A Fair Hearing?

Citation preview

A Fair Hearing?

Policing and Society Series Series editors: Les Johnston, Frank Leishman, Tim Newburn Published titles Policing, Ethics and Human Rights, by Peter Neyroud and Alan Beckley Policing: a short history, by Philip Rawlings Policing: an introduction to concepts and practice, by Alan Wright Psychology and Policing, by Peter B. Ainsworth Private Policing, by Mark Button Policing and the Media, by Frank Leishman and Paul Mason Policing, Race and Racism, by Michael Rowe

A Fair Hearing? Ethnic minorities in the criminal courts

Stephen Shute, Roger Hood and Florence Seemungal

The Metropolitan Police and black Londoners in post-war Britain

Published by Willan Publishing Culmcott House Mill Street, Uffculme Cullompton, Devon EX15 3AT, UK Tel: ;44(0)1884 840337 Fax: ;44(0)1884 840251 e-mail: infoVwillanpublishing.co.uk website: www.willanpublishing.co.uk Published simultaneously in the USA and Canada by Willan Publishing c/o ISBS, 920 NE 58th Ave, Suite 300 Portland, Oregon 97213-3786, USA Tel: ;001(0)503 287 3093 Fax: ;001(0)503 280 8832 e-mail: infoVisbs.com website: www.isbs.com Stephen Shute, Roger Hood and Florence Seemungal 2005 The rights of Stephen Shute, Roger Hood and Florence Seemungal to be identified as the authors of this book have been asserted by them in accordance with the Copyright, Designs and Patents Act of 1988. All rights reserved; no part of this publication may be reproduced, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, recording or otherwise without the prior written permission of the Publishers or a licence permitting copying in the UK issued by the Copyright Licensing Agency Ltd, 90 Tottenham Court Road, London W1P 9HE. First published 2005 ISBN 1-84392-084-0 (hardback) British Library Cataloguing-in-Publication Data A catalogue record for this book is available from the British Library

Project managed by Deer Park Productions, Tavistock, Devon Typeset by TW Typesetting, Plymouth, Devon Printed and bound by TJ International Ltd, Trecerus Industrial Estate, Padstow, Cornwall

Contents

Acknowledgements

vii

1 Equal justice in a multi-cultural society Perceptions of fairness Mounting concerns The search for empirical evidence How do ethnic minority citizens experience the courts? The need for a new study

1 1 2 6 10 14

2 Researching perceptions Some necessary conceptual distinctions Getting at the issue The fieldwork Some possible biases Obtaining views from other participants Plan of analysis

16 16 18 21 25 28 30

3 Perceptions of fairness: a quantitative assessment Unfairness of any kind: the defendant’s perspective The extent of perceived racial bias The views of black defendants The views of Asian defendants Conclusion

32 32 35 39 41 41

4 Perceiving racial bias Inequitable sentencing The conduct of the judiciary The performance of lawyers Probation officers and pre-sentence reports The conduct of security staff The language of the court Conclusion

42 42 51 55 57 58 59 59

5 Perceptions of unfairness in context Personal characteristics Acquittal

61 61 62 v

A Fair Hearing?

Previous experience of criminal courts The sentence imposed Ethnic composition of the courts Response bias?

62 63 64 70

6 A question of confidence Confidence in equal treatment Fairness of treatment compared with previous occasions Current experience: its impact on confidence

71 71 74 74

7 The views of informed observers: court officials and lawyers What court staff observed What did lawyers perceive? Conclusion

79 79 82 91

8 The judicial and magisterial perspective The views of Crown Court judges The views of magistrates

92 92 98

9 The experiences of witnesses

105

10 A ‘cultural change’? A judicial perspective Magisterial perceptions Experiences of advocates Conclusion

108 108 111 114 116

11 What still needs to be done? Defendants’ views The views of witnesses The views of court staff The views of lawyers Suggestions from the judiciary Suggestions from magistrates In conclusion

117 117 120 121 122 126 127 129

Appendix: Interview Schedule for Defendants

134

Bibliography

151

Index

155

vi

Acknowledgements

The study on which this monograph is based was carried out for the Lord Chancellor’s Department (now the Department for Constitutional Affairs) between 2000 and 2002. The first fruits were published as a report by the Lord Chancellor’s Department: Roger Hood, Stephen Shute and Florence Seemungal, Ethnic Minorities in the Criminal Court: Perceptions of Fairness and Equality of Treatment. With the Department’s support, which we gratefully acknowledge, that report has been transformed into this monograph in the hope that the findings will reach a wider audience. In undertaking the transformation, we have tried to place the research in the broader context of the concerns that have been expressed over the last fifteen years or so about the treatment of minority ethnic people by the criminal courts. We have also rearranged the ordering and presentation of the findings and augmented the text in various ways. The research on which the new Chapter 1 is based was carried out by Stephen Shute. For this reason his name is placed first, although the new text has been jointly written by him and Roger Hood. Stephen Shute would like to thank the Arts and Humanities Research Board and the University of Birmingham for having funded a period of research leave which allowed him to devote time to the book’s completion. The fieldwork for the book would not have been possible without the support of the Senior Presiding Judge for England and Wales, Lord Justice Judge, the Resident Judges and their colleagues and the Crown Court Managers and their staff at Isleworth, Manchester, Birmingham and Inner London Crown Court centres. Nor would we have been able successfully to complete the work without the assistance of the Court Service, area managers, Justices’ Clerks, their staff and the magistrates at Uxbridge, Manchester, Birmingham and Camberwell Green/Tower Bridge magistrates’ courts. We thank also the lawyers – solicitors, legal representatives and barristers – who made time in their busy schedules to talk to the researchers. We are indebted to Premier Prisons, Securicor and Group Four for permitting us to interview defendants while they were held in their custody. As will become apparent, our task would have become immensely more difficult if this permission had not been forthcoming. Similarly, we are grateful to HM Prison Service for giving us access to vii

A Fair Hearing?

interviewees where this was necessary. At each of the courts the researchers were made welcome and given excellent facilities for their work. Many kindnesses were shown to them, for which we are very grateful. The fieldworkers for this arduous study played, of course, a key role. They were led by Dr Florence Seemungal, Research Officer at the Centre for Criminological Research, whose dedication and ability to engender a sense of teamwork among her colleagues was much appreciated. Gregory Smith was a tower of strength, and no doubt the high response rate owes much to his and Florence’s personal charm. They were greatly helped in different courts by Anqa Butt, Danielle Griffiths, Leela Jackson, Elena Martelloza, Alexander Rudolph and Emmanuelle Versmessen. Interviews with the lawyers were expeditiously and skilfully carried out by Mohammad Idriss, Mussadak Mirza and Ravinder Thukral. Florence Seemungal was also in charge of data entry and management and was assisted cheerfully by Gabriella Romano, Alexander Rudolph and Emmanuelle Versmessen. Several of the secretaries in Oxford and at Birmingham helped us by transcribing tape-recorded interviews and Helen Goldie provided research assistance for Chapter 1. We are also very grateful for helpful comments on the original report received from Dr Marian Fitzgerald, Dr Tahir Abbas and Professor Andrew Ashworth. Throughout we have been supported and encouraged by Mavis Maclean: we are indebted to her. Above all, we thank the defendants and witnesses who agreed to talk to researchers at a time which, for most of them, was very stressful. It goes without saying that without such marvellous cooperation this study could not have been completed. Stephen Shute University of Birmingham

viii

Roger Hood All Souls College, Oxford

About the authors

Stephen Shute, BCL, PhD is Professor of Criminal Law and Criminal Justice at the University of Birmingham. Roger Hood, CBE, QC, PhD, DCL, FBA is Professor Emeritus of Criminology at the University of Oxford and an Emeritus Fellow of All Souls College, Oxford. Florence Seemungal, PhD is a Research Associate of the Centre for Criminology, University of Oxford.

ix

.

Chapter 1

Equal justice in a multi-cultural society

Perceptions of fairness It is a fundamental tenet of justice in modern democratic societies that all persons are to be treated fairly, with equal respect, and not be subject to any form of adverse discrimination, whether direct or indirect.1 But it is no less fundamental that people should not feel discriminated against, for perceptions may be as significant as any objective evidence of discriminatory treatment in affecting their confidence and trust in public institutions and their belief that they have been treated as full citizens on an equal basis with other citizens. In almost no other area of public life is the perception of discrimination more damaging than in the field of criminal justice. People rightly feel particularly resentful when they believe that they have not been treated by the agencies of criminal justice with the same respect or on an equal basis with others in similar circumstances. To be subject to these agencies – even if only for a stop or a search – may be not only inconvenient but humiliating. To receive criminal punishment disadvantages, stigmatises and delivers pain in a very public way. When people believe that the police, prosecutors, criminal courts or ‘correctional’ institutions have dispensed justice unfairly, they are apt to question the legitimacy of these agencies and withdraw their allegiance from them. They are also less liable to believe that the criminal law deserves their 1

See, for instance, Ronald Dworkin, Law’s Empire (London: Fontana, 1986), esp. at pp. 296 and 381.

1

A Fair Hearing?

obedience.2 This is particularly true when, as in the case of minority ethnic populations, there has been a history of discrimination and disadvantage. For all these reasons, it is no less important to tackle perceptions of unfair treatment than it is to tackle the unfair treatment itself: they are mutually dependent and reinforcing. If people are treated fairly by the criminal justice system, and if this accords with their subjective experiences, that will, in the longer term, have a positive influence on beliefs and perceptions so as to increase the confidence and trust of the population as a whole. The research on which this monograph is based is concerned with such perceptions and beliefs held by minority ethnic citizens who have come into contact with the criminal courts. It is the first large-scale study in Britain to have concentrated on how minority ethnic defendants and witnesses experienced their treatment, as compared with white defendants and witnesses. It raises the question of the extent to which those members of ethnic minorities who felt they were not treated fairly and with equal respect by the criminal courts believed that this was due to discriminatory treatment based on their race, colour or culture.

Mounting concerns There has been a good deal of evidence in England of differential treatment of minority ethnic people at different stages of the criminal justice process.3 Although much of the research and statistical evidence has concentrated on the use of police powers, concern has also been expressed that sentences have not been imposed equitably by the criminal courts. This concern was fuelled by the recognition that there had been an alarming increase in the number of mostly secondgeneration males and females of African-Caribbean origin in the prison 2

This is the theme developed by the American psychologist Tom Tyler in his influential book Why People Obey the Law (New Haven: Yale University Press, 1990), and in several subsequent publications. For example, see Tom Tyler and Steven L. Blader, Co-operation in Groups: Procedural Justice, Social Identity and Behavioral Engagement (Philadelphia: Psychology Press, 2000). 3 For valuable reviews of this evidence and its interpretation, see David J. Smith, ‘Ethnic Origins, Crime, and Criminal Justice’ in Mike Maguire, Rod Morgan and Robert Reiner (eds), Oxford Handbook of Criminology, 2nd edn (Oxford: Oxford University Press, 1997), at pp. 703–759; Ben Bowling and Coretta Phillips, Racism, Crime and Justice (London: Longman, 2002); Coretta Phillips, and Ben Bowling, ‘Racism, Ethnicity, Crime and Criminal Justice’ in Mike Maguire, Rod Morgan and Robert Reiner (eds), Oxford Handbook of Criminology, 3rd edn (Oxford: Oxford University Press, 2002 at pp. 579–619); and Ian Hearnden and Mike Hough, Race and the Criminal Justice System: An overview to the complete statistics 2002–2003 (Home Office: Criminal Justice System Race Unit, 2004).

2

Equal justice in a multi-cultural society

population – an increase that could not be ignored once the Home Office began monitoring the ethnicity of prisoners in 1984. The first results of this monitoring, published in 1986, proved that African-Caribbeans were greatly overrepresented among prisoners compared with their number in the general population.4 This understandably gave rise to a suspicion that the imbalance could not be attributed solely to any differential incidence of offending by African-Caribbeans but must reflect a tendency for the courts to treat them with greater severity than similarly placed white offenders, by sending a higher proportion of them to custody and by giving them harsher sentences. The matter was taken up, sometimes quite vehemently, by academic commentators, by the ethnic minority press,5 by members of Parliament, by influential pressure groups and finally by judicial and governmental advisory committees. Examples abound. In 1986, following the sentences handed down in Birmingham after the Handsworth riots, Peter Herbert, the Vice-Chair of the Society of Black Lawyers, accused the courts of operating a ‘blanket policy of custodial sentences for young blacks’.6 Similarly, in 1990, The Voice spoke of a rise in ‘[c]oncern over racism in the criminal justice system . . . since a stream of reports have shown that black people are more likely to receive longer sentences than white people for similar offences’.7 According to Sir Michael Day (then Chair of the Commission for Racial Equality (CRE)), these reports had produced a ‘widespread belief that . . . young Black people in particular are dealt with more harshly by the criminal justice system, and that racial discrimination may be part of the system’.8 4

The Ethnic Origins of Prisoners: the Prison Population on 30th June 1985 and Persons Received, July 1984–March 1985, Home Office Statistical Bulletin, 17/86 (Home Office, 1986). See Bowling and Phillips, above n. 3, at pp. 192–199. In June 2000, 19 per cent of the male and 25 per cent of the female prison population were from ethnic minority groups. ‘The largest ethnic minority group was black prisoners, who accounted for 13 per cent of the male prison population and 19 per cent of the female prison population’. See Prison Statistics England and Wales 2000, Cm 5250 (Home Office, 2001), at para. 6.1, p. 108. By June 2002, black prisoners ‘accounted for 15 per cent of the male prison population and 24 per cent of the female prison population’. See Prison Statistics England and Wales 2002, Cm 5996 (Home Office, 2003), at para. 6.1, p. 115. 5 In particular, see The Voice, which was described by Mr David Winnick in the House of Commons Home Affairs Select Committee as ‘the journal of the black community’ (Home Affairs Committee, Criminal Justice Bill, Second Report of Session 2002–2003, HC 83, November 2002, Q.362, Minutes of Evidence for 5 March 2002). For academic comment, see in particular Paul Gordon, White Law: Racism in the Police, Courts and Prisons (London: Pluto Press, 1983). 6 See The Voice, 8 February 1986. This, he stressed, was counterproductive, because if the black community lost confidence in the system of justice these offences would ‘recur’. 7 See The Voice, 18 September 1990. 8 See The Voice, 19 November 1991.

3

A Fair Hearing?

At the same time, it was alleged that the substantial underrepresentation of minority ethnic persons among those who administer criminal justice in the courts was the result of discrimination against black people in the selection of magistrates9 and judges. One Member of Parliament declared: ‘How can black people trust the system of justice when all they ever see before them are these cloistered, geriatric white men?’10 Calls were therefore made for black lawyers to be fast-tracked into judicial appointments in the Crown Court,11 where the system of recruitment was based in part on the length of the applicant’s experience as a barrister and consequently discriminated (at least indirectly)12 against members of ethnic minorities, many of whom had only comparatively recently entered the legal profession. Indeed, at the first national conference on minority entry to the legal profession, held in June 1985, Mr Justice Richard Scott, according to The Voice, ‘slammed the legal profession . . . for racial discrimination against black barristers’. At the same conference, His Honour Judge Mota Singh, QC, then the only ethnic minority circuit judge in England and Wales, warned that a ‘failure to remove even the appearance of discrimination from the legal profession reduce[d] the confidence of every sector of the public in the fair administration of justice’.13 This pressure bore some fruit when application forms for appointments to Queen’s Counsel and to the lower judiciary began to include a question as to the candidates’ ethnic origin14

9

See Michael King and Colin May, Black Magistrates: A Study of Selection and Appointment (London: Cobden Trust, 1985). An article in The Voice, 6 April 1985, commenting on the study, noted: ‘Black people have little chance of becoming magistrates because the selection system heavily discriminates against them’. See also The Voice, 31 October 1989: ‘Magistrates’ courts are being urged to change their recruitment policies because they have failed to get rid of racial discrimination. The Home Office has issued a circular asking the courts to draw up equal opportunity policies and to ensure they have enough black magistrates and staff’. 10 Mr Brian Sedgemore, HC Debs, Vol.164, col. 666, 21 December 1989. 11 See, for example, The Voice, 17 July 1990. 12 See The Voice, 22 October 1991, which reports Anthony Scrivener QC, the Chairman of the Bar Council, as saying; ‘The judicial appointments system is simply not fair. I will not accept that there are not enough capable black people to take up the position. I could provide a list of candidates now’. See also The Voice, 27 October 1992, which covered a 1992 JUSTICE report (The Judiciary in England and Wales (JUSTICE, 1992)) that argued for changes in the process of selection of judges so as to ‘broaden the socio-economic background of the judiciary and make it more likely that Black people will be appointed to the bench . . ’. 13 See The Voice, 22 June 1985. 14 See The Voice, 24 September 1991: ‘But the monitoring will not extend to High Court judges, who are appointed by invitation’.

