999). As well as creating a duty for chief constables to support and promote support networks such as Black Police Associations (Holdaway and O’Neill 2004), the report also set targets for recruitment, retention and progression of both minority ethnic police officers and police support staff.
The number of police officers in England and Wales is currently in the region of 138,000 and while some seven percent of the general population is comprised of BME citizens only three percent of the total in all the 43 police forces are minority ethnic officers Recruitment of representative numbers of officers and support staff from economically disadvantaged minority ethnic communities into the police services is a key area identified for action in a Home Office report by Sutton, Perry, Parke and John-Baptiste (Sutton et al 2006). The issue of minority ethnic police recruitment, employment and progression is clearly important, and also complex, and should, arguably, be at the heart of any social cohesion based prejudice reduction policy making. Focusing upon the needs of minority ethnic police employees, and the needs of the police to recruit and retain more of them, also keeps the important issue of institutional racism on the policy agenda. Police officers arrest and prosecute those from disadvantaged communities at a disproportionate level, even more so if they are Black or Asian.
So clearly, equality in policing the people is central to ‘race relations’ issues in any ethnically diverse society. Recruiting, retaining and promoting representative numbers of minority ethnic officers into what is currently a police service dominated by a White ‘male macho culture’ (Waddington 1999) is a necessary part of achieving this. Whilst Ashworth (1998), Reiner (2000) and Ainsworth (2002) identify a ‘cop-culture’, that is the working culture of the police which is identified as having evident characteristics such as racism and sexism, intrinsic conventionalism and the stereotyping of particular groups which noticeably affects how police officers view the world.
However, through the support and platform provided by Black Police Associations more minority ethnic officers and support staff are able to challenge, educate against and change institutional racism within police services and within police work life. The Police Service is the gateway to the CJS, with a few exceptions, therefore it is important to look at the factors that affect the entrance of an individual into the ‘process’. One of the most important factors as indicated by Fitzgerald (1993) is that of discretion, which is not only evident within the Police Service and its dealing with individuals but is exhibited at every stage of the CJS and will therefore be regularly revisited. At its most acute, discretion can be uncontrolled thereby indicating an absence of any kind of constraint or regulation.
In reality restrictions do exist with Davis (1971) identifying a ‘structured discretion’ with legal discretion usually structured in two approaches. Firstly by the use of conditions such as ‘reasonable suspicion’ for arrest which is pertinent to the Police Service; whilst ‘a realistic prospect of conviction’ for prosecution is relevant to the CPS; and ‘proof beyond reasonable doubt’ for conviction within the Judiciary. Secondly by limiting the level at which discretion is implemented, for instance, by restricting such power to particular organisation or individuals. An example is the limitation, under PACE, that only officers of the rank of superintendent or above can authorise the detention at the police station of a suspect without charge beyond 24 hours.
The concept of ‘reasonable suspicion’ which is so important to the police’s use of stop and search and arrest has no legislative definition. As a result, the law is insufficiently framed and allows that random and possibly discriminatory use of power (Sanders and Young, 2006). It also gives the police latitude to use discretion as whether or not to stop and search and/or arrest someone. The decision may be based on the type of offence, offence priorities or the way people are acting, victims’ views, whether there is enough evidence and so forth. Essentially, the discretion afforded to individual police officers allows them ample room to make an arrest or not on the basis of their preferences (Sanders and Young, 2006).
Despite this, research evidence (Shapland and Vagg, 1988; Stanko, 1985) suggests that even in relatively serious situations arrest is less usual than no formal action. There is considerable evidence that the police use their powers of stop and search against minority ethnic groups and in particular Black people, with Scarman (1981) identifying this abuse of stop and search as a major contributory factor to the Brixton Riots. Furthermore there is substantial evidence that Black people are more likely to be stopped and searched than White or Asian people (Willis, 1983; Reiner, 1993; Statewatch, 1995; Macpherson, 1999; Fitzgerald, 1999 and MVA and Miller, 2000).
