There are opportunities to exercise discretion at every stage of the criminal justice process. From the decision of a police officer to stop and search an individual, and whether or not that person is cautioned, to decisions taken about that individual in relation to whether or not they should be remanded in custody or bailed. Whether they should be given community-based penalty or a sentence of custody, and finally, discretion in relation to how long that period of imprisonment should be. It is possibly due to discretion that it is possible for discrimination to take place.
This opinion has led several commentators to conclude that different decisions are taken about different groups at key stages of the criminal justice process, and that ethnic minorities and whites have very different patterns of contact within the criminal justice system. This conclusion is most obvious in relation to imprisonment Instead of scrutinizing the figures impartially and providing a context in which they can be understood, they have engaged in a wholesale dismissal of the evidence, often in a very contradictory fashion.
They have either questioned the validity of any connection at all between race and crime, or argued that the problem is irrelevant as such crime is insignificant by comparison with the 'crimes of the powerful'. According to Bridges and Gilroy they suggest that any link between crime rates and ethnic background is purely a function of police prejudice and that any discussion to the contrary gives 'intellectual support to racist stereotypes of the black community as socially and politically disorganized .
(Bridges and Gilroy, 1982, cited in Lea and Young, 1984, p107) The view that any uneven impact on different ethnic groups should be disregarded seems questionable. Apparently neutral rules or criteria may work to the disadvantage of a particular ethnic group, yet perhaps they could be changed without the sacrifice of any fundamental principle. For example, many police forces will not caution juveniles (instead of setting in train a prosecution) if they are known to have committed two or more previous offences.
In an area where police law enforcement tends to target black youth (for example, through drug raids on reggae clubs) a rule of this kind works to the disadvantage of black people, and, arguably, amounts to treating them unequally. The rule could be relaxed without sacrificing any fundamental principle: after all, police cautions are already given to juveniles who are known to have committed previous offences. (Smith, D. J. cited in Maguire et al, 1997. p. 706)
This analysis suggests that equality of treatment within the criminal justice system cannot be interpreted as equality of outcome (say, the same proportion of different ethnic groups committed to prison). Nor, can it be interpreted as merely the neutral application of existing rules and criteria, whatever their effect. Instead, it is necessary to adopt an intermediate position. The legitimacy and suitability of existing rules and criteria must be critically reviewed in the light of their impact on different ethnic groups.
(Smith 1977). Home office research published in 1995, analyzed self-reported crimes admitted in confidential interviews of a random sample of 1,721 young people between the ages of 14 and 25, with a booster sample of 808 young people of the same age range who are the perpetrators of most of the crimes which dominate present recorded criminal statistics, and a higher proportion of the black than white population are in this age group. (Smith, D. J. cited in Maguire et al, 1997, p. 707).
Nonetheless, young Afro-Caribbean's and whites had similar rates of offending, while young Asians people had lower rates. Indeed, contrary to popular stereotypes, white youngsters also indicated that they were more likely to use illegal drugs than Afro-Caribbean's and Asians were less likely to do so than either group. Ethnic group should not itself be a criterion that determines how people are treated. At one extreme there is the view that equal treatment means the impartial application of existing rules and principles regardless of their impact on different ethnic groups.
If, on that view, more black than white people are committed to prison because more black than white people are judged to lack stable families or a steady job, that does not constitute unequal treatment. At the other extreme, there is a view than any policies, rules or procedures that have the effect of punishing a higher proportion of one ethnic group than another are unjust, and that law and policy should be adjusted so as to achieve equal outcomes (say, in terms of proportion imprisoned) for different ethnic groups, and also for different social classes. (Smith, D. J. 1997, p. 705)
The law, at least in its rhetoric, seeks to impose a universal framework, which, among other things, determines what behaviour is lawful and what is criminal. Especially in the case of post-colonial countries, a further dimension of the problem is the close connection between the law and the concept of the nation. The majority group has a unique connection with the moral, religion and cultural tradition that shaped the legal system. At the same time adherence to the law 'symbolizes the imagined community of the nation and expresses the fundamental unity and equality of it's citizens' (Gilroy, 1987:74).
Yet neither the law nor the corresponding sense of identity grew out of a tradition that included the present ethnic minorities. It may be argued, therefore, that the rules and processes, according to which they are judged to be criminals spring from a tradition which, far from being universal, belong exclusively to the dominant group. (Smith, D. J. cited in Maguire et al. 1997, p. 704) Section 95 of the Criminal Justice act requires the Home Secretary to publish on an annual basis information, which helps people engaged in the administration of justice to avoid discrimination.
This is important, as it not only requires information about race and criminal justice to be published, which has led to a variety of monitoring initiatives, but it is also the first explicit recognition in statue law of the existence of a duty to avoid discrimination in the administration of justice. The aim of the monitoring undertaken by the various criminal justice agencies is to put in place a system that will be able to track a defendant's progress through the criminal justice system. (Smith 1997) Thus, in 1996 all police force areas were required to monitor arrests, cautions, stops and search, and homicide ethnically.
The Crown Prosecution Service has drawn up a sample-monitoring scheme for the year 1996-1997 involving the random sampling of 4,000 cases. The exercise will involve the monitoring of bail and recommendations; charge alterations for a number of specific offences; mode of trial recommendations; and discontinuance. A national system for race and ethnic monitoring was introduced into the probation service in 1992, and in the same year the prison service introduced new ethnic monitoring codes to ensure consistency with other agencies.
(Wilson and Ashton, 1998, p. 86). However, no matter how good these initiatives are, and how valuable they might become, the continuing everyday experiences of black people who encounter the criminal justice system remain overwhelmingly negative.
Bridges, L. , and Gilroy, P. (1982) 'Striking Back', Marxism Today, Penguin Croall, H. (1998) Crime and Society in Britain London, Longman. Davies, Croall and Tyler (1999) Criminal Justice; An Introduction to the Criminal Justice System in England and Wales London, Longman.