4

Equal justice in a multi-cultural society

and the Bar Council approved a policy to require chambers ‘to try and ensure that at least five per cent of barristers’ are black.15 Another persistent complaint was that judges were ignorant of the culture and lifestyles of ethnic minority communities from which they were, on the whole, far distant. Referring to a case in which a Rastafarian had been asked to remove his hat in court, an influential black journalist observed: ‘[N]o-one would ask a Sikh to unravel his turban or a nun to whip off her wimple . . . So when a judge recently asked a Rastafarian to remove his hat in court we saw that Black culture scored zero in the respect stakes. Didn’t he know that dreadlocks – the symbol of judgement – must have the same respect as his wig’.16 Occasionally, but infamously, judges were reported as having used language – sometimes in court and sometimes in private when they presumably believed that they were among like-minded colleagues – which was widely interpreted as racist. A senior London judge, for example, was castigated for referring to black people as ‘nig-nogs’ during an after-dinner speech and then exacerbated the situation by saying that his remark ‘was not intended in any way to have any racist significance’.17 And at Southwark Crown Court, in a case involving three black men who had been jailed for robbery, a judge, after reading a probation report that had been checked by London’s probation services for ‘racist, sexist and stereotyped’ comments, was reported to have ‘expressed concern’ over why the checking was needed: ‘In 30 years at the bar and bench’, he said, ‘I have never seen a probation report which contained any remark I would describe as racist, sexist or stereotyped’. This complacent reflection was described by a spokesman for the National Association of Probation Officers as ‘a sad reflection of the judiciary’s inability to come to terms with racist issues’.18 Such sporadic reports of insensitive language and comments continued well into the 1990s. A county court judge in Liverpool in 1994, for instance, used the phrase ‘nigger in the woodpile’;19 and a Crown Court judge in Derby in 1995 told an all-white jury: ‘I have in front of me photographs of 12 Asian men, all of whom look exactly the same, which I’m sure you appreciate’.20 The fact that many minority ethnic defendants were tried before all-white juries also became a focus for complaint. When four black men were found to have been wrongfully convicted by an all-white jury, The Voice argued that ‘Black jurors in such cases would 15

See The Voice, 22 October 1991. Tony Sewell, ‘Live and Kicking’, The Voice, 7 January 1992. He also recalled a case ‘in which the judge had no idea what Ganja was’. 17 See The Voice, 4 April 1989 (‘ ‘‘Racist’’ Judge Refuses To Say Sorry’). 18 See The Voice, 18 September 1990. 19 See The Voice, 26 April 1994 (‘Judge’s ‘‘nigger’’ jibe causes outrage’). 20 See The Voice, 28 February 1995. 16

5

A Fair Hearing?

bring a voice of reason to the jury room and ensure that Black defendants are judged on the evidence and not on prejudice’. The Society of Black Lawyers,21 along with the CRE, therefore recommended to the 1993 Royal Commission on Criminal Justice that the jury should always be multi-racial when the judge considered that race might be an issue in the trial. Although the Royal Commission did not support this as a general practice, it did recommend that ‘in exceptional cases, where compelling reasons can be argued for such a course, it should be possible for either the prosecution or the defence to apply to the judge before the trial for the selection of a jury containing up to three people from ethnic minority communities [and] to argue the need for one or more of the three jurors to come from the same ethnic minority as the defendant or the victim’.22 But even this concession was not implemented. In response, the National Black Caucus and other campaigning civil rights groups pressed the United Nations Committee on the International Convention for the Elimination of all forms of Racial Discrimination (CERD) to ensure that the UK’s criminal justice system incorporated multi-racial juries ‘to reflect the wider community’.23 The case for multi-ethnic juries also found favour with Lord Justice Auld in his report on the criminal justice system.24 As yet, these recommendations have not been implemented.

The search for empirical evidence Several attempts were made in England in the 1970s and 1980s to study empirically the extent to which there had been unjustifiable differential treatment of minority ethnic defendants in the criminal courts. But, for various reasons – small sample size, lack of distinction between various ethnic minorities, and limited data on variables relevant to sentencing – the findings were inconclusive.25 Towards the end of the 1980s, therefore, 21

See its Charter for Freedom (reported in The Voice, 8 June 1993). Royal Commission on Criminal Justice, Report, Cm. 2263 (HMSO, 1993), Recommendations 222 and 223, pp. 207–208. 23 The other organisations were The 1990 Trust, Liberty, Charter 88, the National Black Alliance, the Refugee Council, and the Newham Monitoring Project. See The Voice, 13 August 1996. 24 Lord Justice Auld, Review of the Criminal Courts of England and Wales, Report (Stationery Office, 2001), at paras 52–62, pp. 156–159 (Recommendation 25). The publication of the Auld Report was reported in The Voice, 15 October 2001. 25 See, for example, Michael McConville and John Baldwin, ‘The Influence of Race on Sentencing in England’ (1982) Criminal Law Review 652–658; and Barbara Hudson, ‘Discrimination and Disparity: the Influence of Race on Sentencing’ (1989) 16 New Community 23–34. For a discussion of these earlier studies and their methodological limitations, see Roger Hood, Race and Sentencing: A Study in the Crown Court (Oxford: Oxford University Press, 1992), at pp. 7–23. 22

6

Equal justice in a multi-cultural society

the CRE sought to obtain some more robust evidence about the extent to which discriminatory treatment might be occurring in the criminal courts and Roger Hood was commissioned to carry out the research. It was decided to base the study in the West Midlands because, outside of London, that conurbation contains the largest concentration of minority ethnic persons in the country. It was also decided to examine the sentencing practices of the Crown Court, since the bulk of the daily average population of prisons is sentenced there rather than at magistrates’ courts. Decisions relating to all minority ethnic males who had been tried at five Crown Court centres in the West Midlands in 1989 were analysed, as were decisions taken in respect of an equivalent-sized sample of white males: more than 2,800 cases in all. Sentences imposed on more than 400 female offenders – minority ethnic and white – by the same courts in the same year were also analysed. The findings were published in 1992 as Race and Sentencing (widely known as the Hood Report).26 They revealed that African-Caribbean male defendants were greatly overrepresented in the flow of cases into the five Crown Court centres as compared with their number in the local population. The study also found that a higher proportion of convicted African-Caribbean defendants than convicted white or Asian defendants had been sentenced to custody and that the degree of their apparently differential treatment varied markedly from court to court. This raised the question of whether these differences could legitimately be accounted for by factors such as the seriousness of the offences committed, the offender’s prior criminal record, or other matters that it is proper for a court to take into account when passing sentence. Statistical analyses revealed that such legitimate factors did indeed account for most of the differentials. However, overall, the probability of an African-Caribbean male defendant being sentenced to custody was between 5 and 8 per cent higher than would have been expected on the basis of the characteristics of the defendants; and, in one court, the probability was some 23 per cent higher. African-Caribbean male defendants who pleaded not guilty were also found to be more likely to receive longer sentences than white defendants who pleaded not guilty. Because a significantly higher proportion of the African-Caribbean than white defendants had pleaded not guilty, and thus failed to get a ‘sentence discount’, this differential treatment was likely to have had a marked impact on the relative proportion of African-Caribbean males in the prison population. On the other hand, Asian defendants did not appear to be treated disadvantageously as far as being sentenced to custody was concerned, although those who had pleaded not guilty also received longer sentences than

26

See above n. 25.

7

A Fair Hearing?

expected. Hood’s research was therefore consistent with some degree of racial discrimination but this could account for only a relatively small proportion (estimated at one-fifth) of the overrepresentation of AfricanCaribbean males in the prison population. Although the differences identified in the Hood Report – which received extensive coverage in the press – were, in general, not as large as most prior commentators had imagined, they were substantial enough to be taken as sufficient proof that the problem was one that needed to be tackled.27 They convinced the Lord Chancellor, Lord Mackay, that all High Court judges, all circuit judges, and all part-time recorders and assistant recorders in England and Wales should take part in a compulsory programme of ‘ethnic awareness’ training to be organised by a newly established Ethnic Minorities Advisory Committee (EMAC) of the Judicial Studies Board.28 The training began in November 1993 and its purpose was to ‘assist all who act in a judicial capacity in courts and tribunals to avoid discriminating, or creating the perception that they are discriminating, on racial grounds against members of ethnic minorities that appear before them’.29 Judges were also provided with data that had been produced under section 95(1)(b) of the Criminal Justice Act 1991, which requires the Home Secretary to publish annually such information as he considers expedient for the purpose of ‘facilitating the performance by [those engaged in the administration of criminal justice] of their duty to avoid discriminating against any persons on the ground of race or sex or any other improper ground’. This data was reinforced by the publication in June 1994 of the Judicial Studies Board’s first Handbook on Ethnic Minority Issues,30 designed specifically to guide judges in their handling of cases involving minority ethnic persons.

27

For a critical reaction to Race and Sentencing, see Tamar Halevy, ‘Racial Discrimination in Sentencing? A Study with Dubious Conclusions’ [1995] Criminal Law Review 267–271; and for responses to it, see Roger Hood, ‘Race and Sentencing: A Reply’ [1995] Criminal Law Review 272–279, and Andrew von Hirsch and Julian V. Roberts, ‘Racial Disparities in Sentencing: Reflections on the Hood Study’ (1997) 36 The Howard Journal of Criminal Justice 227–236. 28 EMAC was created in June 1991. It has since been renamed the Equal Treatment Advisory Committee (ETAC). 29 First Annual Report of the Ethnic Minorities Advisory Committee (Judicial Studies Board, September 1992), at p. 18. For a discussion of the impact of training, see Chapter 8 below. The training consisted of a programme of residential one-day seminars. The main programme of training for full-time and part-time judges sitting in the Crown Court was completed in 1996. It was later extended to include district judges and stipendiary magistrates: see the Equal Treatment Bench Book (Judicial Studies Board, August 1999), at p. 3. 30 The Handbook was reissued as the Equal Treatment Bench Book in 1999 (see above n. 29). A copy is sent to all full-time and part-time judges.

8

Equal justice in a multi-cultural society

Since the Hood Report appeared in 1992, few studies of sentencing practice relating to ethnic minorities have been published. This is partly due to the conclusion of a sub-committee set up by the Criminal Justice Consultative Council (CJCC) in 1994 to examine Race and Criminal Justice. Chaired by Her Honour Judge Elizabeth Fisher. The Fisher Report concluded that there would be no immediate advantage in carrying out a further quantitative study of racial disparities in sentencing along the lines of the Hood Report, because it ‘would be unlikely to establish a different conclusion’.31 Nonetheless, in the mid-1990s, a Home Office study of sentencing practices in magistrates’ courts and the Crown Court, which only included a relatively small number of ethnic minority defendants in the sample, found that in the Crown Court, ‘ethnic minority males were not significantly more likely to receive a custodial sentence than white males when other factors were taken into account’. In the magistrates’ courts, however, Asian men were found to be ‘significantly more likely to be sentenced to custody than would have been expected on the basis of their offence and other factors’.32 More recently, Statistics on Race and the Criminal Justice System 2000, published by the Home Office under section 95 of the Criminal Justice Act 1991, reported that ‘information collected from five pilot [police force] areas on magistrates’ court decisions indicated that, excluding those defendants committed to the Crown Court for trial . . . [t]here was no clear evidence of substantial differences in the use of custody’.33 Yet this cannot be regarded as conclusive evidence because, as far as we are aware, no attempt was made to control for the seriousness of the charges or the previous histories or other legally relevant characteristics of those sentenced. Indeed, two years later, the Home Office warned that it was not possible to say whether any of the differences found in the pilot areas had been the result of decisions taken at an earlier stage of the criminal justice process or whether they reflected discrimination by the courts.34 Thus, evidence as regards objectively measurable differences in the treatment accorded to persons of different ethnic backgrounds in the

31

Race and the Criminal Justice System (Criminal Justice Consultative Council, June 1994). Claire Flood-Page and Alan Mackie, Sentencing Practice: an examination of decisions in magistrates’ courts and the Crown Court in the mid 1990s, Home Office Research Study No. 180 (Home Office, 1998), at pp. 116–120. 33 Home Office, 2000, at p. v. See also pp. 37–38. 34 See Statistics on Race and the Criminal Justice System 2002 (Home Office, 2003), Chapter 6, at p. 35. 32

9

A Fair Hearing?

courts remains rather mixed.35 Nonetheless, claims continue to be made that ‘black offenders’ (not specifically defined) have been treated very much more severely by the courts than white offenders. In 1994, for example, The Voice went so far as to assert that: ‘Black men are eight times more likely to be imprisoned than White men, while Black women are 20 per cent more likely to be jailed than White women’.36 The ‘only possible explanation’ for such discrepancies, according to Frances Crook, the Director of the Howard League for Penal Reform, was ‘racism’.37 Similar views were expressed in the House of Lords debates on the Stephen Lawrence Inquiry in 1999. Lord Knights, a former Chief Constable, stated that ‘Research has clearly indicated that ethnic minority prisoners are disadvantaged in so far as bail and methods of trial and sentencing are concerned’38 – an opinion strongly endorsed by the Chair of the CRE, Gurbux Singh, in a speech in September 2000 at the Annual Conference of the Howard League, in which he said that black people or people from an ethnic minority were ‘more likely to go to prison than get a community sentence’ and ‘more likely to be imprisoned with a longer sentence’ than white offenders who had been convicted of a similar crime.39

How do ethnic minority citizens experience the courts? In 1984, the Policy Studies Institute’s report Black and White Britain asserted that ‘many black people lack confidence in the way they are treated in the courts’.40 This view was supported two years later when a report from NACRO’s Race Issues Advisory Committee concluded that: 35

In 1999 the Home Secretary denied that there were any significant differences in sentencing but this was challenged by Lord Dholakia on the ground that the ethnic identity of defendants was not known in at least one-quarter of the cases: ‘thus making it difficult to identify ethnic differences in court decisions at local level’. Talking mostly about young people, he declared: ‘we are destroying the confidence of black people in this system. Coming after what happened in the case of Stephen Lawrence, it is even more painful. The result of all this is that 18 per cent of the male prison population is black and 26 per cent – one in four women – in British prisons is black’. See HL Debs, Vol. 607, cols 991–993, 2 December 1999. 36 See The Voice, 8 February 1994. 37 See The Voice, 10 September 1996. See also The Voice, 27 March 2000 where she is reported as saying: ‘[I]t is also clear that discrimination operates at every stage in the criminal justice system, from the chances of being arrested to the decision of the court and the length of the sentence’. 38 See HL Debs, Vol. 599, col. 892, 15 April 1999. 39 The full text of this speech is available on the CRE’s website (www.cre.gov.uk). 40 C. Brown, Black and White Britain, The Third Policy Studies Institute Survey (London: Heinemann, 1984).

10

Equal justice in a multi-cultural society

when Black people come before the courts, they expect to receive a hostile response from court officials and from the Bench . . . Most worrying of all is the lack of confidence which Black people (as defendants and also as barristers and solicitors) have in the court process as it relates to Black people. No doubt the Committee had taken account of the evidence submitted by the Society of Black Lawyers to the effect that ‘the poor image which black people have of the courts leads to the sense that if one is black in court, one has to prove one’s innocence rather than the court to prove one’s guilt’.41 In similar vein, Sylvia Denman, a highly respected and knowledgeable black expert on race relations and criminal justice, reported to the CJCC in 1992 that ‘ethnic minorities experienced the system as being biased’.42 However, hard empirical evidence had been thin on the ground. The only published research was a small-scale study by Eric Smellie (a black probation officer) entitled Black People’s Experience of Criminal Justice. Based on interviews with 52 persons ‘on probation or participants in NACRO projects’ (half of whom were ‘black males’), the report revealed that whereas 64 per cent of the white group thought that their sentences were fair, only 37.5 per cent of the black group thought so. Put starkly the other way round, this meant that more than six out of ten black offenders believed that they had been unfairly treated in terms of the sentence they had received. And there was an even greater difference in how these people thought they had been generally treated by the courts: just 29 per cent of the black group said that they were satisfied with their treatment compared with 79 per cent of the white group. The author described the picture as one of ‘fear, worry and confusion’.43 Yet, interestingly and troubling as these findings were, the scale and method of research left a lot to be desired. Thus, those who argue that minority ethnic citizens have been discriminated against and have thus lost confidence in the fairness and impartiality of the criminal justice system have not so far been able to draw directly upon evidence systematically gathered from those who have had first-hand experience of being dealt with by it. Such evidence is important: if a person’s experience at the hands of the criminal courts is perceived as unfair, this can have a corrosive effect not only on that person’s confidence and trust in legal institutions but, if communicated

41

Black People and the Criminal Justice System, Report of the NACRO Race Issues Advisory Committee (NACRO, 1986), at pp. 11–12. 42 Quoted from the Fisher Report at p. 1, emphasis added, see above n. 31. 43 Black People’s Experience of Criminal Justice (NACRO, 1991), at pp. 27–28.

11

A Fair Hearing?

more widely, on the perceptions of others in their own community and beyond.44 The need to take such perceptions seriously has been recognised by some senior members of the judiciary. In a public lecture delivered in 1993, for instance, Mr Justice Brook (as he then was), the Chair of the Judicial Studies Board’s Ethnic Minority Advisory Committee, reminded judges of their ‘duty to ensure . . . that the courts are not only in fact fair . . . but are also seen by everyone to be fair. A free society does not mean very much if everyone, black and white alike, does not have complete trust in the fairness of the courts’.45 The Lord Chancellor, Lord Mackay, backed him up in this opinion. He stressed that it was ‘absolutely central to a judge’s job that he or she is not only fair but is also seen by fair-minded people to be fair’. But ‘[r]ightly or wrongly this is not the picture that many fair-minded Black people are getting from the way judges handle trials’.46 These concerns were also reflected in the Fisher Report, which recommended that a survey should be conducted ‘to obtain more information on ethnic minorities’ perceptions of the criminal justice system’.47 Thus, in his Foreword to that report, Lord Taylor, the late Lord Chief Justice, wrote: Race issues go to the heart of our system of justice, which demands that all are treated as equals before the law. It is a matter of the gravest concern if members of the ethnic minorities feel they are discriminated against by the criminal justice system: more so if their fears were to be borne out in reality. [emphasis added] Although a study of perceptions was not launched at that time, the idea was brought to life by Sir William Macpherson in his shocking report, published in 1999, on the events surrounding the murder in London of the black teenager Stephen Lawrence. Although his inquiry concentrated primarily on the behaviour and shortcomings of the police, Sir William concluded that the system as a whole was perceived by ethnic minorities as biased against them: 44

This point was made by speakers in Parliament. See, for example, the contribution to the debates on the 1991 Criminal Justice Bill made by Mr Peter Archer (HC Debs, Vol. 186, esp. cols 335–336, 20 February 1991) and Mr Barry Sheerman (HC Debs, Vol. 193, cols 949–950, 25 June 1991). See also the remarks made by Mr Edward Garnier (HC Debs, Vol. 354, col. 1007, 25 July 2000): ‘. . . the ethnic minority communities, or a large number of members of those communities, have a perception that they do not receive equal treatment in front of the magistrates. No one suggests that that is a universal practice, but it is a strongly held perception in such groups’. 45 See his Kapila Lecture, The Administration of Justice in a Multi-Cultural Society, which was delivered on 18 November 1993 (at p. 1 of the transcript). 46 The Voice, 8 February 1994. See also The Voice, 28 February 1995. 47 See above n. 31, at pp. 2–3.

