What do you regard as the current issue of greatest concern in respect of EITHER the criminal justice system OR the civil justice system of England and Wales? What argument would you put to the Government to persuade it to address your concern? The Criminal Justice System (CJS) in England and Wales consists of a number of agencies, including the Police, the Courts, the Prison Service, the Crown Prosecution Service (CPS) and the National Probation Service.
The System is run by three government bodies: the Home Office, the Attorney General's Office, and the Department for Constitutional Affairs2, each is accountable for their departments of the CJS. The aims of the CJS are to: "deliver justice for all, by convicting and punishing the guilty and helping them to stop offending, while protecting the innocent. It is responsible for detecting crime and bringing it to justice; and carrying out the orders of court, such as collecting fines, and supervising community and custodial punishment.
When these aims are not achieved issues arise as to the effectiveness, fairness and suitability of the CJS in England and Wales. One such issue is that of racial discrimination. Discrimination is defined in the Race Relations Act 1976: "A person discriminates against another in any circumstances relevant for the purposes of any provision of this Act if- (a) on racial grounds he treats that other less favourably than he treats or would treat other Persons" As per the definition of just, the CJS should strive to act in a way which is "morally right and fair, appropriate and deserved".
There is clearly a discrepancy between discrimination and justice; justice cannot be served in an environment where discrimination exists. Discrimination is unlawful according to various acts of parliament5 and Article 14 of the European Convention on Human Rights (which has domestic affect as of the Human Rights Act 1998). This essay is intended to outline the various discriminatory problems associated with and facing the CJS which lead to its aims not being achieved.
Although discrimination has many other forms than racial, it is this which has recently caused the greatest concern that the CJS is failing in its aims, and it is racial discrimination which this essay will explore in detail. First, it is important to outline why racial discrimination should be considered the issue of greatest concern to the CJS. It is clear that racism exists, to some degree, in many facets of society, so why is it such an important issue when it exists in the CJS?
Racism in any CJS is one of the most obvious examples of institutional racism. In the public inquiry of the death of Stephen Lawrence6 Sir William Macpherson of Cluny (a retired High Court judge) defined institutional racism as "The collective failure of an organisation to provide an appropriate and professional service to people because of their colour, culture or ethnic origin. "7 This is clearly unfair, and by definition a justice system should not be unfair.
Lord Hoffman8 refers to the influential work of Professor Hersch Lauterpacht9: "The claim to equality before the law is in a substantial sense the most fundamental of the rights of man. " Increasing the problem is the fact that Home Office figures show ethnic minorities are over represented in the CJS as defendants/prisoners and under represented as employees10. For such a blatant undermining of justice, racial discrimination is surprisingly common within many areas of the CJS as outlined in several public inquiries by the Commission for Racial Equality and others (see below).
It is therefore something which must be given utmost attention by the Government and its bodies who are accountable for the CJS. The Commission for Racial Equality (CRE) was established under the Race Relations Act 1976 with statutory powers including the right to carry out formal investigations of companies and organisations. If it finds unlawful racism exists in their investigations they have the right to take legal action or assist individuals to do so11.
The CRE in its inquiries into the CJS has uncovered several areas of racial discrimination, notably in its report into the death of Zahid Mubarak12 discovering 20 failures in the Prison Service and numerous "finding[s] of race discrimination contrary to s1(1)(a), 20 and 21 of the Race Relations Act 1976"13 in relation to the prison service. Other public inquiries such as the Stephen Lawrence Inquiry14 which found "professional incompetence, institutional racism and a failure of leadership by senior officers"15 are carried out by request of the Home Secretary usually following public pressure.
There are also issues of discriminatory practices in the CJS method of employment, these range from the appointment of senior judicial positions to prison employees. So, racism in the CJS can be found both in employment and the treatment of suspects or prisoners both before and after sentencing. Causes for Concern In 1999, prompted by the Stephen Lawrence Inquiry, the CRE released a fact sheet on racial discrimination in England and Wales16 containing figures outlining areas of concern within the CJS.
The figures clearly showed, along with the inquiry that there were areas of significant discrimination in the CJS. Not only in its treatment of prisoners but also in the way it prosecuted both against ethnic minorities and on behalf of them. The Inquiry centred around the racially motivated murder of Stephen Lawrence and outlined the failings of the CPS to bring the offenders to justice. As a result, three suspects were acquitted due to inadmissible evidence and no one has been brought to justice over his murder. This is clearly a failing of the CJS' aims.
The combined findings of the inquiry and CRE fact sheet are clear. In several different areas of the CJS ethnic minorities suffer a disadvantage. The first of these areas is as victims. The CJS is responsible for protecting the public against crime, yet ethnic minorities are more likely to be a victim of crime (44%) than white people (39%) in both household17 and personal18 offences. 19 Ethnic minorities were also victims to the highest number of homicides where no suspect was found (40%) compared to white victims (10%).
20 As defendants or suspects ethnic minorities are far more likely to be stopped and searched; black people are five times more likely to be searched once stopped than white people21. Statistics also show that ethnic minorities tend to be arrested on weaker evidence; in only 56% of black arrests compared to 63% of white arrests was there sufficient evidence for conviction22. This not only leads to a waste of resources used in their prosecution but also reduces the public's confidence in the CPS.
There is also evidence of longer and harsher sentencing in a large number of courts which can only be attributed to discrimination; in 5 West Midlands Crown Courts 5-8% more custodial sentences were given to black defendants after other factors were taken into account. 23 As prisoners ethnic minorities face further discrimination as was made apparent during the report on the racist murder of Zahid Mubarak in Feltham Young Offenders Institute (YOI) by his cell mate in March 2000. The CRE launched an investigation24 into the Prison Service under suspicion that the murder could have been avoided, but was not, due to unlawful discrimination.
The report found 15 acts of specific discrimination within Feltham YOI and concluded that the Prison Service was guilty of unlawful discrimination. The CRE report mentioned above also specified problems within the prison service such as the grossly over represented black prison population (1,249 per 100,000 population) compared to white inmates (only 176 per 100,000 population). 25 When civil liberties and basic human rights are affected by discrimination something must be done. Employees also suffer discrimination in the CJS.
Following persistent advice and warnings from the CRE to the CPS in regards to its race equality practices it was announced that under their powers contained in s 48 of the Race Relations Act 1976 the CRE was to carry out a formal investigation into the CPS, this would result in the publication of the Denman report26. This report centred on a number of recent successful challenges brought against the CPS in employment tribunals since 199527. In two cases28 the CPS was found to be discriminating (directly and indirectly) against its staff on racial terms.
In the case of CPS v MRS M T BAMIEH29 the tribunal awarded "one of the highest awards for injury to feelings ever to have been made by an employment tribunal"30. The Denman report found the CPS to display institutional racism, it found "[ethnic minority staff] are seriously under-represented in both the higher administrative grades and the higher lawyer grades. "31 It also found that "A significant number of ethnic minority staff have experienced race discrimination at one time or another within the CPS"31