More recent examples are Rowe (2004), who citing Home Office information, illustrated that during 2001-2 the police in England and Wales carried out stop and searches on 13 Whites per 1000 of that population, comparatively 38 Asians and 106 Blacks were stopped and searched. Rowe separated the figures for the Metropolitan Police Service which were quoted separately, with 18 Whites, 54 Asians and Blacks at a rate of 132 per 1000 population and the Home Office (2006) published figures for 2004-2005 showed that Black were 6 times more likely to be stopped and searched than Whites and comparatively Asians are twice as likely to searched than Whites.
The reasons for variations within forces at the divisional level has been identified by Mayhew et al (1989) with discretion and various pressures, whilst Jefferson and Walker (1992) and Willis (1983) illustrated the different usage of stop and search between forces, with provincial forces less likely to use stop and search compared to metropolitan forces has been shown. There is considerable evidence that Black people do feature disproportionately in the statistics, with such findings often explained by prejudice and racism, however Lea and Young (1982, 1984, 1993) suggest that young Black people are more likely to be involved in criminal activity because of their relative economic situation in society, which coupled to the police power of discretion and direct and indirect discriminatory practices probably accounts for the disparity shown.
There is limited insight into the circumstances surrounding arrests, it is though broadly agreed that the main factors influencing if an arrest is made are police policy and practice, public information and offence type. There is fragmentary evidence that shows that there is a bias against ethnic minority groups and in particular Blacks, in 1977, 4 per cent of population of the Metropolitan Police District were Black whilst they accounted for 12 per cent of arrests, in 1987 the relevant figures were 5 and 18 per cent. Significantly though age was identified as a substantial factor, with 50 per cent of arrested Black people were aged between 10 and 20 years old (Home Office, 1989).
More recently figures published show that Black people are 3 times more likely to be arrested compared to Whites (Home Office 2006), which it is argued is affected by the three categories of arrest. Firstly, subsequent to a suspect being stopped and searched under PACE, which accounted for 10 per cent of arrests in 1997-8 (Sanders and Young, 2006) which had declined from 17 per cent in 1986, despite a 10-fold increase in stop and searches during the same period. According to Rowe (2004) recent figures show a decline in numbers being stopped and searched, yet an almost constant arrest rate which includes a continual over representation of ethnic minority groups.
Sanders and Young (2002) highlight the propensity of police officers to seek ‘incongruity’, for example the presence of an ethnic minority in a predominantly White or vice versa as shown by Jefferson et al. (1992: 138-40), argued that ‘arrest rates are based on where suspected offenders lived not where offences took place’. Secondly, the police target perceived problem areas; however, it has been shown that offences not actually targeted by the police are often are the reason for the arrest. Thirdly, arrests are made after a ‘crime’ is reported to the police by a victim or witness and here there is some degree of evidence that White victims or witnesses are more likely to report an incident if they perceive the assailant to be Black (Stevens and Willis 1979; Carr-Hill and Drew, 1988:40-3).
The view that the latter type of arrest shows bias is countered by highlighting that the police are only acting on information given to them by the public, which in turn can be countered by stressing that it is the police that use their discretion to determine which incidents are recorded as crimes and investigated; all this gives potential for stereotyping and either direct or indirect discrimination. Therefore having shown that as a proportion of population ethnic minorities are over-represented in the arrest data, we will now look at what happens to them after arrest. After arrest, the next stage is that an individual may be charged, cautioned or have their case discontinued (either before or after charging).
There is conflicting research into the affect of race on the likelihood of being cautioned (Farrington, 1981 versus Landau, 1981 and Landau and Nathan, 1983); however, Phillips and Brown (1998) and Jefferson and Walker (1992) show that Black people (in particular juveniles and more specifically African Caribbeans) are less likely to receive a caution than Whites, although Asians are more likely to, therefore it would seem that factors other than race are important, although there still remains the unanswered question as to why African Caribbeans have a tendency to plead not guilty, which immediately precludes them from being cautioned. Therefore it could be argued that the ‘process’ indirectly discriminates against those that plead not guilty, this plea can also affect the remainder of an offender’s trajectory through the system, be it whether they are initially remanded in custody through to the sentence they receive if found guilty (Hood, 1992:182) and then it can continue with the treatment they receive in prison, where their categorisation depends in part on their admitting their guilt.