12

Equal justice in a multi-cultural society

First and foremost amongst our conclusions . . . is that there is a striking and inescapable need to demonstrate fairness, not just by the Police Service, but across the criminal justice system as a whole, in order to generate trust and confidence [emphasis added] within ethnic communities, who undoubtedly perceive [emphasis added] themselves to be discriminated against by ‘the system’. Just as justice needs to be ‘seen to be done’ so fairness must be ‘seen to be demonstrated’ in order to generate trust.48 This view was echoed by the Judicial Studies Board which, in a publication entitled Race and the Courts, accepted that: ‘there is evidence of a widespread lack of confidence in the justice system, particularly among the Black and Asian communities’.49 The significance of perceptions arising from experience was also emphasised in parliamentary debates. The former Conservative Attorney General, Lord Mayhew of Twysden, considered that perception ‘sometimes matters more than objective fact’.50 Lord Windlesham, a former Conservative Home Office minister, a former Chairman of the Parole Board and a distinguished writer on criminal policy, made the point even more strongly: ‘it is perceptions that matter in considering the views of ethnic minorities . . . If policies are formulated that overlook that reality, the result is bound to be flawed’.51 And Lord Dholakia, a tireless spokesman on race issues in criminal justice, asserted a ‘more fundamental point’, namely ‘that many ethnic minorities – even if it is not the reality – still perceive that there is unfairness in the criminal justice system because the law is inevitably, for reasons of history, in the hands of predominantly white people’.52 In contrast to these views is the evidence that emerged from the British Crime Survey (BCS) in 2000, which suggested that members of ethnic minority communities were no less confident than white people in the 48

Report of the Stephen Lawrence Inquiry, Cmnd 4262-1 (Stationery Office, 1999), at para. 46.30. Except where noted, emphasis in original. 49 (Judicial Studies Board, 1999), at p. 1. See also p. 8: ‘Surveys have revealed highly negative perceptions of the criminal justice system among members of racial minorities’. For example: Only 11 per cent of young black people in a 1994 survey believed that ‘judges give fair and equal treatment to everyone in this country’ compared to 25 per cent of young white people. The Race sub-Committee of the CJCC (which had been reconvened) emphasised again in 2000 the need to promote the confidence of ethnic minorities in the criminal justice system, CJCC Newsletter, Issue Twenty, August 2000. 50 See HL Debs, Vol. 607, col. 955, 2 December 1999. 51 See HL Debs, Vol. 608, col. 1273, 20 January 2000. See also the similar remarks of Lord Phillips of Sudbury, a former Chairman of the Legal Action Group, HL Debs, Vol. 618, col. 1017, 28 September 2000: ‘Public confidence is a sine qua non for an effective system of justice, upon which everything else depends’. 52 See HL Debs, Vol. 608, col. 1279, 20 January 2000.

13

A Fair Hearing?

criminal courts. The BCS found that, although black and Asian respondents were less likely than white respondents to feel confident that those accused of crime would be treated fairly and with respect, their ‘concern about treatment of suspects [was] directed predominantly at the police’.53 Indeed, somewhat higher proportions of both black and Asian respondents than white respondents said that they thought that magistrates and judges were ‘doing a good or excellent job’.54 On the other hand, the proportions responding positively from all sections of the community were comparatively low: in respect of magistrates, 26 per cent of white, 28 per cent of black and 32 per cent of Asian respondents; and in relation to judges, 20 per cent of white, 23 per cent of black and 34 per cent of Asian respondents. Furthermore, whatever credence might be given to these findings, they do not, of course, tell us anything specific about the views of those minority ethnic citizens who had actually experienced the criminal courts at first hand.

The need for a new study It was against the background described and analysed above that the study reported in this monograph was conceived. In the summer of 2000 Roger Hood and Stephen Shute responded to an invitation by the Lord Chancellor’s Department to tender for a research project as part of a programme of inquiry ‘dedicated to ensuring that the court system is equipped to deal in a fair and just manner with the needs of a diverse and multicultural society’. Given the paucity of research on a subject of such high salience, there was clearly a need for a detailed and nuanced study of the extent to which members of minority ethnic groups interpreted their treatment by the criminal courts as having been unfair 53

Catriona Mirlees-Black, Confidence in the Criminal Justice System: Findings from the 2000 British Crime Survey, Home Office Research Findings No. 137 (Home Office, 2001), at p. 3. Although the BCS did distinguish between those who had experienced the criminal justice system as a person accused of crime (10 per cent of the sample of just over 10,000), and showed that they were less likely – 61 per cent compared with 69 per cent of all respondents – to say that it respected the rights of and treated fairly people accused of committing crime, the sub-sample of accused persons contained too few from ethnic minorities (35 were black and 11 were Asian) to allow the researchers to break down the responses according to ethnicity. We are grateful to Catriona Mirlees-Black and Jonathan Allen of the Home Office Crime Survey Section for providing this information. Nor did the findings in general distinguish between treatment by the criminal courts and treatment by other agencies or persons across the criminal justice system as a whole. 54 See above n. 53, at pp. 3–4. The proportions responding positively for magistrates were: 26 per cent of white, 28 per cent of black and 32 per cent of Asian respondents; for judges the figures were: 20 per cent of white, 23 per cent of black and 34 per cent of Asian respondents.

14

Equal justice in a multi-cultural society

or lacking in respect. And, if they did believe that they had been unfairly treated, whether they ascribed this to differential treatment on the grounds of their race, ethnicity or colour – however they might describe it – and how this might have affected their confidence in the criminal courts. This study is therefore concerned primarily with the views of minority ethnic defendants in both the Crown Court and magistrates’ courts. But these are not, of course, the only persons who have experience of the criminal courts, nor the only persons who have a perspective on how courts respond to ethnic minorities who appear before them. For this reason we also canvassed views (although on a smaller scale) from witnesses, court staff, lawyers and legal representatives, magistrates, District Judges, Recorders and Circuit Judges. The scope of the questions put to them will become apparent when we discuss their responses later in the monograph. The specific focus of the research was thus to investigate whether, and if so to what extent, and on what grounds, members of ethnic minorities who had appeared in the criminal courts had perceived their treatment to have been unfair or discriminatory, and how this affected their trust or confidence in the criminal courts. It explores their subjective experiences and the way in which they had interpreted these. It needs to be emphasised, in case there should be any misconception, that this was not an attempt to produce objective measurements of whether they had in fact been treated differently by the criminal courts.

15

Chapter 2

Researching perceptions

Some necessary conceptual distinctions In designing this research, several conceptual issues had to be addressed. First, it was important to recognise that members of ethnic minorities dealt with by the criminal courts might, just like white persons, perceive their treatment as unfair but without attributing that unfairness to racial prejudice, bias or discrimination. We took the view, therefore, that it was necessary to have, as a comparative benchmark, perceptions of fairness gathered from a sample of white people who had appeared in a criminal court. Without this, it would not have been possible to assess whether the proportion of ethnic minorities complaining of unfairness was especially large or even smaller than might have been expected. Second, while it was essential to try to gain the trust of respondents so that they would feel able to voice their feelings honestly and openly, there was an obvious danger that, just by raising the issue of unfairness and racial bias, negative assessments of their treatment in court and the sentence they had received might be evoked, where no such feelings had existed prior to the question being posed. The interview schedule therefore had to be carefully constructed so as to try to maximise disclosure of negative experiences while minimising exaggeration. On the other hand, we also had to ensure that anyone who harboured feelings that their treatment had been unfair and/or racially biased was able to say so. Thus, a number of questions were asked from different angles, so as to give respondents ample opportunity to make such feelings known. Third, it is obvious that if one asks people who have been dealt with by the criminal courts, sometimes quite severely, whether they believe 16

Researching perceptions

that their treatment was fair, one can hardly expect 100 per cent to say ‘Yes’. As Lord Justice Auld put it: ‘By its very nature, the criminal justice system is bound to engender a significant level of dissatisfaction from those, like convicted and sentenced offenders, who feel that it has treated them unjustly’.55 Moreover, in a society where there has been a history of racial discrimination, it is to be expected that some minority ethnic defendants will harbour a suspicion that their treatment has been affected by racial bias or prejudice. For both these reasons it was not easy to find an objective benchmark by which to evaluate the findings. At what percentage point should one regard the proportion of defendants that believe they have been unfairly treated, and especially unfairly treated on grounds of their ethnic origin, as indicating a serious problem for the criminal courts? For example, if one were to find that, say, 75 per cent of defendants from ethnic minorities perceived their treatment in the courts to have been fair, should this be regarded as ‘good news’, on the grounds that one could hardly expect it to be much higher in the circumstances? Or should one be more concerned that as many as one in four regarded it as unfair? This should be borne in mind in interpreting the findings reported in this mongraph. Fourth, the focus of the study was not to seek opinions on whether the final outcome of the criminal proceedings had been perceived as favourable (in common parlance, whether the defendants thought that they had ‘got a result’). Rather, it was to gauge perceptions of the fairness of the proceedings and the outcome. In other words, our research concentrated both on what Tom Tyler has called procedural fairness – which includes ‘assessments of neutrality, the trustworthiness of the authorities, and the degree to which people are treated with dignity’ – and what he termed distributive justice – an assessment of the comparative fairness of the outcome, which differs from its mere favourability to the person concerned. However, all these elements are not entirely separate. There is likely to be an interaction between judgments of fairness (i.e. both procedural fairness and distributive justice) and judgments of favourability. As Tyler found in his empirical study of the citizens of Chicago: Those who received negative outcomes evaluated procedural justice more heavily in terms of bias, consistency, and the effort of authorities to be fair. Those who received poorer outcomes looked beneath the surface and attempted to judge whether the authorities they had dealt with were motivated to be fair. They also looked for 55

See Review of the Criminal Courts of England and Wales, Report (Stationery Office, 2001), at para. 1.31, p. 18.

17

A Fair Hearing?

surface evidence of bias or inconsistency on the part of the decision maker.56

Getting at the issue In order to be able to distinguish between perceptions of procedural unfairness or distributive injustice in general and those which were specifically rooted in racial bias, the interviewee was first asked the general question: ‘Has anything happened, in relation to this case from the first time you came into court until now, that has made you feel you have been treated in a way that was unfair, was biased, or showed you a lack of respect?’ We noted what, if anything, had been regarded as unfair. Only if a person from an ethnic minority said that he or she felt that there had been unfairness, bias or lack of respect did we go on to ask the specific question: ‘Do you think what happened had anything to do with the fact that you are from an ethnic minority?’ And only if there was an affirmative response did we go on to try to determine what had happened that had made them believe that their unfair treatment had had a racial dimension. When faced with the responses, we had to decide how to treat the relatively few defendants who, although they did not immediately and definitely say that they thought that any perceived unfair treatment was connected with their ethnicity, nonetheless indicated later in the interview (usually when discussing the sentence they had received in comparison with others) that their treatment in court had been affected in some way by racial bias. We took the view that, even though racial bias had not immediately come to their mind, we were justified in reclassifying these defendants as persons who perceived such bias: in other words an initial ‘No’ or equivocal answer was replaced by a ‘Yes’. Although only a relatively small proportion of cases were so reclassified, we took this approach in order to ensure that we would not be in danger of minimising the proportion of defendants who said that they had been unfairly treated because of their ethnicity. On the other hand, given this policy, and taking into account that several opportunities had been provided in the interview to express the opinion that their case had been affected by racial bias in court, we did not feel that it would have been right to inflate the findings further by including the ‘don’t knows’, the ‘maybes’ and the ‘might have beens’ in the total who believed that their 56

See Tom R. Tyler, Why People Obey the Law (New Haven: Yale University Press, 1990), at p. 143. Also Tom Tyler and Steven L. Blader, Co-operation in Groups: Procedural Justice, Social Identity and Behavioral Engagement (Philadelphia: Psychology Press, 2000), at pp. 9–11.

18

Researching perceptions

case had been affected by racial bias. The extent to which their inclusion would have affected the overall findings is discussed below (see page 37, footnote 91, page 38, footnote 93 and page 39, footnote 94). Thus, although we have tried to quantify the proportion of defendants who felt that they had been unfairly treated, it must be recognised that allegations of discriminatory or prejudicial treatment on the grounds of race were expressed with varying strengths and levels of clarity and certainty. Also, some respondents gave answers to one question which were inconsistent with the answers they had given to other questions. We therefore did our best to make sense of what was said within the total context and tone of the interview and the percentages quoted must be read with this in mind. They should not be given the status of exactitude. Rather they should be taken to indicate the general magnitude of the frequency with which views were expressed. For this reason, we have rounded percentages and, when summarising the findings, have used more general terms such as, ‘about one in five’, ‘around a quarter’, etc. Furthermore, we have used copious extracts from interviews to illustrate the range of concerns, the depth of feeling and the nuances expressed by our respondents. Thus, quantitative and qualitative approaches have been combined. As the research aimed to investigate perceived treatment by the criminal courts, defendants and witnesses were asked ‘to think back over the whole process in relation to their case from the first time they came into court until now’. However, some people found it hard to keep focused solely on what had happened in court and to disentangle their views about their treatment by the court from their views about their treatment by other criminal justice agencies or personnel prior to their appearance in court, especially the police, the prosecution service, the probation service and the prison service. We took note of these latter types of complaint and distinguished them57 from complaints that related solely to the defendant’s treatment by the criminal courts, while recognising that perceived unfair treatment prior to appearance in court could influence perceptions of treatment in court. But, even as far as the court was concerned, the dissatisfaction may have been with lawyers working in the court, or with the jury’s decision, rather than with the staff of the court itself or with members of the judiciary or the magistracy. So it was essential to be sensitive to the 57

These respondents either misunderstood the question they were asked or ignored it in order to get other complaints ‘off their chest’. Some might not have regarded the court as distinct from the other criminal processes. But these non-court complainants should not be regarded as the total number of persons who might have complained of unfairness at the hands of non-court agencies had we asked them to express their perceptions of their treatment by all agencies in the criminal justice system, not just their treatment in court on their current appearance.

19

A Fair Hearing?

nature of the complaint being made and what had given rise to it. Was it the attitude or behaviour of court staff? Was it the attitude or manner of the magistrates or judge? Was it the type or length of sentence imposed? Where, as happened occasionally, a respondent complained of unfairness on a number of fronts, we used our own judgment as to which complaint had been the most prominent and serious: in general, putting perceptions of unfairness attributed to the conduct or attitude of judges or magistrates at the top of the list. Thus, in the analysis that follows, we report the main issue that was perceived by the defendant to be evidence of unfairness or racial bias. A further consideration was that any perceived unfairness or bias might not have arisen specifically nor only in relation to the current case. Rather it may have had its roots in past experiences, whether personal or of others known to the defendant, or even in generalised beliefs (what ‘everybody knows on the street’). All of these things might have led the person concerned to interpret his or her treatment in the current case as unfair. We therefore investigated the respondents’ more general attitudes and beliefs about the treatment of ethnic minorities by the criminal courts in order to see to what extent these were based on their personal experiences or on the experiences or say-so of others. Another way of looking at the question of unfair treatment was to ask whether the persons concerned (if they had previously appeared in a criminal court) believed that their treatment had been better, the same, or worse than before; and if better or worse, why. This could also be linked to whether they felt that, if they were to appear in court again, they would expect to be treated fairly; which in turn could be related to their general level of confidence in the court system. Had their current treatment changed their confidence in the criminal courts? If so, were they now more or less confident than they had been before? What, in their opinion, might be done – if anything – to improve confidence in the criminal courts, whether in the magistrates’ courts or the Crown Court? Another issue was how best to identify the ethnicity of those interviewed. Categorisation of individuals by race or ethnic group in past studies has often been rather crude, especially when researchers have had to rely on poor racial identification in case records. Also, the term ‘black’ has sometimes been applied to all ‘persons of colour’, irrespective of their race, ethnicity or nationality, on the grounds that discrimination on the basis of ‘skin colour’ or ‘being visibly different’ is what matters most. But most recent studies, including government reports published under section 95 of the Criminal Justice Act 1991, have grouped together persons of African and African-Caribbean background, as well as those of ‘mixed race’, and designated them as ‘black’. People from the Indian subcontinent, whether from India, Pakistan, Bangladesh or Sri Lanka, have been grouped together as Asians, again including 20

Researching perceptions

persons of mixed race. All people of European descent have been designated as ‘white’.58 The vital principle, however, especially in studies of perceptions, is to base racial/ethnic categorisations on how people describe themselves. We did this by adopting the 16-categories model of ethnic classification used in the 2001 National Census, and only on the basis of self-definition did we group people into the three broad ethnic categories – white, black and Asian, plus a few ‘others’.59 There is a danger, of course, that such a classification may obscure some important differences in the treatment and perceptions of subgroups within these broader categories, and also between those who have been born and brought up in this country and those who are more recent arrivals. Yet, when broad minority ethnic groups are disaggregated, even in fairly large-scale studies of the kind reported here, the numbers in each sub-category become too small for meaningful comparisons to be drawn between them with any statistical confidence. It is for this reason, as well as to make possible comparisons with other data, that our findings are largely presented using the broad ‘black, Asian and white’ ethnic categories. But where case studies are discussed we have identified the more specific ethnicity of the persons involved as they chose to describe themselves.

