"Sentencing disparity presents serious problems. It manifests the failure of the system to achieve the goal of equal justice under law… " To suggest that the outcome of court proceedings in the criminal justice system today depended only on the guilt or innocence of the defendants would not only be a naive belief, but probably a very rare one.
Not only are defendants categorised and treated according to race, class and gender (leading to unequal numbers of convictions), but added to this are questions regarding the impartiality of the other actors in the proceedings, for example, the lawyers, the judges, the magistracy, and even those at the top end of the criminal justice system, the Law Lords. It is also a shocking fact that geography, or where the trial is held, can affect a defendants chances of imprisonment.
In this essay I shall attempt to assess not merely the degree of influence on court proceedings of the wider social influences, but also show how the interactions between actors in the courtrooms, and also behind the scenes, has far more influence on determining a defendants guilt in the eyes of the law, than any other factors. One can see from official statistics that guilt and imprisonment are predominately working class phenomena. The higher an individual is in the social strata, the less likely he or she is to be arrested, prosecuted and (if prosecuted), convicted.
The reason for this, it seems, is that the types of crimes which the middle classes are likely to commit (that is, 'white-collar crimes') are far more difficult to detect than working class crimes, and when detected in a large company, an internal inquiry is often preferred to avoid bad publicity for the firm. However, when these crimes are brought to trial, the defendants very rarely receive prison sentences, as judges tend to be lenient.
I shall discuss later the extent to which the social composition of the court actors influences the outcome of trial proceedings, but it is clear at this point that the social status of the middle class defendants places him in a better position for communicating with a judicial system populated with individuals form professional and managerial backgrounds. The official statistics also show that women are unlikely to be prosecuted and even less likely to be convicted compared to men.
Similarly, the race of the defendants would seem to affect the likelihood of his or her conviction. Although a larger proportion of men, and black men in particular, are arrested for crimes (although note that this does not necessarily mean that they have committed a crime, merely that the police believe they have), the criminal proceedings inherently favour the white, middle class female. The fact that the class, race and gender of a defendants affects his or her experiences in the courtroom is, although distressing, hardly surprising.
What is surprising is the extent to which the central actors in the British criminal justice system (including, and perhaps especially, the defence lawyers) manipulate the defendants in order to maintain administrative expediency. I will now begin by considering the performance of the central actors in the British criminal justice system (beginning with the Law Lords at the top, and ending with the defence lawyers), and the extent to which these actors affect the court proceedings and therefore the fate of the defendant.
THE LAW LORDS At the highest point in the criminal justice proceedings are the Law Lords. They are responsible for decisions made in the final appeal of the defendant. Perhaps one of the most important decisions made in recent years by the Law Lords was that of R. v. Brown. In this important case, the defendants, a number of homosexual men participating in a sadomasochism (hereafter SM) ring, were found guilty of assault upon each other. The crux of the case was whether consent was a defence to assault.
At the trial, Judge Rant had rejected the defence of consent, effectively creating new law, as there was no part of the existing criminal law that stated that consent was not applicable in such cases as this. The Law Lords, instead of overruling this decision concerning consent, as they should have done, upheld it by a 3:2 vote, even though two of the Lords, that is Lord Mustill and Lord Slynn, pointed out in their speeches that, "It is not for the courts to protect people from themselves, to introduce into existing statutory crimes relating to offenses against the person, concepts which do not properly fit there.
" We can see clearly, then, that the Law Lords are not always as impartial as we would wish them to be, as they have in the above case created new law where their supposed purpose was to decide whether the defendants had broken any existing laws. Commentators have since suggested that the courts's rulings on R. v. Brown was no more than knee-jerk homophobia, or fear of a sexual practice that the law had no power to control, and that it is a tragedy that the Law Lords are not the impartial scholars of law that they are supposed to be.
However true this may be, we must also recognise that although they are in a high position now, they themselves have been taught by the system. Alan Patterson claims that, "… a Law Lord will form his perceptions of his role by watching the performances of the Law Lords while he is still a barrister of a judge in a lower court, and from his interaction with his fellow Law Lords following his elevation to the Lords. " We can understand, then, that the Law Lords at the top of the criminal justice system, then, are only as impartial as the system that taught them.
As I will attempt to show in the following pages, the system itself is so flawed that the chances of a fair decision being made in the courts are dramatically reduced. "THE SOCIAL COMPOSITION OF THE MAGISTRACY" John Baldwin, in 1976, reminded us of the Royal Commission on Justices of the Peace's statement in 1948, that, "… it is essential that there should be many among the justices who know enough of the lives of the poorest people to understand their outlook and their difficulties. " However, Baldwin notes that over the years very little has been done to bring a wider range of social class difference into the magistracy.
For example, while the Commission in 1948 found that 3. 5. % of the magistracy were without gainful employment, Baldwin found that of the newly appointed magistrates in 1971-72, a mere 0. 6% of the males were unemployed. Meanwhile, he found that 'professional people' and 'those employing 10 or more people, or chairmen, directors or managers of large firms' still made up the highest proportion of magistrates. This is obviously a problem when attempting to maintain a face of justice for the British criminal justice system, as we have already seen that there is an inequality in the convictions of defendants from different class backgrounds.
As Baldwin suggests, "The very raison d'etre of the magistracy rests on the principle that justice can be administered by groups of laymen whose idiosyncrasies and prejudices will be neutralised and absorbed in deliberations with others from different backgrounds. " If social class bias is allowed to remain prevalent in the recruitment of the magistracy, it is too much to hope that it will not be allowed to rear its ugly head in the court proceedings also.