The next hurdle for the individual who has been charged is that on their first appearance at a magistrates’ court a decision is made as to give the individual bail or remand them in custody until their trial, this decision should be made on factors which include the seriousness of the charge, prior behaviour of the individual (both convictions and any pattern of absconding or failing to reappear) and that the individual has a ‘current’ address. It has been shown by Bowling and Phillips (2002: 170) that this decision has significant implications, as those remanded have a increased likelihood of receiving a custodial sentence after being tried in both the magistrates’ court (Jones, 1985) and the Crown Court (NACRO, 1990), however this could be linked to the seriousness of the offence rather than that they have been remanded in custody.
However, Brown and Hullin (1993:107) showed that in 1990, 17 per cent of remand prisoners were from ethnic minorities, compared to the 15 per cent of sentenced prisoners, this coupled to the evidence that 7. 5 per cent of African Caribbeans and 7. 2 per cent of Asians were found not guilty after being remanded, compared to only 3. 9 per cent for Whites suggests that a disproportionate number of innocent ethnic minorities are remanded, which may be accounted for by developments at the stages of cautioning and charging. There is little accurate corroboration on the effect of plea, but the current studies indicate that African Caribbeans are more likely to plead not guilty than Whites (Walker, 1988, 1989; Fitzgerald, 1993: 26) and is substantiated by Walker et al. 1990) and Moxon (1988) in the context of Crown Courts and by Shallice and Gordon (1990) for the magistrates’ courts, with Walker (1989) arguing that it is emphasized in the Crown Courts.
Furthermore, a defendants plea has significant consequences in relation to a subsequent sentence, because those that initially plea not guilty and continue with that plea until they are found guilty automatically lose their right to sentence discount. It has been argued (Hood, 1992) that because evidence shows that African Caribbean defendants are predisposed to pleading not guilty which has been ignored by policy makers that this is indicative of a systemic indirect discrimination.
Subsequent to being found guilty there is little and at times contradictory evidence as to racial or discriminatory effects on sentencing. However, Hood (1992) drew attention to both direct and indirect discrimination; which crucially he concluded was most likely to happen when practioners have discretion in their sentencing offences of intermediate seriousness. There is no evidence of blanket discrimination; however Hood called for a review under section 95 of the Criminal Justice Act (Hood and Cordovil, 1992: 37) because a disproportionate number of ethnic minorities plead not guilty which disqualifies them from any sentencing discounts and is therefore indirect discrimination.
In summary, initially ethnic minorities were defined, the definition has evolved over time to the point that today most interested parties agree, that, for the UK it is any person who is not White. Subsequently, the CJS was examined, identifying the significant stages and agencies and discussed the question ‘is it a system or a process’, arguing that it is at best an open system, however evidence shows that it is dysfunctional, with divergent policies being applied within different stages and agencies that have discretionary powers that potentially can be exploited to create the prospect of direct or indirect discrimination and focused on the Police whom have been described as ‘institutionally racist’ with a predominantly White ‘canteen culture’ that despite recruitment initiatives is still perceived as prejudiced.
This coupled to various factors, including the use of ‘discretion’ allow discrimination to continue to exist, within police practices of ‘stop and search’ and ‘reasonable suspicion’ for arrest, which can be abused to unfairly target ethnic minorities, which can have successive effects on the rest of the CJS. Subsequently the affect that the defendant’s plea of not guilty, which research shows that Black defendants have predisposition to do so, can have on their trajectory through the system, with individuals exert their innocence, but are subsequently found guilty suffer in terms of not being liable to caution or sentencing discounts. It is concluded that direct and indirect discrimination is present at many stages of the CJS, in particular within the Police Forces where system constructed ‘discretion’ allows for indirect and direct discrimination to continue, that can be re-enforced further through the CJS.
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