The fieldwork The main fieldwork for this research was carried out between April 2001 and June 2002 in adult courts (both magistrates’ courts and the Crown Court) in three localities: Manchester, Birmingham and South London.60 These areas were chosen because of the high proportion of persons from ethnic minority backgrounds resident there, with the expectation that this would provide a reasonably large sample of such persons coming before the courts within the time available for the fieldwork (four to five months in each area). Before embarking on the study proper, we conducted a small-scale pilot study at Isleworth Crown Court centre and Uxbridge magistrates’ court. Again, these courts were chosen because of the high proportion of persons from ethnic minority backgrounds resident in their catchment areas. We did not discard the findings from the pilot study and have included them in the analysis. 58

See Statistics on Race and the Criminal Justice System 2002 (Home Office, 2003). This classification is shown in the coding to Question 8 of the questionnaire in the Appendix at pp. 136–137 below. Those of mixed white/ethnic minority background were classified according to the ethnic minority concerned. 60 The Crown Court centre chosen in Manchester was at Crown Square; the South London courts were Inner London Crown Court centre and Camberwell Green and Tower Bridge magistrates’ courts. 59

21

A Fair Hearing?

It was impossible in a study like this to generate a ‘scientifically drawn’ representative sample of interviewees. This would have meant identifying cases – both ethnic minority and white – in advance and then waiting for all procedures in the case to be completed before conducting an interview. Given the time-scale and resources at our disposal, the length of some trials, the numerous delays and remands in many cases, the endless waiting around, we had to interview defendants as they became available – hopping from courtroom to courtroom and waiting for the end of proceedings to obtain an interview when the respondents could reflect on all that had happened to them.61 We also had to find a way to identify cases in which the defendant or witness was from an ethnic minority, so as to maximise the size of the sample. Sometimes we were able to do this from a distinctive name on the court list, which was made available to us in advance. In the magistrates’ courts we also had access to the police charge sheets, included in the court dossier, which gave an ethnic identification.62 But in many cases the person was identified by one of the research team by sight. In all cases respondents were given the opportunity to self-report their ethnic identity. Obviously, no interview could be conducted without the consent of the interviewee. This was forthcoming from between 80 and 90 per cent of the defendants in the magistrates’ courts and the Crown Court and from nearly all the witnesses we approached.63 Eighty-two per cent of defendants agreed for the interview to be tape-recorded, which was invaluable because where there was a complaint of unfairness which was attributed to ethnicity it allowed us to listen to what the defendants had actually said, rather than rely entirely on the interviewer’s note. This enabled us to capture the nuances and strength of their expressions of discontent. We were also successful in obtaining the consent of most of

61

In any case it would not have been proper for us to interview defendants or witnesses before the case had been completed. 62 The police charge sheet was not available in the Crown Court, nor was there any other ethnic identification in the file or computer record at two of the Crown Court centres: it only began to be included on the CREST computerised system by the time we reached the third Crown Court centre. 63 Interviewers were asked to complete a form whenever a defendant or witness refused an interview or the interview had to be terminated prematurely. These indicated that 83 (17 per cent) of 499 defendants approached in the magistrates’ courts declined or terminated their interviews, compared with 41 (10 per cent) of 403 defendants in the Crown Court. The reason for the difference between the courts is that a much higher proportion of those we approached in the Crown Court were in custody: indeed, only a quarter (23 per cent) of the recorded ‘refusals’ were from defendants in custody. The recorded ‘refusal rates’ for white (11 per cent) and minority ethnic (15 per cent) defendants were very similar.

22

Researching perceptions

the witnesses we approached, all of the judges, and all but a tiny number of the magistrates, lawyers and court staff.64 A good deal of thought was given to the issue of timing and place to conduct the interviews with defendants. At first we had considered gaining the defendant’s consent after all proceedings in the case had been completed and then arranging an interview at a later date (either in prison or at the person’s home or other agreed venue) after the experience and the outcome (especially a sentence of imprisonment) had had time to ‘sink in’. But the time involved in travelling to obtain each interview, and the danger that when we arrived at the prison we would find that the person had been already moved to a distant new establishment – as indeed we experienced – would have greatly restricted the number of interviews we could have conducted in the time available. We therefore decided, wherever possible, to see defendants immediately after the case against them had been completed, either in an interview room in the court or (with the permission of the security company concerned65) in the court cells before transfer to prison. It is likely that the feelings of many defendants were at this time running higher than they would have been at a later date; but it is also true that some might have built up resentments if seen later that were not there originally. A further advantage of ‘striking while the iron was hot’ was that the matter was fresh in their minds. They appeared pleased to have someone to talk to about their experience and feelings. The semistructured interviews conducted with defendants in the Crown Court lasted, on average, about 30 minutes and in the magistrates’ courts, where fewer were in custody, about 20 minutes.66 The questionnaire is reproduced as an Appendix. We make no claims that the sample obtained for this study is representative of all who appear before the court (some of the possible biases are discussed below). However, the decision to approach defendants immediately after the case against them had concluded enabled us to obtain much larger samples than would otherwise have been possible: sufficiently large to allow comparisons to be made which could be tested for statistical significance between the experiences of minority ethnic people and white people. We were able to interview 362 defendants who

64

The interviews with judges and magistrates were not tape-recorded, but a very full note was taken. 65 We are very grateful to Securicor Custodial Services Ltd, Premier Prisons Services Ltd and Group 4 Security Services Ltd for permitting our fieldworkers to carry out the interviews while the prisoners were in their custody. 66 In the Crown Courts only 4 per cent took less than 15 minutes to complete and 10 per cent took 40 minutes or longer; in the magistrates’ courts, where fewer were in custody, 15 per cent lasted less than 15 minutes whereas just 4 per cent took 40 minutes or longer.

23

A Fair Hearing?

had appeared in the Crown Court67 and 416 defendants who had appeared in the magistrates’ courts68 at the three main sites, plus the pilot study: 778 in all. These were distributed in the following broad ethnic categories: At the Crown Court: ( 171 (47 per cent) were black ( 75 (21 per cent) were Asian ( 110 (30 per cent) were white, and 6 (2 per cent) were from ‘other’ ethnic groups – all from North Africa or the Middle East.69 At the magistrates’ courts: ( 214 (51 per cent) were black ( 113 (27 per cent) were Asian ( 86 (21 per cent) were white, and 3 (less than 1 per cent) were from ‘other’ ethnic groups.70 In the time available it was not possible to interview as many witnesses, but we were able to obtain the consent of 150. These broke down as 93 in the Crown Court, 68 (73 per cent) of whom were from ethnic minorities; and 57 in the magistrates’ courts, 41 (72 per cent) of whom were from ethnic minorities. Altogether, 41 witnesses were white, 41 black, 64 Asian and 4 ‘other ethnicity’. Four out of five were witnesses for the prosecution.

67

There were 109 at Manchester Crown Square (30 per cent), 93 at Birmingham (26 per cent), 129 at Inner London (36 per cent), and 31 (9 per cent) at the ‘pilot’ Isleworth Crown Court. Ninety per cent of those interviewed were male. The proportions of females were: 13 per cent of white, 11 per cent of black and 4 per cent of Asian defendants. 68 There were 152 at Manchester (37 per cent), 147 at Birmingham (35 per cent), 89 (21 per cent) in South London (70 at Camberwell Green and 19 at Tower Bridge), and 28 (7 per cent) at the ‘pilot’ Uxbridge magistrates’ court. Ninety-two per cent were male and 8 per cent female (11 per cent of the white, 10 per cent of black and 3.5 per cent of Asian defendants). 69 The 171 black defendants in the Crown Court included 89 who described themselves as ‘Black Caribbean’; 41 as ‘Mixed Race’; 26 as ‘Black African’; and 15 as ‘Other Black background’. The 75 Asian defendants in the Crown Court included 40 who described themselves as ‘Pakistani Asian’; 21 as ‘Indian Asian’; 7 as ‘Bangladeshi Asian’; 4 as ‘Other Asian background’; and 3 as ‘Mixed Race’. 70 The 214 black defendants in the magistrates’ courts included 100 who described themselves as ‘Black Caribbean’; 58 as ‘Black African’; 30 as ‘Mixed Race’; and 26 as ‘Other Black background’. The 113 Asian defendants in the magistrates’ courts included 57 who described themselves as ‘Pakistani Asian’; 23 as ‘Indian Asian’; 21 as ‘Other Asian background’; 11 as ‘Bangladeshi Asian’; and 1 as ‘Mixed Race’.

24

Researching perceptions

Some possible biases Three-quarters of defendants in both the Crown Court and the magistrates’ courts had been born in the British Isles and nine out of ten were British citizens. However, more than a quarter (29 per cent) of the black and a third (33 per cent) of the Asian defendants had been born overseas. Almost all those interviewed (98 per cent) were fluent in English. We therefore came across relatively few cases where interpreters had been used, although in these circumstances it was naturally much more difficult to obtain interviews from defendants.71 It should be noted that minority ethnic defendants were not evenly distributed between the Crown Court centres or between the magistrates’ courts. There were proportionately far more black defendants interviewed at South London, more Asian defendants at Birmingham and more white defendants at Manchester.72 At the magistrates’ courts, there were proportionately more black defendants in South London and Birmingham than at Manchester and again there were proportionately more Asian defendants at Birmingham.73 The implications of this are discussed on pages 64–69 below. As noted above, this was not a scientifically drawn random sample. It was therefore necessary to take account of any differences in the characteristics of defendants from white and minority ethnic backgrounds that might have had an effect on the way in which they perceived their treatment in court. As expected, the great majority of defendants interviewed were male74 and most were relatively young. In the Crown Court, three-quarters were aged 26 or younger and there were no significant differences in this respect between the three ethnic groups.75 There were, however, differences in the magistrates’ courts: the 71

We interviewed only 17 defendants who were not fluent in English. Thus, at the Crown Court centres, half (53 per cent) of the black defendants interviewed had appeared at Inner London Crown Court, where they predominated in the court lists (making up 69 per cent of those interviewed there). On the other hand, six out of ten of the Asian defendants interviewed (59 per cent) were at Birmingham Crown Court (where they accounted for 48 per cent of all those interviewed). In contrast, half the white defendants (51 per cent) were interviewed at Manchester (where they also accounted for half – 51 per cent – of those seen at that court). 73 Thirty-six per cent of the black defendants interviewed at the magistrates’ courts were at Birmingham and 32 per cent at Camberwell Green and Tower Bridge. Sixty-one per cent of the white defendants were at Manchester and half the Asian defendants at Birmingham. 74 Thirteen per cent of the white, 11 per cent of the black and 4 per cent of the Asian defendants were female. 75 For example, 27 per cent of white defendants were aged 21 to 26, 22 per cent of black, and 33 per cent of Asian defendants; 25 per cent of white defendants were aged between 27 and 34, 24 per cent of black, and 23 per cent of Asian defendants. 72

25

A Fair Hearing?

Asian defendants interviewed were much younger, two-thirds of them being aged 26 or below, compared with 46 per cent of the black defendants and 35 per cent of the white defendants. In terms of the offences of which the defendants had been convicted, a lower proportion of Asian (16 per cent) and black defendants (21 per cent) than white defendants (30 per cent) had been charged with an offence of non-sexual violence. Very few Asian defendants (seven per cent) had been charged with a drugs offence compared with black (23 per cent) or white (17 per cent) defendants. On the other hand, a much higher proportion of Asian (37 per cent) than either white (18 per cent) or black (13 per cent) defendants had appeared for offences involving dishonesty (theft, fraud, handling, etc.) and criminal damage. In the magistrates’ courts, more than half (57 per cent) of the defendants for whom information was available had appeared for a motoring offence, and in three-quarters of these cases it was a serious offence of dangerous driving, driving with excess alcohol, driving while disqualified or driving with no insurance. In the magistrates’ courts there were no significant differences between the different ethnic groups among those charged with serious motoring offences, nor for any other category of offence.76 By far the most important fact to bear in mind is that the sample of defendants interviewed in both the Crown Court and the magistrates’ courts was skewed towards the most serious outcomes that could be experienced. It overrepresented the convicted and the imprisoned. Only five per cent of those interviewed in both the Crown Court and the magistrates’ courts had been acquitted77 – a considerable underrepresentation from what we know of the acquittal rate at the courts studied. Obviously, one would expect those acquitted to have a more favourable view of the fairness of the outcome, although not necessarily of the fairness of the procedures. The reason why the research concentrated on the convicted is that we were unable – given the time and resources – to follow many trials to their completion. The researchers needed to get as many interviews with defendants as possible within the limited time that could be spent at each court. Where there had been a jury trial, it was not possible to predict when the jury would return with its verdict and if this happened, as it often did, at a time when the researchers were in another court room or interviewing a defendant in the cells, the acquitted 76

Fifty-four per cent of white, 58 per cent of black and 59 per cent of Asian defendants were convicted of motoring offences. 77 In the Crown Court we did not interview any white defendants who had been acquitted, but we did interview 21 from ethnic minorities: 14 (8 per cent) of the 171 black defendants, 6 (8 per cent) of the 75 Asian defendants, and one of the six ‘others’. In the magistrates’ courts the figures were 4 (5 per cent) of the 86 white, 10 (5 per cent) of the 213 black and 7 (6 per cent) of the 113 Asian defendants.

26

Researching perceptions

person would usually have left the court before it was possible to speak to him or her. In the Crown Court, as many as 79 per cent of those convicted were interviewed in the court cells after having been sentenced to imprisonment or youth custody. This is about 15 percentage points above what one would expect from a truly random sample of persons convicted in the Crown Court centres included in this study.78 On the other hand, the proportion of white and black defendants who received a custodial sentence was virtually the same (80 and 82 per cent respectively) – although a smaller proportion of Asian defendants (73 per cent) had been imprisoned.79 Consequently, a higher proportion of Asian defendants (22 per cent) than both white and black defendants (12 per cent) had received a community sentence, at that time a rehabilitation (probation) order, a community punishment (community service) order or a combination order. The proportion receiving a custodial sentence among those convicted in the magistrates’ courts (17 per cent) was also higher than might be expected given that the sample included so many motoring offences and some other summary offences.80 But the ethnic minority defendants were not more likely than the white defendants to have received a custodial sentence.81 Both of these sample biases – overrepresentation of the convicted and imprisoned – when taken in conjunction with the fact that the interviews were carried in the court setting, often in cells, at a time when the emotional impact of being ‘sent down’ was just sinking in, almost certainly moved the research towards assessing perceptions in a ‘worstcase scenario’. In other words, we do not believe that this study can be accused of being designed in a way that would water down any expressions of unfairness and racial bias. 78

The proportion of those interviewed who had received a custodial sentence varied between the different Crown Court centres: Manchester 89 per cent (93/105); Birmingham 66 per cent (57/87); Inner London 83 per cent (100/121); Isleworth 75 per cent (21/28). 79 Comparing the proportion in custody that was white with the proportions that were black or Asian, the differences were not statistically significant:
2:2.794, 2df, p:0.247. 80 The proportionate use of custody was far higher in the London magistrates’ courts (26 per cent at Uxbridge, 34 per cent at Camberwell/Tower Bridge) than in Birmingham (11 per cent) and Manchester (10 per cent). 81 In fact, a higher proportion of the white defendants (23 per cent) we interviewed had been sent to prison compared with 18 per cent of black and 11 per cent of Asian defendants. Comparing the proportion in custody that was white with the proportions that were black or Asian, the differences were not quite statistically significant:
2:4.72, 2df, p:0.094. For the group of more serious motoring offences, the proportions sentenced to custody were: white 22 per cent, black 16 per cent, Asian 23 per cent:
2:1.039, 2df, p:0.595, not significant. Twenty per cent had received community rehabilitation or community punishment orders or a combination order (22 per cent of white, 19 per cent of black and 21 per cent of Asian defendants).

27

A Fair Hearing?

Obtaining views from other participants It would have been ideal, after identifying individuals who felt that their treatment had been unfair, to talk to all relevant people connected with the case to see what their perceptions had been. However, in the busy court setting, it was impossible to gain interviews from all the participants on the day the case concluded, and to have tried to track them down once counsel and others had dispersed was beyond our resources and would have undermined our capacity to interview a sufficiently large number of defendants from ethnic minorities. Instead, we decided to observe at least part of the proceedings in as many cases as possible, in particular the speech made in mitigation by the defence advocate and the sentencing remarks of the judge or magistrate. In addition, the fieldworkers were asked to record whether any of the court personnel, lawyers or jury members were from an ethnic minority or whether the courtroom entirely consisted of white people. At the Crown Court, observations were made in 256 cases (71 per cent) of the cases where the defendants were subsequently interviewed, and at the magistrates’ courts in 290 cases (70 per cent). Observations were also made of many cases in which, for various reasons, the defendant was not subsequently interviewed. Contacts were made, while working at the courts, with solicitors and advocates, both white and from ethnic minorities, in order to get their perceptions of how ethnic minority defendants and witnesses have been treated. Altogether, 112 lawyers (68 solicitors and legal representatives and 44 barristers) freely gave their views.82 Similarly, views were sought from 61 staff – 37 ushers, 17 Crown Court clerks and seven magistrates’ clerks (now known as legal advisers) – all of whom were well placed to observe the conduct of the court.83 We also attempted to gain an impression of how the situation was, so to speak, perceived by ‘the other side’: the magistrates and Crown Court judges who had both to preside, communicate and deliver judgment on white and ethnic minority defendants alike. In giving permission for us to approach judges, the Senior Presiding Judge for England and Wales ruled that, as a matter of principle, judges could not discuss or comment on individual cases in which they were involved, even if those cases formed part of our research sample. Our questions therefore centred on 82

Thirty in Manchester, 40 in Birmingham and 42 in London. Thirty of the 68 solicitors (44 per cent) were from an ethnic minority (12 black and 18 Asian); and so were 20 of the 44 barristers (45 per cent, 11 black and nine Asian). Of the 112 interviewed, 30 (27 per cent) were women. 83 In identifying minority ethnic defendants we were helped by court-based probation officers. Although we did not formally interview them, the freely expressed views of some of them gave us additional insight into the ‘culture’ of the courts.

