Racism is prejudice or discrimination; based on the belief that race is the primary factor determining human traits and abilities. Racism includes the belief that one race is superior and all others inferior. Racism is a big problem in Britain with an estimated 400,000 racist crimes being committed1. But who are these racists, to judge somebody based purely on the colour of their skin? Throughout my essay I would like to bring attention to the issue of racism in the Criminal Justice System in the extent of racism in jury trials.
Introduction On the 28th August 1963, Martin Luther King delivered a famous speech, on the steps of the Lincoln memorial in Washington, some of which states, "I have a dream. That my four little children will one day live in a world where they will not be judged by the colour of their skin, but by the content of their heart. "2 These words were spoken in 1963 and today as the year 2005 dawns, this still is not seen to be true. I would like you to consider the following scenario.
You are a British born national of Asian origin, living in Birmingham, (a large multicultural city), charged with fraud. During your trial, the Judge is passed a unanimous note from one of the people sitting, on an all white jury, stating that other jurors have been making openly racist comments about you. Instead of dismissing the jury, the Judge simply reads the note out in open court and merely reminds the jury that they should put their prejudices aside and come to their decision impartially. Would you feel you were having a fair trial?
This was the situation that Mr Kudlip Sander faced in 19953. The public and many government organisations are striving to abolish racism in society, but why aren't they addressing the issue of racism in the court system, especially when it comes to trial by jury, as so many people's future is put in these people's hands? The Jury The law relating to juries today is set out in the Juries Act 1974, as amended by the Criminal Justice Act 1988. This lays out the various provisions such as juror qualification and exemption4.
The role of the jury is to decide whether a defendant is guilty, on the basis of their understanding of the law explained to them by the judge. They should come to this decision impartially, as each juror must give an oath stating that they "will faithfully try the defendant and give a true verdict according to the evidence"5. Biased and prejudices should have nothing to do with jury trial as " it is of fundamental importance in a demographic society that the courts inspire confidence in the public and above all, as far as criminal proceedings are concerned in the accused.
To that end it has constantly stressed that a tribunal including a jury must be impartial from a subjective6 as well as objective7 point of view. "8 The possibility of bias poses a real threat to the public's confidence in the justice system, so is an issue the government needs to address quickly and effectively. The question of whether race affects jurors is a prominent one but as the famous cases of OJ Simpson and Rodney King indicate, race is a factor that indeed does affect a juror's decision9. The issue of the right to trial by jury remains a controversial one.
In England and Wales, although there is no right to trial by jury, set down in law, people charged with indictable offences, through no choice of their own are subjected to it, whether they are of white, black or Asian origin, as it is seen to be a general convention of British history. 10 This creates a problem, as many people perceive the jury as not being wholly representative of society. There have been a number of comments made about jury trial, maybe the most famous of all being, that in 1956 Sir Patrick Devlin spoke of the jury as the "lamp that shows freedom lives"11.
Following the commentary already mentioned above and the cases that I will now bring to light, many people may now disagree with Mr. Devlin's statement. Arguments I would put forward to the government 1) The amount of case law. The government's attempts to try and combat racism in juries12 in the past have had little effect and done nothing to abolish racism in jury trials, as the case of Sander, as the vast amount of cases where racism has been an element prove. I would like, to bring attention to the particular case of Gregory13, in which the applicant who was black, was convicted of robbery at the Crown Court.
During the trial the judge was passed a note stating "jury showing racial overtones". The judge, as in Sander, rather than dismissing the jury, again simply said he was not willing to discharge anyone and that the jurors should put all thoughts of biased out of their heads. An inquiry following this case submitted that the government felt that juries represented the collective judgement and sense of community and that there had been no proof of actual bias. The guilty verdict stood14.
I have only illustrated a fraction of the case law surrounding racism in jury trials but it has to be said that the amount of case law itself surrounding this area should be enough for the government to recognise that something has to be done. How can a country have belief in a justice system that allows defendants to go to prison purely because of their skin colour? Further cases which are of great importance and highlight the issue of racism in our jury system include that of R v Qureshi15.
