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 i?? 100,000"32 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 Affairs33 (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%. 34 Now, for every young black person in university there are two in jail.
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 figures35 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 Department36 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. "37 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"38 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. "39 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.
1. Statistics on Race and the Criminal Justice System – 2003 A Home Office publication under section 95 of the Criminal Justice Act 1991 http://www. homeoffice. gov. uk/rds/pdfs04/s95race2003. pdf