28

Researching perceptions

their views of the ethnic awareness training they had received; whether they thought that particular issues were raised in cases where ethnic minority defendants appeared before them; and whether anything could be done by the judges or by the court service to improve the confidence of ethnic minorities in the system. The interviews, which had to be fitted into the judges’ busy daily schedules (often during breaks in proceedings), usually lasted about 20 to 30 minutes, and as far as possible a verbatim written note of the interview was recorded. We are grateful to the Resident Judges at the Crown Court centres we visited not only for facilitating our research but for agreeing to talk to us about issues concerning the treatment in court of defendants from minority ethnic backgrounds. In all, 26 judges (including four Recorders) were interviewed: three were Resident Judges and three were designated ‘Ethnic Minority Liaison Judges’ responsible for ensuring good relations with minority ethnic groups in the local community and for keeping all concerned in the courts abreast with relevant developments.84 The judges varied in age from 40 to 70, but half were between 53 and 62; all happened to be male and none were from an ethnic minority. Half had been in judicial office for six years or longer and half had been in their current post for at least six years.85 A total of 125 magistrates were interviewed: 119 lay magistrates and six District Judges. They were evenly spread across the three court areas studied. Twenty-five per cent were from an ethnic minority: 14 per cent were African-Caribbean or African and 11 per cent were Asian.86 Forty-nine (39 per cent) were female, 34 of whom were from an ethnic minority. A quarter were aged 50 or under; another quarter were between 51 and 57; and 16 per cent were 65 or over. Half had been sitting for more than nine years and one in five for more than 18 years. This reflected our decision, in selecting magistrates for interview, to target, although not exclusively, those who had chaired panels, as they were likely to have had more experience to share with us. Like the judges, magistrates were asked about the impact of any training in ethnic awareness they had received; what their perceptions were of any 84

We spoke also to two very recently appointed Recorders (one of whom was a woman), but because neither had yet had any ethnic awareness training and very little court experience we have not included them in this analysis of responses. 85 Three had been in post as a Circuit judge for less than a year, but all had had much longer judicial experience as a Recorder and Assistant Recorder. 86 In Manchester 46 magistrates were interviewed (11 per cent of the Bench); in Birmingham 40 (10 per cent of the Bench) and in South London 39 (50 per cent of the Bench). Sixty-one per cent were male, rather higher than the proportion of male magistrates (52 per cent) on the Benches in the three areas. Ethnic minority magistrates were somewhat over-represented, for they made up 25 per cent of those interviewed compared with 17 per cent of magistrates on the Benches studied.

29

A Fair Hearing?

problems posed in dealing fairly with ethnic minorities in the courts; and what, if anything, might be done to increase the confidence of ethnic minorities in the magistrates’ courts system. Altogether, therefore, about 1,250 people were interviewed for this study and many hours of observation were carried out in courts over a period of a year and a half.87 We believed that the prospect of gaining the cooperation and interest of defendants from ethnic minorities would be greatly enhanced if there were a visible presence of ethnic minority researchers in the team that would carry out the interviews, and that this would also increase the confidence of ethnic minority citizens in general in the validity of the findings. In this respect we were most fortunate to recruit a team led by Dr Florence Seemungal, a Trinidadian of IndoCaribbean ethnicity, which included two other researchers from minority ethnic groups: an African-Caribbean man and a Malay-Indian woman. The four other interviewers were white women, three from abroad – Belgium, Italy and the USA. Interviews with lawyers, and in one area also with magistrates, were carried out by law students of Asian background. The judges were interviewed by Roger Hood and Stephen Shute. In the magistrates’ courts 83 per cent and in the Crown Court 68 per cent of black and Asian defendants were interviewed by an ethnic minority interviewer, as well as 74 per cent of the white defendants in the magistrates’ courts and 61 per cent in the Crown Court. Overall, three-quarters (74 per cent) of all interviews with defendants were carried out by the ethnic minority interviewers. We recognised that there could be some ‘response biases’ according to whether or not the person carrying out the interview was white or from an ethnic minority. Comparisons between white and ethnic minority interviewers were therefore made in relation to the crucial questions – whether the respondents perceived their treatment to have been unfair and, if so, whether it was because of their ethnicity (see page 70 below).

Plan of analysis We begin the analysis of the findings of this research by describing in Chapter 3 the institutional settings of, and ‘ethnic balance’ in, the criminal courts in which the study was carried out, as well as the main characteristics and prior experiences of the courts of the defendants who 87

Inevitably, it was not possible to complete every interview in relation to every possible question asked, but the number of cases with missing information on any particular item was small, and mostly affected the few interviews carried out at Isleworth when we were piloting and testing the questionnaire, which was subsequently changed to include more precise questions. The totals given in the analyses will therefore not always be the same.

30

Researching perceptions

were interviewed. Chapter 4, the heart of the study, reports on the defendants’ and witnesses’ perceptions of their treatment at the hands of both the Crown Court and the magistrates’ courts. It attempts to assess the incidence of perceived unfairness and to identify how often and in what ways the treatment – both the procedures and the decision-making – accorded to those interviewed had been regarded as racially biased. In Chapters 5 and 6 we explore the extent to which defendants and witnesses generally had confidence that the criminal courts would treat them or others in a fair and unbiased way and the extent to which their views had changed as a result of their recent experience. Chapters 7 and 8 look at the question of how fairness towards ethnic minorities is perceived by those who administer or have a professional role in the criminal courts – court staff, lawyers, judges and magistrates. They also explore attitudes towards ‘ethnic awareness’ training. Chapter 9 discusses the experience of witnesses. Chapter 10 examines how far attitudes and behaviour towards ethnic minorities are perceived to have changed over time and identifies a ‘cultural shift’ towards the elimination of behaviours which might give rise to perceived racial bias in the criminal courts. The views of all parties on what still needs to be done to improve the confidence of ethnic minorities in the criminal courts are presented in Chapter 11. The chapter draws together the findings, discusses their implications, and suggests some ways in which the system might be improved so as to reduce yet further the number of cases in which minority ethnic defendants perceive themselves to have been unfairly treated simply because they are from an ethnic minority.

31

Chapter 3

Perceptions of fairness: a quantitative assessment

Unfairness of any kind: the defendant’s perspective As explained in Chapter 2, each defendant was asked specifically ‘to think back over the whole process in relation to this case, from the first time you came into court until now’, and then asked: Has anything happened that has made you feel that you have been treated in a way that was unfair, was biased, or which showed you lack of respect? If they said ‘nothing had happened’ they were again asked, as a check, that they had understood the question: Are you saying that you believe that you have been treated fairly and in an unbiased way, and shown due respect throughout this case as far the court is concerned? If they indicated that something had happened that they thought ‘was not right’, they were asked for details. But, as also explained in Chapter 2, this was not the end of it. If, later in the interview, someone who had not originally complained of anything was led by the questioning to recall or reassess as unfair some aspect of their treatment in court, their response was recoded from ‘not unfair’ to ‘unfair’. Despite this attempt to get defendants to focus exclusively on their experiences in court on this occasion ‘as far as the court is concerned’, a considerable minority failed to do so, probably because they saw the process as a seamless whole or could not distinguish the perceived 32

Perceptions of fairness: a quantitative assessment

unfairness of what had led them to come to court from what had actually occurred once they got there. About one in seven of the sample (15 per cent) talked solely about other agencies of the criminal justice system, most notably the police.88 But this certainly does not mean that these

respondents represent all those who considered that they had been treated unfairly by the police or by another agency. Although some complained about unfair treatment by the police or other agencies as well as by the courts, we have no way of assessing how many of those who answered the question literally by concentrating solely on the court felt unfairly treated by another agency but did not think it appropriate to mention it. However, an indication of the extent to which the police were perceived in general to treat minority ethnic people fairly could be gauged from another question. Asked whether they thought that the police always treated ethnic minorities ‘in the same way’ as a white person is treated, three-quarters of all respondents said ‘No’ (82 per cent of black, 79 per cent of Asian and as many as 62 per cent of white defendants). Asked why they believed this, three in ten (31 per cent) of the black and Asian interviewees who said ‘No’ based their opinion on their own treatment by the police in the case that had just concluded against them. They cited instances of treatment that they regarded as humiliating or biased, and occasionally violent. The others based their opinion on their previous experiences of the police, the experiences of people they knew, or simply on ‘common knowledge’. While this monograph is not about perceptions of treatment by the police or indeed any criminal justice agency other than the criminal courts, the matter is of importance because of its potential ‘knock-on’ effect to perceptions of the process as a whole, including the courts, as the Macpherson Report suggested. Leaving aside those whose complaints were not directed at their experience in court, it was found that 31 per cent of defendants in the Crown Court and 26 per cent in the magistrates’ courts perceived their treatment, at least in some respect, to have been unfair. The broad differences, according to ethnicity, are shown in Figure 3.1 (although none was statistically significant). In the Crown Court, the proportion complaining of unfair treatment in court was slightly higher among black (33 per cent) than white (29 per cent) and Asian 88

About two-thirds of the complaints which were solely about other agencies of the criminal justice system related to the police. The remainder of the non-court complaints (accounting for about 6 per cent of the total sample at both the Crown Court and the magistrates’ courts) were directed at the Crown Prosecution Service, the probation service, court security staff or the prison service.

33

A Fair Hearing?

Figure 3.1 Defendants’ perceptions of unfair treatment in court.

(26 per cent) defendants. A rather higher proportion of Asian (31 per cent) and black (26 per cent) than white defendants (19 per cent) in the magistrates’ courts perceived their treatment in court to have been in some respects unfair. For purposes of the analyses that follow, we have listed the main issue complained of. In other words, the percentages cited do not represent the total number of complaints of unfairness in court, but the total number of persons who complained of such unfairness. In most cases only one main complaint was made. Where interviewees complained of several things, for example about both jury and judge, or both sentence and jury, it was usually evident which matter had troubled them most. In a handful of cases, however, the nature of the complaint was more ambiguous. For example, a defendant who complained about the severity of the sentence he had received probably also considered the judge to have been biased but we only recorded the complaint as one of judicial unfairness if it pointed specifically to the conduct of the judge, the language used or attitude displayed. Thus we tried to distinguish between perceived procedural unfairness or lack of respect shown by the judge and 34

Perceptions of fairness: a quantitative assessment Table 3.1 Perceptions of unfair treatment in the court: Crown Court (percentages rounded) Crown Court: defendants interviewed White

Black

Asian

Total

What unfair?

N:110

%

N:171

%

N:75

%

N:356

Sentence unfair (of the 336 sentenced)

17 17/110

16 16

34 34/157

20 22

11 11/69

15 16

62 117 (57*) 62/336 19 ( )

Conduct/attitude of judge

6

6

12

7

2

3

20

Unhappy with jury (of the 48 jury trials)

1 1/7

1 14

7 7/30

4 23

3 3/11

4 27

11 11/48

Conduct of court staff

0

0

0

0

0

0

0

0( )

Conduct of barrister or solicitor

1

1

1

1

2

3

4

1 (4*)

Delays/procedure

7

6

3

2

2

3

12

3 (11*)

32

29

57

33

20

26

109

Total unfair treatment in court

%

7 (18*) 3 (3*) 23 ( )

31 ( )

*Percentage of total unfair treatment N:109.

perceived distributive injustice based on a comparative assessment of the type and length of sentence imposed (see page 17 above). Among all three groups of respondents (white, black and Asian) the main complaint – made in both the Crown Court (19 per cent) and the magistrates’ courts (13 per cent) – was that the sentence had been unfair, with little difference evident between the three groups. Very few complained about the conduct or attitude of the judge in the Crown Court or in the magistrates’ courts (seven and four per cent respectively). Thus, among those who did complain of unfairness, the concern in six out of ten cases in the Crown Court and half in the magistrates’ courts was the length or type of sentence imposed (see Tables 3.1 and 3.2).

The extent of perceived racial bias As explained in Chapter 2, a complaint of unfairness by a minority ethnic person could not be taken at face value as a complaint of racial bias. Just like the complaints made by the white defendants, the complaint may 35

A Fair Hearing? Table 3.2 Perceptions of unfair treatment in the court: magistrates’ courts (percentages rounded) Magistrates’ courts: defendants interviewed White

Black

Asian

Total

What unfair?

N:86

%

N:241

%

N:113

%

N:413

Sentence unfair (of the 391 sentenced)

11 11/82

13 13

26 26/203

12 13

15 15/106

13 14

52 13 (49*) 52/391 13 ( )

Conduct/attitude of magistrates/District Judge

0

0

13

6

5

4

18

4 (17*)

Conduct of court staff

0

0

5

2

3

3

8

2 (8*)

Conduct of barrister or solicitor

1

1

5

2

2

2

8

2 (8*)

Delays/procedure

4

5

7

3

9

8

20

5 (19*)

Bail

0

0

0

0

1

1

1

16

19

56

26

35

31

107

Total unfair treatment in court

%

0.2 (1*) 26 (

)

*Percentage of total unfair treatment N:107.

have been attributed to other vagaries of the system. Therefore, all minority ethnic defendants who said that they thought some aspect of their treatment in court had been unfair were specifically asked: ‘Do you think that what happened had anything to do with the fact that you are from an ethnic minority? If they said ‘Yes’, they were asked to explain why they thought this and were given further opportunities, later in the interview, to return to this issue. The proportions of black and Asian defendants who believed that the unfair treatment they had perceived was in some way due to their ethnicity can be seen in Figure 3.2. More detailed information about the nature of the complaint is provided in Tables 3.3 and 3.4. In the Crown Court: more than half (61 per cent) of the 33 per cent of black defendants who said that they had been treated unfairly – that is one in five (35/171) of all the black defendants interviewed – attributed it to the fact that they were from an ethnic minority.89 And slightly less 89

When these black defendants were separated into more specific categories, those who defined themselves as ‘Black Caribbean’ and ‘Black African’ were more likely (26 and 27 per cent respectively) to perceive racial bias in court than were those who classified themselves as ‘mixed race’ or ‘of any other black background’ (8 per cent).

36

Perceptions of fairness: a quantitative assessment

Figure 3.2 Defendants’ perceptions of unfair treatment in court ‘due to race’.

than half (45 per cent) of the 26 per cent of Asian defendants – that is one in eight (9/75) of the total – did so.90 Put the other way round, four out of five black defendants and seven out of eight Asian defendants did not definitely perceive racial bias in their treatment by the court, although a few others ‘wondered’ whether race might have played a part.91 90

Those who described themselves as ‘Indian’ were the most likely to complain of racial bias in court (14 per cent). Among ‘Pakistanis’ – who accounted for the largest group of interviewees – 8 per cent complained of racial bias. 91 A further six black defendants said that their ‘unfair treatment’ in court ‘might have been/could have been/I’m not sure/maybe’ affected by the fact that they were from an ethnic minority: five relating to sentence and one to the judge’s attitude/conduct. If these had been included to make a category of ‘suspicion of racial influence’, the proportion would have risen from 21 to 24 per cent (41/171). Of the 22 black defendants who had said that they had been unfairly treated in court but that this had nothing to do with their ethnicity, 11 believed that their sentence was too long, six made various adverse comments about the judge, three complained of the delays in processing their case, and the remainder complained about other aspects of their case. Seven Asian defendants thought that their ‘unfair treatment’ in court ‘might have been/could have been/I’m not sure/maybe’ affected by the fact that they were from an ethnic minority: three relating to sentence, one to the jury, one to delay and two to the quality of their legal representation. If these had been included to make a category of ‘suspicion of racial influence’, the proportion would have risen quite substantially from 12 to 21 per cent (16/75).

37

A Fair Hearing? Table 3.3 Perceptions of unfair treatment in the court due to racial bias: main issue raised in the Crown Court (percentages rounded) Crown Court: defendants interviewed Black What unfair?

Asian

Total

N:171

%

N:75

%

N:246

%

Total unfair treatment in court

57

33

20

26

77

31

Total unfair treatment in court due to race

35

21

9

12

44

18

Proportion of unfair treatment in court attributed to race

35/57

61

9/20

45

44/77

57

Sentence unfair due to race (of the 226 sentenced)

23 23/157

13 15

5 5/69

7 7

28 28/226

19 12

6

4

2

3

8

3

6 6/30

4 20

2 2/11

3 18

Conduct of court staff unfair due to race

0

0

0

0

0

0

Conduct of barrister or solicitor unfair due to race

0

0

0

0

0

0

Delays/procedure unfair due to race

0

0

0

0

0

0

Conduct/attitude of judge unfair due to race Unhappy with jury due to race (of the 41 jury trials)

8 8/41

3 20

In the magistrates’ courts: less than half (38 per cent) of the 26 per cent of black defendants – that is one in ten (21/214)92 of those interviewed – and 37 per cent of the 31 per cent of Asian defendants93 – one in eight (13/113) of the total – who said that they had been treated unfairly attributed the perceived unfairness to the fact that they were from an

92

As in the Crown Court, a lower proportion of defendants of ‘mixed race’ and ‘other black background’ (5 per cent) complained of racial bias in court, than did ‘Black Caribbeans’ (14 per cent). Seven per cent of ‘Black Africans’ complained of racial bias in court. 93 It was ‘Pakistanis’ who complained most frequently of racial bias – 14 per cent. Eight Asian defendants said that their ‘unfair treatment’ in court ‘might have been/could have been/I’m not sure/maybe’ affected by the fact that they were from an ethnic minority: four relating to sentence, one to the attitude/conduct of the magistrates, two to delays and one to the court staff. If these had been included to make a category of ‘suspicion of racial influence’, the proportion would have risen from 12 to 19 per cent (21/113).

38

Perceptions of fairness: a quantitative assessment Table 3.4 Perceptions of unfair treatment in the court due to racial bias: main issue raised in the magistrates’ courts (percentages rounded) Magistrates’ courts: defendants interviewed Black What unfair?