In this case, three days after Mr.Qureshi was found guilty a juror in the trial came forward and informed the courts that some members of the jury had been biased and decided that Qureshi was guilty from the outset. His application to the court of Appeal was denied on the grounds that in order to investigate this complaint the courts would have to look into the workings of the juries deliberations. This would be unlawful. 16 It has to be asked now whether such a rule17 is acceptable, especially when it conceals possible injustice. 18 The abolishment of the Contempt of Court Act 1981-Section 8
The common law secrecy rule, it is thought, came to light in 1785 with the case of Vaise v Delaral. In this case Lord Mansfield refused to hear evidence that a jury had decided their verdict, based on the outcome of a coin toss. 19 This common law rule, was enacted into British law by the Contempt of Court Act Section 8, which clearly states, it is an contempt of court to "obtain, disclose or solicit and particulars of statements made, opinions expressed, arguments advanced or votes cast by members of a jury in the course of their deliberations in any legal proceedings".
Lord Steyn commented in the House of Lords recently, that there should be a means of redress for this rule, in cases where there is an allegation of jury impropriety. This redress is set to come in the force of a consultation paper to be published next year, issued by the Lord Chancellor. This is meant to look at the methods of investigating the guilty verdicts reached by jurors on the grounds of racial prejudice. 20 Although this is a fantastic step in the right direction I feel it needs to be done faster.
A change in the law is going to take years from when the original consultation is published, and in the mean time, innocent black defendants are being sent to prison. I would urge the government to put this issue and indeed this consultation paper, to the top of their priority list and make the Criminal Justice System a fairer one quickly. The rectification of the process of Random Selection The assumption by many is that by introducing members of the public into our court system, in a randomly selected manner, in the form of a jury, helps ensure the public's confidence in the system.
But what if this method leads to injustices, especially in cases where a black defendant is being tried by an all white jury? The principle of random selection is created by juror's names being picked randomly from the electoral register. This in itself causes problems from the outset as people from ethnic minorities are severely underrepresented on this register. 21 Recent Home Office Research22 indicates about 24% of black, 15% of Indian sub continent and 24% of other ethnic minorities are not registered on this electoral list, and therefore can not be called for jury service.
This process of random selection has been highly criticised with comments voiced such as " not only does randomness not equal representativeness, but it can result in juries, in individual cases being grossly unrepresentative"23 this is an area the government needs to tackle, if they want to ensure public confidence in the system. Dr. Darbyshire posed a question in her research stating that "for over 5 centuries until 1870, members of minorities such as Jews and Germans had the right to be tried by a jury comprised of half foreigners.
It was called the jury "De mediate linguae". This right was abolished on the ground that "no foreigner, need fear for a fair trial in England. " Can we in England and Wales believe this to be true now? "24 At the present time I fear not. It has already been proven that white defendants rate a black defendant more culpable, as two studies25 of 256 white undergraduate students and 196 black undergraduates show. These studies show that when evidence is not strong enough to convict, a white juror will give a white defendant the benefit of doubt but not a black defendant26.
In a country, ever growing with people from ethnic backgrounds, it is important the government addresses this concern immediately and finds a way in which the random selection principle is fair to both whites and people of ethnic origin. Recent proposals for reform expressed, include that in exceptional cases involving a defendant from an ethnic background, which will therefore have a "racial dimension", the judge, if persuaded that an all white jury, may cause injustice, can direct the selection of a jury, consisting of up to three people from ethnic minorities27.
Lord Justice Auld seemed to agree with these proposals, and indeed they did seem like a way to ensure fairness in trials where the jury had been randomly selected. However, the government refused to adopt these suggestions, as they felt it "offended the principle of random selection from a cross section of the population as a whole.
"28 David Blunkett commented that "the engineering of juries to create more balance is a very difficult area"29 surely it is worth some degree of difficulty to ensure that ethnic minority defendants have a fair trial? It is quite clear that "our randomly selected juries are clearly at risk of one or more of their number bringing prejudice to their task"30, so why are the government refusing to accept it? This argument I feel features strongly in my plight to ensure the government addresses my concerns.