N:214

Asian %

Total

N:113

%

N:327

%

Total unfair treatment in court

56

26

35

31

91

28

Total unfair treatment in court due to race

21

10

13

12

34

10

Proportion of unfair treatment in court attributed to race

21/56

38

13/35

37

34/91

37

Sentence unfair due to race (of the 309 sentenced)

13 13/203

6 6

10 10/106

9 9

23 23/309

7 7

Conduct/attitude of magistrates/ District Judge unfair due to race

4

2

1

1

5

1

Conduct of court staff unfair due to race

2

1

1

1

3

1

Conduct of barrister or solicitor unfair due to race

1

0.5

0

0

1

0.3

Delays/procedure unfair due to race

1

0.5

1

1

2

0.5

Bail refused unfairly due to race

0

0

0

0

0

0

ethnic minority.94 Again, this shows that a large majority, nine out of ten black and seven out of eight Asian defendants, did not definitely perceive racial bias in their treatment by the court.

The views of black defendants Table 3.3 shows that, in the Crown Court, the majority (23 of the 35; 65 per cent) of the black defendants who complained of racial bias – 15 per cent of all those sentenced – said that the sentence they had received was more severe than that which a white person in the same circumstances would have received. This usually, as shown below (see pages 45–51 94

A further 12 black defendants said that their ‘unfair treatment’ in court ‘might have been/could have been/I’m not sure/maybe’ affected by the fact that they were from an ethnic minority: six wondered whether this explained their ‘unfair sentence’; three wondered about the attitude of the magistrate(s); and three wondered about the performance of their solicitor. If these had been included to make a category of ‘suspicion of racial influence’, the proportion would have risen from 10 to 15 per cent (33/214).

39

A Fair Hearing?

and 130), implied a perceived bias ‘institutionalised’ in the system. Only six of the 35 (17 per cent), accounting for just four per cent of the 171 sentenced, specifically referred to the conduct of the judge, who was felt to have been hostile to them or ‘disrespectful’ or biased, either because of his facial expression or what he had said. For example, a ‘black Caribbean’ woman complained that the judge had called her ‘a racist’ and ‘evil and aggressive’.95 The only other racist complaints were directed at the jury. Six – one in five of the 30 black defendants tried by jury – believed that it had been unsympathetic to, or biased against them.96 Although none gave it as their main complaint, five black defendants, in response to a separate question, said that they did not like the treatment they had received at the hands of court staff. One even said ‘they treat you like an animal’, another that ‘they should be able to place themselves in the defendant’s shoes and understand where he is coming from’. But none of these complainants felt that the treatment they disliked had been motivated by racial bias. Similarly, in the magistrates’ courts (as Table 3.4 reveals) the major complaint of the minority of black defendants who had perceived their treatment as racially biased (13 of the 21; 62 per cent) – six per cent of all those sentenced – was the comparatively ‘excessive’ nature of their sentence. Only four (two per cent of those interviewed) perceived the magistrates’ attitude to have been motivated by racial considerations: for example, ‘you can tell by the way that they look at you and treat you’. There was only one black defendant who complained of discriminatory treatment because he had had to wait a long time for his case to be heard: ‘everyone who went before was white’. Two others (one per cent of those interviewed) complained about the attitude of a member of the court staff,97 which they attributed to racial bias: ‘the court clerk stitched me up’; ‘the payment’s clerk’s mannerisms and tone of voice were discourteous’.

95

Two other defendants whose main complaint had been about racial bias by the jury also mentioned judicial bias. 96 Four others whose main complaint was racial bias in their sentence also complained about jury bias. 97 In a separate question, asking how satisfied they were with the behaviour of court staff in the magistrates’ courts, 29 (15 per cent) of black, 21 (20 per cent) of Asian and 7 (10 per cent) of white defendants expressed dissatisfaction. In their view, the staff had been ‘rude to them’; ‘ignored them’; ‘reception staff rude, tone and attitude argumentative’; ‘overheard them being rude about people’; ‘clerks and magistrates talked down to me’; ‘the court clerk laughed when I said I loved my wife’; ‘usher very rude’; ‘staff not very helpful, not very approachable’; ‘staff gave angry looks’.

40

Perceptions of fairness: a quantitative assessment

The views of Asian defendants Again, in the Crown Court, the most prevalent complaint made by the small number of Asian defendants who had perceived racial bias (five of the nine) – seven per cent of all those sentenced – was that their sentence had been longer than they would have received had they been white. Only two (less than three per cent) of the 75 interviewed specifically criticised the judge. One said the judge had been biased, basing his opinion on his perception of the judge’s facial expressions. The other felt the judge had been excessively ‘prosecution minded’ because he, the defendant, was an Asian. Two of the 11 tried by jury said that it had been biased against them, one mentioning the impact on how Asians were perceived following the terrorist attacks of ‘9/11/2001’. In the magistrates’ courts, complaints about sentence also predominated. Ten of the 13 who had perceived racial bias – nine per cent of the total sentenced – considered that the penalty had been harsher than if they had been white. Of the remaining three, one perceived the conduct of the magistrates to have been racially biased; one complained about ‘racist’ behaviour by a member of the court staff, in this case the clerk who was perceived ‘by his facial expression and the way he talked’ to be impolite to the defendant but not to a white police officer; and one complained of delay: ‘waiting around wasting time made me angry – keeping me till last, it’s my colour’.

Conclusion When complaints unrelated to the business of the court were excluded, the proportion of black and Asian defendants who believed their treatment in the case that had just concluded to have been unfair because they had been treated differently on grounds of their race or ethnicity was considerably lower than had been previously estimated by informed observers (see pages 10–11 above). This was all the more surprising given that nearly all defendants were interviewed immediately after the case against them had been concluded and that a high proportion of them, particularly in the Crown Court, were waiting to be transferred to prison. We stress, however, that this does not mean that one should minimise the fact that one in five of the black defendants who had appeared in the Crown Court had perceived their treatment to have been influenced by racial bias.

41

Chapter 4

Perceiving racial bias

Inequitable sentencing As we have seen, the complaints about racial bias by minority ethnic defendants were mostly (around two-thirds) about ‘inequitable sentencing’, a sentence regarded as more severe than would have been handed down to a similarly placed white defendant.98 This implies that the

defendants thought that the judges’ decisions in these cases had been racially biased against them, a bias that some thought was endemic in the system. It should be noted, however, that minority ethnic defendants were not alone in thinking that the courts often treated people inequitably, arbitrarily and with undue severity when it came to sentencing. The majority of white defendants who complained of unfair treatment (see Tables 3.1 and 3.2 above) also mainly put it down to an unsympathetic judiciary or the vagaries of sentencing disparity produced by an arbitrary system. ‘I know loads of people who have done the same thing. I know a lad who got caught up with drink driving for the third time and just got a week for getting pissed out of his fucking head and driving. I get six months for poxy driving while banned’. Asked what had made the difference in his case, he replied: ‘Fuck knows . . . Just the luck of the draw. It’s like if a toff came here today, he would have got off with 98

In the Crown Court 28 of the 44 (64 per cent) and in the magistrates’ courts 23 of the 34 (68 per cent) ethnic minority defendants who perceived unfairness due to race complained about the sentence: see Tables 3.3 and 3.4 above.

42

Perceiving racial bias

it’. (He was a 43-year-old man, with previous convictions in the magistrates’ courts for driving while disqualified and at least one prior custodial sentence. His appeal against conviction and sentence was heard in the Crown Court and dismissed.) ‘The judge’s summing up misled the jury . . . The way the judge put me across – it was very biased towards me, the defendant. The judge made his decision before the pre-sentence report [which recommended a community rehabilitation order for possession of an offensive weapon, a sharp and heavy knuckleduster] was prepared . . . I should have gotten a lesser sentence’. (He was a 23-year-old man, with two previous convictions for possessing offensive weapons, who had previously served a custodial sentence. He was sentenced this time to 18 months’ imprisonment.) ‘The judge. He didn’t believe in listening to what my barrister was saying. It just went in one ear but out the other . . . It’s the thing about drink driving. They don’t really like it. I’m not saying it’s right but 15 months is a bit strong . . . The judge has not took my guilty plea into consideration’. Asked whether he thought something had influenced his sentence which shouldn’t have influenced it, he replied: ‘I don’t know, it’s something I’ve wondered about. I’ve never heard of anyone getting 15 months for that before. It’s not like I’ve got a big criminal record’. (He was a 28-year-old unemployed man, who had previously served two-and-a-half years’ imprisonment for supplying cannabis. He had pleaded guilty to aggravated vehicle taking, for which he received 15 months’ imprisonment, and driving with excess alcohol (twice the legal limit), no insurance and driving while disqualified, for which he received three months concurrent. The pre-sentence report had said: ‘there is a risk but it can be managed in the community’. The judge said ‘It is fortuitous that you didn’t come into collision with anyone. I must give you a custodial sentence to show that this behaviour will not be tolerated’.) Another way to approach the issue of why some defendants, both minority ethnic and white, felt that the sentence they had received was unfair was to ask (if they remembered, and not all did) whether they thought that the remarks made by the judge or magistrate when passing sentence were ‘fair comment’. We obtained views from 88 per cent of those who had been sentenced in the Crown Court and 74 per cent of those who had been sentenced in the magistrates’ courts. Their responses revealed that two-thirds of these defendants in the Crown Court said ‘Yes’, the comments were fair, as did 43

A Fair Hearing?

three-quarters of the defendants in the magistrates’ courts. In other words, a third of defendants in the Crown Court, and a quarter in the magistrates’ courts, regarded what had been said by the judge when they were being sentenced as ‘unfair’. However, the proportion who did not think that the sentencing comments made by the judge in the Crown Court were ‘fair’ was higher among black defendants (40 per cent) than white and Asian defendants (30 per cent), even though the proportion of black and white defendants who had received a custodial sentence was very similar.99 Although this difference was not statistically significant,100 it was in line with other findings from the Crown Court. In the magistrates’ courts, the ethnic differences were much more marked: a third of Asian defendants, compared with 24 per cent of black and 16 per cent of white defendants, did not think that the sentencing remarks made in their case had been ‘fair comment’ (despite the fact that a lower proportion of Asian defendants than white or black defendants had been sentenced to custody).101 These differences were very close to statistical significance at the 0.05 level.102 In order to explore further why ethnic minority defendants thought that their sentence had been affected by racial bias, all those found guilty were asked: ‘Taking all the circumstances into account, do you think the sentence you got was any different from what any other person would have got who had done the same thing as you have done and had a similar record?’ The responses (see T able 4.1) were analysed according to whether: (a) it was believed that the sentence had been more severe and, if so, whether racial bias had played a part; or (b) whether the sentence was considered to be more lenient. One must bear in mind, of course, that the question asked drew defendants’ attention specifically to the fairness of the sentence they had received. Yet, in the Crown Court, this did not lead a significantly larger proportion of either black or Asian defendants to say that their sentence had been affected by racial bias (compare Table 3.3 99

Eighty per cent of convicted white defendants received a custodial sentence compared with 82 per cent of convicted black defendants and 73 per cent of convicted Asian defendants (see page 27 above). 100 2
:3.27, 2df, p:0.195. 101 See page 27, n. 81 above. 102 2
:5.56, 2df, p:0.062. Of those sentenced to custody in the magistrates’ courts, the same proportions of black, Asian and white defendants (just over 60 per cent) said that the sentencing remarks were fair comment, but a considerably lower proportion of Asian defendants among those not sentenced to custody said that the remarks had been fair (67 per cent compared with 79 per cent of black and 89 per cent of white defendants).

44

Perceiving racial bias

with Table 4.1).103 However, in the magistrates’ courts, the proportion that said that their sentence was both excessive and affected by racial considerations was considerably higher (14 per cent) than that shown in Table 3.4 (seven per cent).104 In the Crown Court, 16 per cent of white, 12 per cent of black and 13 per cent of Asian defendants said that their sentence had been ‘less than expected’. A somewhat higher proportion of the black defendants (13 per cent) said this in the magistrates’ courts than either white (nine per cent) or Asian defendants (eight per cent). It can also be seen in Table 4.1 that not only black and Asian defendants said that their sentence was unfair, or that it was greater than they had expected. A substantial proportion of the white defendants also said that they regarded their sentence as unfair, and one in five of them (19 per cent) thought that it had been greater than another ‘similarly placed’ offender would have received. They, of course, did not attribute this to racial bias, but just felt that they had been treated too severely in the circumstances. However, the important finding for this study is that among the black and Asian defendants who thought their sentence was greater than another ‘similarly placed’ offender would have received, more than half (26/49; 53 per cent of black defendants, and 6/12; 50 per cent of Asian defendants) said that they thought that this had been because of their ethnicity (see Table 4.1). These perceptions of racial bias were not usually attributed to anything that had been said or done in court. A reasonable hypothesis is that they were inferred from the fact that there is a substantial overrepresentation of black people in the courts and the prisons and the belief that this must, at least to some extent, be due to ‘institutionalised racism’. Furthermore, some felt that their past records when they had been ‘young and wild’ were being given too much weight in sentencing policy. Not enough attention had been paid to them ‘as they were now’, due to a failure properly to take into account the social and cultural

103

Table 3.3 shows that, in the Crown Court, 15 per cent of sentenced black defendants and 7 per cent of sentenced Asian defendants said that their sentence had been ‘unfair due to race’. This compares with 17 per cent and 9 per cent of black and Asian defendants who responded that their sentence was ‘greater than expected’ and who attributed this to their ethnicity (see Table 4.1). 104 Table 3.4 shows that, in the magistrates’ courts, 6 per cent of sentenced black defendants and 9 per cent of sentenced Asian defendants said that their sentence had been ‘unfair due to race’. This compares with 14 per cent and 13 per cent of black and Asian defendants who responded that their sentence was ‘greater than expected’ and who attributed this to their ethnicity (see Table 4.1).

45

A Fair Hearing? Table 4.1 Perceived disparity in sentence (percentages rounded) Crown Court: total sentenced White Type of disparity

Black

Asian

Total

N:110

%

N:157

%

N:69

%

N:336

%

Sentence greater than expected (sentence greater than expected due to race)

21 —

19 —

49 26

31 17

12 6

17 9

82 32

24 14*

Sentence less than expected

18

16

19

12

9

13

46

14

Total: sentence different than expected

39

35

68

43

21

30

128

38

Magistrates’ courts: total sentenced White Type of disparity Sentence greater than expected (sentence greater than expected due to race) Sentence less than expected Total: sentence different than expected

Black

Asian

Total

N:82

%

N:203

%

N:106

%

N:391

%

8 —

10 —

41 29

20 14

23 14

22 13

72 43

18 14*

7

9

27

13

8

8

42

11

15

18

68

34

31

29

114

29

*Of the total sentenced black and Asian defendants.

circumstances in which they had grown up. The flavour of this comes through in the following passages from the interviews and observations carried out for this study.

Case 1 Crown Court This defendant, aged 36, described himself as Caribbean. He had been born in the UK and lived here all his life. He pleaded guilty to theft and had been sentenced by a Circuit Judge to nine months’ imprisonment. He had served at least one previous custodial sentence. His pre-sentence report had recommended a combination order. He felt he had been unfairly treated: ‘The judge didn’t give me a chance . . . I stopped drugs . . . The judge didn’t look at my past to my present, he looked at the offence. He said it was my way of life, but I’ve changed from a drug user, I’ve found a job. I’ve stopped taking 46

Perceiving racial bias

drugs. He believes I’m a menace to society. People do burglaries and robberies and get sentences like mine. I don’t understand judges . . . I can’t accept the sentence. I’ve changed. I wanted another chance. I feel the system is prejudiced, it’s racist . . . Judges turn people into criminals and drug users. If I was white I would have had a chance, non-custody . . . He didn’t look into my life, what I wrote. It didn’t matter’. The judge said when passing sentence: ‘The offence has to be set against a pattern of offending of theft that is a way of life for you. The public needs to be protected from persistent thieves, which is what you are . . . The only sentence is one of imprisonment, credit is given for your guilty plea at the earliest opportunity: nine months’.

Case 2 Crown Court A 19-year-old male who had lived in Britain all his life, and described himself as Caribbean, was appearing for the first time at a Crown Court. He had not previously been in prison but on this occasion he was sentenced to five years’ detention for what the experienced Circuit Judge called ‘a vicious crime’. He had been told by his solicitor that the maximum sentence he could expect to receive was four years because of his age. He considered the longer sentence he had received to have been unfair: ‘If I was a different colour a lighter sentence would have been given . . . The judge wanted to take another black face off the street. My background isn’t bad. I don’t have any background of violent offending . . . I was treated as a black offender. I’ve been in prison (on remand) for three months. I’ve seen white people with shorter custodial sentences for more serious crimes’. He didn’t feel that he had been able ‘to have my say’ to the judge, as he had been able to on a previous appearance in the magistrates’ court, when he was not sentenced to custody.

Case 3 Crown Court This defendant, a 19-year-old, born and brought up in England, described himself as African. Self-employed, he was appearing for the first time in court and was sentenced to seven years’ imprisonment. He criticised the whole court staff: ‘They seemed like they were not bothered. They should be able to put themselves in the position of the defendant and understand where he is coming from’. He said the judge ‘doesn’t know anything about me. He relied on only one account’. He said that he believed a white person would have received a lesser sentence. The courts, he said, were ‘racist’, it was a ‘racist country’ and it was common knowledge that ‘white man receives respect in court, black man will be spoken to as if he is simple’. 47

A Fair Hearing?

Case 4 Crown Court A 31-year-old male, who had been born in Jamaica, was a Jamaican citizen, and had lived in England for five-and-a-half years. He described himself as Caribbean. He had previously been to prison and had four drug convictions within the last three years. On this occasion, for the possession with intent to supply of 308 grammes of cocaine and three grammes of heroin, he had been sentenced by an experienced Circuit Judge to three years’ imprisonment concurrent on each count. His complaint was against the sentence: ‘I don’t feel as if I have received justice. I would have preferred to go into rehab, but I’ve been sent to prison for three years . . . I feel that a white person would have received a DTTO [Drug Treatment and Testing Order]. I want to be given a chance. If it was the same situation and the guy was white the outcome would have been different’. He thought that his counsel had let him down by not explaining to the judge that he had a drug problem, that the drugs were for his own consumption, and that he was not going to sell them: ‘He should have talked to the judge and been more convincing’. He said that when sentence was passed he had not understood what the judge had said to him, but was convinced that ‘if it was someone white he would have received a DTTO’. This, he said, was because the courts think ‘Afro-Caribbeans are killers and drug-pushers’. In mitigation, his counsel asked the court ‘to take an exceptional view and give him a chance to break the cycle’. Passing sentence the Circuit Judge said: ‘I take your pleas of guilty into consideration and do pass a lesser sentence. The offences are so serious that imprisonment is unavoidable. The sentence of 48 months you [previously] received should have taught you a lesson and you should have known better’.

Case 5 Crown Court A 22-year-old Pakistani male, who had lived in Britain for 17 years, was appearing for the first time in court. He pleaded guilty to two counts of robbery and one of attempted robbery, committed with a knife, for which he was sentenced to a total of six years’ imprisonment. ‘I got a heavy sentence. For my first offence it was harsh – I was expecting three to four years . . . I know people going up for manslaughter. They got three-and-a-half years. I get six years. No force was used, where’s the justice in that. I wish there were Asian judges. An Asian judge would have considered my point of view. If I was white maybe I would not get six years. I know a Pakistani guy in prison for a driving offence. He got 15 months when the normal sentence would be four to six months. In my case the judge had a bad attitude for robbery. My barrister said it was too harsh, he sits as a judge as well’. 48

Perceiving racial bias

Case 6 Magistrates’ Court A 37-year-old Caribbean. He was born in Britain and worked as a forklift truck driver. He appeared before a white District Judge for driving while disqualified. The court clerk, the usher, the defendant’s legal representative and the prosecution’s legal representative were white. He was sentenced to four months’ imprisonment and given a further driving ban. He had been to the Crown Court and magistrates’ court before and had served a term of imprisonment. ‘They think that if you have been in trouble before you are still the same person. I’ve been out of trouble for six years. I am a family man. I’ve changed. They don’t care. They don’t care. They don’t care. They think I’m the same person. . . . They could have given me community service and stuff. It was definitely harsh. I’m a changed man and everything like that. The Bench in this court is crap . . . If I borrowed the car and knocked some people over . . . I could of got community service for that . . . All of the options . . . He couldn’t care about the person . . . He looked at my face – black and balding – right get another one off the street then . . . You can see it in him. I never got a chance. I never get a chance . . . In this place I never get a chance . . . He was not a very understanding person . . . He’s got no consideration for nobody. He could look and see I’m a family man. My wife’s going to be out there now. She’s going to be suffering because she’s got no money. So, he didn’t care about all of that. He just put me in jail with the rest of the criminals . . . He didn’t consider nothing. He didn’t look and see if I’ve been out of trouble . . . If I’ve changed or something like that . . . He’s not a very understanding judge. Christmas is coming. My kids are going to be out there. What am I going to do? What’s my wife going to do? He doesn’t care . . . Did he look like an understanding person? . . . All that was in his mind was prison. He wouldn’t consider nothing else . . . Those people are endangering lives and stuff: stealing, wreckage, damage. I done none of that . . . They look at me and think ‘‘Oh, a black man. He’s out causing fucking trouble’.’ That’s the opposite to me’. He was highly critical of his pre-sentence report: ‘He didn’t say I went to college, that I was a family man . . . He didn’t write all of that . . . I was a kid then, I was a kid, I didn’t have a care. My attitude has completely changed . . . He didn’t write any of that. They want to sack him. He ruins people’s life that man. I’m not on the street or all that crap . . . The probation officer should be investigated . . . His report could have swinged it a bit, because he’s the one that’s getting close to me instead of the judge. The judge just looked at me as an object. But he [the probation officer] is there to see me as a person. To talk to me and see what’s going down in my background. All of that . . . [The probation officer] had written down crap. ‘‘He’s going to be a high risk’.’ All of that kind of crap . . . [The report] was bullshit . . . He should be investigated . . . He looked at my past record. They believe you are still the same person. Six, eight years ago I used to be scheming and running, false girls, all that sort of 49

A Fair Hearing?

stuff . . . I’ve completely changed. I’m an intelligent person. I talk to people sensibly. I ain’t got an attitude about nothing. It’s got to be nothing else apart from I’m a blacky’.

Case 7 Magistrates’ Court An 18-year-old who described himself as Black and had been born in Britain. He was unemployed. He had appeared before in the magistrates’ court for driving offences but had never served a sentence of imprisonment. He pleaded guilty to driving without insurance, without an MOT and not in accordance with the conditions of his licence. He was fined £235, with £200 costs, and given a 12-month ban by a Bench chaired by a black magistrate sitting with two white magistrates. The court clerk, the usher and the prosecutor were white. The defendant was not represented but said with hindsight he would have preferred to have been. ‘I explained to them, in’it, that I ain’t going to have no income after next week or the week after and he said he was going to take it into consideration but they don’t normally do that. As long as it’s not them . . . I just didn’t like the way that they fined me for saying that I wasted the police officer’s time. It ain’t right, is it? They’re always wasting our time. It’s alright for them to do it but when we do it they don’t like it. They take money off us knowing that we ain’t got that money to pay out . . . I’m just tired of it, the way they treat you. It’s like because you’re a different colour to them they think it’s alright to treat you different. Cos I know that if I was white they probably wouldn’t have give me that fine as much as they give me today . . . You can’t explain can you. It’s what’s going on. That’s how the police force and the courts are running. They think it’s black people that’s causing all the trouble and doing all the muggings. They don’t like it . . . You can just tell by most of the judges’ faces, when you walk in, the way they look at you, they look down at you, like you are lower than them’.

Case 8 Magistrates’ Court A 25-year-old Caribbean. His parents were Jamaican but had been born in Britain. He worked as a football coach but was also on income support. He was appearing in court for the first time for driving offences (no insurance, no licence and no MOT). He was fined £135 for these offences and ordered to pay £35 costs and his licence was endorsed with six penalty points. There were two white magistrates on the Bench, and the court clerk and the usher were also white. He did not have a legal representative. ‘I’ve had to come to court twice, you know what I mean, to pay more fines and I can’t really afford it . . . It’s a lot of money but there’s not a lot I can do about it. It’s the law. You know what I mean . . . I am not being disrespectful 50

Perceiving racial bias

but to me if I was a different person, a different colour or race, I wouldn’t get £165 fine. I would probably get about a £60 fine and a slap on the wrist . . . This is history now . . . A black person they always get into trouble more than anyone else. They always say you should never judge a person by their appearance but that’s the law, the courts, and once you are in their hands you can’t do jack about it . . . Believe you me, madam, I’ve seen it before, I knew somebody who was kind of in the same predicament as me and, er, they had a £60 fine and two or three points off their licence, you know what I mean. . . . I’ve seen it . . . This [white] geezer, he had two records in the past. I’ve never had a record in my life and I get so much’.

Case 9 Magistrates’ Court A 28-year-old Pakistani, appearing in court for the first time on a charge of common assault to which he pleaded guilty, received a community rehabilitation order for one year and a fine of £150 with £50 costs. Asked, ‘Do you think that what happened to you had anything to do with the fact that you are from an ethnic minority?’ he replied: ‘Yes, of course it did! Of course it did! Because you could look in their eyes and you can tell. I mean . . . you tell me now, if I was white. I know loads of kids yeah, do get done for shoplifting and thieving and whatever, yeah, loads of times, not once, and yet they just get a little fine and go home. Some of them don’t even get a fine . . . I’ve never been in trouble. If I’ve been in trouble before and I was one of them troublemakers, fair enough, I would have took this luck of mine and gone home. But I’ve never been in trouble, right and because of that, right, and the way that these, that judge in the middle, the black man, he is just a coconut, you know what I mean, he is just black on the outside, white on the inside, because you know they think . . . I know their judgment, that they will answer to God, God is my witness. Because the way that I’ve been dealt with, I’ve paid out £200. You understand, I’ve not been dealt with fairly, they wouldn’t listen to me . . . I was not given one single chance to speak. Well, I could have done it through the Newton Hearing, but that would have dragged the case on longer. It just a bogus, you know an assault charge, just common assault, and this is what I get out of it. The September 11th events had an effect on sentencing’.

The conduct of the judiciary Compared with complaints about the severity of the sentence, there were, as shown in Chapter 3, very few direct complaints of racial bias made about the perceived conduct or attitude of judges or magistrates – only eight altogether in the Crown Court (three per cent) and five (one per cent) in the magistrates’ courts. Even fewer (none in the Crown Court and only three in the magistrates’ courts) were directed at staff 51

A Fair Hearing?

working for the Court Service. What was interpreted as racism is vividly illustrated in the following extracts from interviews.

Case 10 Crown Court The defendant, who was 28 years old, described himself as Caribbean. He had been born in England and had lived in Britain all his life. This, he said, was his first appearance at a Crown Court. He had been acquitted by the jury but was sentenced to one day’s imprisonment for being late at court. ‘I just felt the way the judge came across. When he is speaking he is not even making eye contact. Whereas the jury and the witnesses, he makes the contact that with me he didn’t have. He made me feel like I am sort of a criminal even though I am not a criminal. It seems to me that as soon as you are in the dock, the judge would automatically feel that you are a criminal . . . The judge kept stopping my counsel and when I said something he was quick to stop me. I can’t remember exactly what he said but it was his behaviour that was wrong . . . See, the judge see me behind the dock and he don’t really know what type of person I am, what type of family I’m coming from. So they don’t really know me. When they see you in the dock they just automatically assuming that I am a lying person’. When asked whether he thought his treatment had something to do with the fact that he was black, he replied: ‘Definitely . . . because it’s just a normal fact that there is discrimination. When I was at school it was the same thing. I told the teacher to ‘‘shut up’’. A couple of days down the line a white person done the same thing. I got suspended but he just got detention. And this is just how things are . . . That is what I am used to’. He was not complaining about the outcome: ‘I was expecting to get six months . . . so it was a good result for me,’ but he felt that the judge had been biased: ‘basically he was more on the side of the prosecution rather than the defence, he was biased’. He felt that the one day’s detention was unfair because on another day his case had been listed for 11 am and not called until 3 pm. In the circumstances, he felt that he had been punished by a judge who had not agreed with the Not Guilty verdict.

Cases 11 and 12 Crown Court A brother and sister appeared as co-defendants on charges of causing grievous bodily harm. He pleaded guilty to a section 20 offence and was sentenced to two years’ detention. She pleaded guilty, having changed her plea at the trial, to possession of a bladed article (instead of possession of an offensive weapon) and was sentenced to nine months’ imprisonment. The incident had arisen out of a dispute with three white men, one of whom had been cut seriously across his hand so that he had no movement and was facing plastic surgery. The accused maintained that the offence had been self-defence, arising from a racially aggravated 52

Perceiving racial bias

assault against him and an indecent assault on his sister. She had passed him the knife. He was aged 16, with a previous custodial sentence for a violent offence. She was 21 and had appeared in the Crown Court before. Like her brother, she had previously been sentenced to custody. He was appearing in the Crown Court because his co-defendant sister was an adult. They both described themselves as Caribbean and had both been born in England and lived in the UK all their lives. Both said that they had not been dealt with fairly and with respect and that this had had something to do with the fact that they were from an ethnic minority. He said: ‘The judge’s attitude towards us was horrible . . . for example, his facial look and expressions when he spoke to us. He said he took the victim’s account to be true and mine and my sister’s to be untrue . . . Because we are black, the police and the judge did all in their power to help this case. They didn’t ask the reasons into the background of the case. They would have done it for a white defendant. They didn’t question the victim for a sexual assault on my sister . . . A white person with the same background will be given another chance, not custody [but] I am a black guy who dresses smart with gold teeth . . . If a white guy didn’t have gold teeth in his mouth he may have gotten more respect . . . They would keep white guys out of jail . . . The judge didn’t want to know the circumstances – that it was a brother defending his sister . . . The judge picked on us from day one’. She said: ‘The judge’s statements were not fair. We had witnesses to support our story and video-tape evidence of the offences. The victim’s story was untrue. My brother was CS gassed. It started as a racially aggravated offence. We were called ‘‘nigger’’ and I said ‘‘fuck off, you white piece of shit’’. The victim was Colombian. I was sexually assaulted. The police saw us punching and kicking but the victim should have been charged. He had knives . . . The judge only wanted to know what happened to the victims not me . . . It was a racist crime. He wanted to shut us up . . . The judge was racist. He didn’t consider carefully the video evidence. People in Holloway said we were stitched by the judge but the video showed it was self-defence . . . Judge X is racist. The victim is Colombian, so the judge is sticking up for his white people’. The judge, after hearing speeches in mitigation, said to the 16-year-old male: ‘This was a vicious and serious attack which caused serious injury to the victim’s arm . . . You find yourself in a position of being no stranger to violent behaviour. It is intolerable in a civilized society that this should happen. This offence is so serious that only a custodial sentence, 24 months’ detention and training order, is appropriate’.

Case 13 Crown Court A male Indian citizen, age 37, who had been in England only two years, was appearing for the first time in a Crown Court. An international banker, he had been charged with money laundering and found guilty 53

A Fair Hearing?

after a trial, with an ‘all-white’ jury, and sentenced to five years’ imprisonment. ‘The judge was biased towards the prosecution. Even the summation was biased in the interests of the Crown . . . My trial was a farce . . . For a white co-defendant in my case it would have been different. The judge would have been more understanding . . . The judge’s impression of me was a biased one’.

Case 14 Magistrates’ Court A 22-year-old man of mixed race (white/Black Caribbean) who had been born in Britain and had lived here all his life. He worked in a bakery and had appeared before in both the Crown Court and the magistrates’ court but had never been sentenced to imprisonment. He pleaded guilty to a drugs offence and received a 12-month community rehabilitation order and was ordered to pay £50 in costs. He had been represented by a lawyer from an ethnic minority. He said that he felt he had been treated unfairly because of his ethnicity: ‘I just didn’t like their look. You can tell you know, they are looking at you and they are thinking, [makes a noise of disgust] you know what I mean, ‘‘Fuck you, I’ll send you to jail!’’ You know what I mean, that is what they are thinking about in the court . . . Trying to intimidate me, yeah. . . . My solicitor said that I have been trying to get off the drugs now. I haven’t been using drugs that long, and he just turned round and he said that he was thinking of sending me to jail. He get me worried and thing. I thought I was going to jail’. Asked if it had anything to do with the fact that he was from an ethnic minority background, he said: ‘I think so, yeah . . . I think that if I was white I would have been bailed, I just think so, you know what I mean. My barrister is doing the kind of stuff that you are doing, because we went to one of them court cases and we seen that we was treated unfair and he is trying to get rights for black people. He is actually doing the same sort of thing that you are doing, you know what I mean? Over the internet, and all that. It is of great interest, because the courts gotta treat people of ethnic minorities fair’.

Case 15 Magistrates’ Court An 18-year-old Pakistani, born in England, pleaded guilty to having no excise licence. This was his first time in court and he was fined. Asked: ‘Has anything happened today that has made you feel that you have been treated in anyway unfairly or shown any disrespect?’ he replied: ‘Yeah. Unfairly, man. They don’t listen to you at all. They stupid. They don’t listen to your side. Yeah, the way they were looking at me man, and they were laughing their heads off. The way they looking at you, they judging, you this or you that. They were making faces at each other. All appeared racist. My Asian background went against me’. * * * 54

Perceiving racial bias

As can be seen from these examples, the defendants concerned had picked up various non-verbal cues that had convinced them that their treatment by judges or magistrates had been affected by racial bias. But it should be emphasised that none complained of any inappropriate words or comments that could have been taken to indicate prejudice or stereotyping of ethnic minorities. Furthermore, the interviewers, who observed many cases during 18 months of fieldwork, often unknown to the judge, also did not hear any remarks that they interpreted as racist. Although this is not proof that inappropriate remarks are never made in court to members of ethnic minorities (examples are still occasionally reported in the press), it may be taken at least as an indication that this probably happens very infrequently.

The performance of lawyers Although not employees of the court system, it is obvious that perceptions of unfairness in the court system could arise if legal representatives are perceived by ethnic minorities not to be making as great an effort on their behalf as they would for a white client. We therefore asked defendants whether they were satisfied with the advice they had received from their solicitors and with the performance of their counsel in court. At least four out of five defendants in both the Crown Court and magistrates’ courts declared themselves satisfied with the advice they had received from their solicitors, and there were no significant differences in this respect between white, black and Asian defendants. Even those who were dissatisfied rarely said they were ‘very dissatisfied’.105 While black defendants in the Crown Court were rather more likely to express satisfaction if their solicitor had come from an ethnic minority (83 per cent compared with 74 per cent if the solicitor had been white), the reverse was true among Asian defendants (75 per cent compared with 86 per cent).106 As far as counsel representing them in court was concerned, all ethnic groups reported high levels of satisfaction: more than 90 per cent of white and black defendants in the Crown Court and the magistrates’ courts. Asians interviewed in the Crown Court were more likely to voice dissatisfaction (21 per cent), but not in the magistrates’ courts, where 93 105

In the Crown Court, 16 per cent of white, 22 per cent of black and 19 per cent of Asian defendants expressed some dissatisfaction. In the magistrates’ courts, the proportions were 7 per cent of white, 11 per cent of black and 12 per cent of Asian defendants. 106 For white defendants there was no difference – 85 per cent and 84 per cent respectively. In the magistrates’ courts the proportions expressing satisfaction with a solicitor from an ethnic minority compared with a white solicitor were: white (100 per cent v. 91 per cent), black (82 per cent v. 92 per cent) and Asian (92 per cent v. 85 per cent).

55

A Fair Hearing?

per cent said they were satisfied. Again, whether or not the barrister or advocate was from an ethnic minority did not make a substantial difference to whether ethnic minority defendants felt satisfied with their legal representation: the level of satisfaction was high throughout.107 Indeed, three-quarters of white and black and two-thirds of Asian defendants in the Crown Court said that their advocate had said ‘everything in their favour that she or he could’. There were similar findings in the magistrates’ courts.108 Roughly the same proportion of all three ethnic groups in both the Crown Court and the magistrates’ courts said that they had received advice from their lawyer on how to plead.109 A higher proportion of black and Asian defendants (19 per cent and 20 per cent respectively in the Crown Court and 12 per cent and nine per cent in the magistrates’ courts) expressed dissatisfaction with this advice than did white defendants (11 per cent and none). Although the difference was not statistically significant, it was nevertheless substantial.110 The relatively small number of complaints made by ethnic minority defendants about their lawyers were, for the most part, about failure to mention what the defendant thought were relevant factors, or not being sufficiently persuasive. Not a single defendant complained that their lawyer had been racially biased or shown them lack of respect. Indeed, paradoxically, one black defendant in the Crown Court characterised the attempt by his white barrister to make a plea of mitigation based on his disadvantaged upbringing as ‘an attack on my personality’, because he thought that the barrister ‘shouldn’t have used colour or background’ in mitigation ‘to advance my case’. There was no evidence that ethnic minority defendants who had an ethnic minority advocate (either in the Crown Court or the magistrates’ courts) rather than a white advocate were more or less likely to say that

107

In the Crown Court, 93 per cent of black defendants with an ethnic minority barrister were satisfied compared with 90 per cent who had a white barrister. Similarly, 77 per cent of Asian defendants with an ethnic barrister were satisfied compared with 80 per cent who had a white barrister. The comparable figures for white defendants were 100 per cent and 93 per cent. In the magistrates’ courts, 95 per cent of black defendants were satisfied with their ethnic minority advocate and 89 per cent with their white advocate. The comparable figures for Asian defendants were 95 per cent and 91 per cent and for white defendants 100 per cent and 93 per cent. 108 Twenty-one per cent of white, 26 per cent of black, but 37 per cent of Asian defendants thought that more could have been said in their favour. 109 In the Crown Court 67 per cent of white, 65 per cent of black, and 71 per cent of Asian defendants; and in the magistrates’ courts 55 per cent of white, 61 per cent of black and 68 per cent of Asian defendants. 110 Comparing both ethnic minority groups with whites:
2:2.551, 1df, p:0.11.

56

Perceiving racial bias

their treatment as a whole had been unfair,111 or that it had been affected by racial bias.112

Probation officers and pre-sentence reports Of the defendants in the Crown Court who said that a pre-sentence report had been prepared on them by the probation service,113 roughly the same proportions of each of the three groups said that it had been fair to them (64 per cent of white, 66 per cent of black and 76 per cent of Asian defendants). This was also the case among the smaller proportion of defendants in the magistrates’ courts who said that a pre-sentence report had been prepared on them.114 Only eight of 111 black defendants (seven per cent) and five of 53 Asian defendants (nine per cent) in the Crown Court and six of 57 black (10.5 per cent) and two of 27 Asian (seven per cent) defendants in the magistrates’ courts who could remember what was said in the report believed that it had been biased against them on ethnic grounds. Examples were: ‘A white person would have received more support’; ‘If I had been white I would have got another option recommended than custody’; ‘I was judged quickly and not understood properly. It didn’t represent me. This was because of my race’; ‘I think there is some racism. She said I would re-offend, it didn’t give me a fair chance . . . even though she was a black probation officer’; ‘She was white and thinks all blacks rob’; ‘This woman sees me as a black person who gets into 111

Crown Court: where the advocate of black defendants was white, 32 per cent said some aspect of their treatment had been unfair, compared with 35 per cent where the advocate was from an ethnic minority. It was the same for Asian defendants (18 per cent ‘unfair’ white advocate; and 22 per cent ‘unfair’ ethnic minority advocate). Magistrates’ courts: black defendants (25 per cent ‘unfair’ white advocate and 15 per cent ‘unfair’ ethnic minority advocate,
2:1.454, 1df, p:0.256); for Asians the percentages were 21 per cent and 28 per cent,
2:0.341, 1df, p:0.559, not statistically significant. 112 Crown Court: where the advocate of black defendants was white, 17 per cent said that the sentence/judge had been unfair due to race, compared with 19 per cent where the advocate was from an ethnic minority. Asian defendants, 8 per cent compared with 9 per cent. Magistrates’ courts: black defendants (6 per cent white advocate compared with 12 per cent ethnic minority advocate); Asian defendants (15 per cent compared with 14 per cent). 113 Seventy-nine per cent of cases in the Crown Court where sentence had been imposed: white 77 per cent; black 77 per cent; and Asian 84 per cent. 114 In the magistrates’ courts, 31 per cent of sentenced defendants had had a pre-sentence report prepared by the probation service. Seventy-two per cent considered it to have been fair: 73 per cent of white, 69 per cent of black and 76 per cent of Asian defendants. As in the Crown Court, there was no evidence that ethnic minority defendants were more likely to regard their pre-sentence report as unfair than were white defendants: 23 per cent of white, 23 per cent of black and 17 per cent of Asian defendants.

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A Fair Hearing?

trouble’; ‘It was not in depth enough . . . The probation officer automatically assumed something about black people, and was a woman’; ‘He didn’t take into account my personal circumstances. He was a racist man, who was unfriendly and suggested I should be in prison . . . He was a white man, I felt it would be fairer if whites treated you as a white man/brother, rather than thinking that black people who violate the law are bad people. He was not friendly. I could tell from his body language and he didn’t have a caring attitude’; ‘Not everything was put in. He did not mention that I was working and that at college I was studying on an IT course. The whole system is like that. They want to put you behind bars’.

The conduct of security staff Ethnic minority defendants were more likely than white defendants to express dissatisfaction with the security staff responsible for the court cells and transfer to and from prison. In the Crown Court, six per cent of white, nine per cent of black and 11 per cent of Asian defendants who had arrived from prison expressed dissatisfaction with the security officers who had transported them. In the magistrates’ courts, a much higher proportion of Asian (27 per cent) and black (20 per cent) than white defendants (eight per cent) complained. Similarly, ethnic minority defendants who were held in custody in the court cells were more likely to express their dissatisfaction with the security officers there, again especially in the magistrates’ courts.115 Only 11 of 277 defendants (four per cent) in the Crown Court who had a security officer in the dock with them said they were dissatisfied with that officer’s conduct: two per cent of white, six per cent of black, and two per cent of Asian defendants. In the magistrates’ courts the percentage was higher (nine per cent), although still a minority: none of white, 14 per cent of black and six per cent of Asian defendants. These complaints about treatment in the cells or during transfer were mostly about food or a failure to respond to requests soon enough. Only one defendant said that his bad treatment had been racially motivated. ‘I was beaten up by the security company guards because I requested to smoke my cigarette . . . I should be smoking it when I feel like smoking it. And I should wrap it when I feel like wrapping it. But they said it was time to teach me a lesson. Next minute five or six of them, all white, come 115

Crown Court: white nine per cent, black 16 per cent, Asian 20 per cent. Magistrates’ courts: white three per cent, black 22 per cent, Asian 24 per cent. This difference was statistically significant:
2:6.071, 2df, p:0.048.

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Perceiving racial bias

round the corner, they kick me to the floor, they take my shoes off me. I’m planning to take legal action against them. They are racist’. (AfricanCaribbean at magistrates’ court)

The language of the court Being fluent in English is not the same thing as saying that one can understand the language of the courts. We therefore asked whether the defendants had found the language to be clear, and a quarter (26 per cent) in the Crown Court and 14 per cent in the magistrates’ courts said that they had not. Surprisingly, there were no differences between the proportions of white defendants and minority ethnic defendants who said that they found the language hard to comprehend.116 Sixty per cent of those who had had difficulties in understanding the court proceedings (16 per cent of all those interviewed in the Crown Court and eight per cent in the magistrates’ courts) said that it had put them at a disadvantage. Although there were no differences in the Crown Court according to ethnicity, in the magistrates’ courts black defendants were more likely than either white or Asian defendants to say that it had done so.117 The main complaints by the white defendants were difficulties in understanding legal jargon and educated ‘posh’ accents, as well as the sheer difficulty of hearing what was going on. This was also true for ethnic minorities, but more of them (20 altogether) said that their English had not in fact been good enough and only three of them had had an interpreter.

Conclusion The five key findings of Chapters 3 and 4 can be summarised as follows: 1. The majority (at least two-thirds) of defendants – white, black and Asian – in both the Crown Court and the magistrates’ courts did not think they had been treated unfairly in court, even though most were interviewed shortly after their case had concluded. 116

White (29 per cent), black (27 per cent) and Asian (22 per cent) in the Crown Court and white (15 per cent), black (12 per cent) and Asian (17 per cent) in the magistrates’ courts. 117 In the Crown Court, of those who said they had difficulties in understanding, 56 per cent of white, 59 per cent of black and 75 per cent of Asian defendants said that it had put them at a disadvantage. In the magistrates’ courts (where far fewer had complained that that they did not understand the language: 8 per cent), the proportions who said they were put at a disadvantage were: white (46 per cent), black (73 per cent) and Asian (47 per cent).

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A Fair Hearing?

2. Of the minority of black and Asian defendants who did perceive their treatment as unfair, more than half in the Crown Court and four out of ten in the magistrates’ courts attributed this to racial bias. 3. Black defendants in the Crown Court were the most likely (one in five) to say that they had been treated unfairly due to their ethnic background. This was twice as high as the proportion (one in ten) of the black defendants who said this in the magistrates’ courts. 4. One in eight Asian defendants in both the Crown Court and the magistrates’ courts perceived racial bias in their treatment. 5. In only a very few cases did ethnic minority defendants attribute unfair treatment to racist language or the perceived attitude of the judge, a magistrate, or a member of the court staff. The complaints were most often about perceived ‘excessive’ or ‘disproportionate’ sentences as compared with what it was thought a white defendant would have received, from which they had inferred racial bias. Black defendants in the Crown Court tended to mention this more often than Asian defendants, although still only a minority (one in six) did so.

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Chapter 5

Perceptions of unfairness in context

In this chapter we explore the possibility that perceptions of unfair treatment in court might have varied according to personal characteristics of the defendants interviewed: their age; whether British-born or not; whether previously convicted; whether acquitted; or if convicted, whether sentenced to custody or not. We also have attempted to examine whether perceptions of unfairness and racial bias were affected by the ethnic composition of the staff of the courts in the three main areas studied and whether the interviewer was from an ethnic minority or white.

Personal characteristics The age distribution of white, black and Asian defendants interviewed for this study was very similar and no statistically significant differences were found in the proportion in each age group who complained of unfair treatment in court, or unfair treatment ‘due to race’.118 Nor did it

make any difference to the proportion of black or Asian defendants who said that they had been unfairly treated in general, or unfairly 118

Defendants were divided into four age groups: aged 20 and under, 21–26, 27–34, and 35 or older. A very similar proportion of each ethnic group (about half) in the age range 26 and younger complained of unfair treatment in the Crown Court. In the magistrates’ courts a rather higher percentage of Asian defendants who complained of unfair treatment (63 per cent) than black (42 per cent) or white (50 per cent) defendants were in this younger age group. There were no statistically significant differences according to age for either black or Asian defendants as regards complaints of unfair treatment in court due to race.

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A Fair Hearing?

treated ‘due to race’, that the person interviewed had been born in Britain or overseas.119

Acquittal As expected, the fact that the sample of interviewees overrepresented the convicted (and underrepresented acquitted defendants) inflated the proportion who had perceived their treatment in court to have been unfair. Among the small number of acquitted persons interviewed from ethnic minorities, only 13 per cent (5/38) said that their treatment had been unfair, compared with 29 per cent (157/535) of those who had been convicted in either the Crown Court or the magistrates’ courts. Only eight per cent of acquitted ethnic minority defendants said that their treatment in court had been unfair due to race, compared with 14 per cent of the convicted. Thus, had the sample as a whole been representative of acquitted persons in the Crown Court, the proportion who complained of racially unfair or discriminatory treatment would have been considerably lower, although the figures for the magistrates’ courts, which have a much lower acquittal rate, would have been less affected.

Previous experience of criminal courts There was no evidence to suggest that the black and Asian defendants interviewed for this study were more likely to have had bad experiences in the past at the hands of the courts. Indeed, among Crown Court defendants, a lower proportion of black (75 per cent) and a much lower proportion of Asian (55 per cent) than white defendants (83 per cent) had previously appeared in a criminal court. The same pattern was found 119

In the Crown Court, 35 per cent (43/122) of the black and 26 per cent (13/50) of the Asian defendants who were born in the British Isles said that some aspect of their treatment in court had been unfair, compared with 29 per cent (14/49) of black and 28 per cent (7/25) of Asian defendants who were born overseas. The proportions of British and non-British born black (21 per cent) and Asian defendants (12 per cent) in the Crown Court who complained that the unfairness was due to race were identical. In the magistrates’ court, 26 per cent (38/149) of black and 29 per cent (22/77) of Asian defendants who were born in the British Isles said that some aspect of their treatment in court had been unfair, compared with 23 per cent (15/64) and 28 per cent (10/36) of those who were born overseas. As regards ‘unfairness due to race’, the figures were again very similar.

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Perceptions of unfairness in context

among those interviewed in the magistrates’ courts.120 As a result, a considerably lower proportion of Asian and a slightly lower proportion of black than white defendants had previously served a custodial sentence.121 It was interesting to note that white and black defendants in the Crown Court who had had a previous court experience were more likely to complain of unfair treatment than first-timers; and black defendants with previous court experience were more likely to attribute their perceived unfair treatment ‘to race’. These differences were not, however, statistically significant.122 As far as Asian defendants were concerned the findings were reversed: first-timers were significantly more likely to complain of ‘unfair treatment in court due to race’ than those with previous appearances.123

The sentence imposed It is perhaps not surprising that those in the Crown Court who had been sentenced to imprisonment were more likely than those who did not receive a custodial sentence to perceive their treatment by the court as ‘unfair’: 36 per cent (96/267) compared with 13 per cent (9/69). The difference was greater for black and Asian

120

Fifty-five per cent of the Asian, 65 per cent of the black and 71 per cent of the white defendants. A higher proportion of the white defendants interviewed in the Crown Court had previously appeared in the Crown Court (59 per cent), than had the black (43 per cent) and Asian (29 per cent) defendants. Similarly, among those interviewed in the magistrates’ courts, a lower proportion of Asian defendants had previously had experience of being in the Crown Court (19 per cent) than either black (39 per cent) or white (34 per cent) defendants. 121 Among Crown Court interviewees, 51 per cent of the white, 46 per cent of the black, and 31 per cent of the Asian defendants. And among the magistrates’ courts interviewees, 38 per cent of the white, 33 per cent of the black and 20 per cent of the Asian defendants. 122 Crown Court ‘unfair treatment in court’: white defendants, previous convictions 31 per cent, no previous convictions 21 per cent; black defendants, previous convictions 36 per cent, no previous convictions 26 per cent. Crown Court ‘unfair treatment in court due to race’: black defendants, previous convictions 23 per cent, no previous convictions 14 per cent.
2:1.5, 1df, p:0.221. There were no significant differences in the magistrates’ courts. 123 Crown Court ‘unfair treatment in court’: previous convictions 24 per cent, no previous convictions 29 per cent. Crown Court ‘unfair treatment in court due to race’: previous convictions 2 per cent, no previous convictions 24 per cent.
2:7.83, 1df, p:0.005. No significant differences were found in the magistrates’ courts.

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A Fair Hearing?

defendants than for white defendants.124 Furthermore, the proportion of black defendants sentenced to custody in the Crown Court who said that they had been ‘unfairly treated due to race’ was 24 per cent, compared with seven per cent of those not sentenced to custody.125 For Asian defendants the figures were 16 per cent and five per cent, although this difference was not statistically significant. In the magistrates’ courts, the differences were not nearly so great: 34 per cent of those sentenced to custody perceived their treatment in court to have been unfair, compared with 24 per cent of those who did not receive a custodial sentence. The proportions of both black and Asian defendants who said that their unfair treatment in court had been ‘due to race’ were also similar whether they had been sentenced to custody or not.126 In other words, the findings in magistrates’ courts were not greatly affected by the proportion sentenced to custody.127 As the sample overrepresented offenders sentenced to custody (see page 27 above), it is clear that had we based the study on a random sample of all cases heard by the courts studied, the proportion of defendants – white, black and Asian – complaining of unfair treatment would have been somewhat lower, particularly in the Crown Court.

Ethnic composition of the courts To what extent were defendants’ perceptions affected by the ‘ethnic environment’ of the courts in which their cases were heard and the convicted sentenced? To answer this it is necessary to describe the extent to which minority ethnic people were represented in the courts we studied among those who performed various tasks in an official capacity in public view – whether as judges or magistrates, lawyers, clerks, court transcript recorders, ushers or security staff. We tried to obtain this information in two ways. First, we sought information from court 124

Black defendants: 39 per cent sentenced to custody said their treatment in court had been ‘unfair’ compared with 14 per cent not sentenced to custody:
2:6.1, 1df, p:0.013. For Asian defendants, the figures were 34 per cent compared with 11 per cent:
2:3.8, 1df, p:0.051. For white defendants, 33 per cent compared with 14 per cent:
2:3.18, 1df, p:0.074. 125 2
:3.95, 1df, p:0.047. 126 Black defendants: 14 per cent of those sentenced to custody said that their treatment had been ‘unfair due to race’, compared with nine per cent of those not sentenced to custody; Asian defendants: custody 17 per cent, non-custody 12 per cent. Neither difference was statistically significant. 127 In the magistrates’ courts, only 11 per cent of Asian defendants had been sentenced to custody, compared with 18 per cent of black and 23 per cent of white defendants. However, Asian defendants were more likely to say (32 per cent) that their treatment had been unfair in court than either black (27 per cent) or white (20 per cent) defendants.

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Perceptions of unfairness in context

managers about the ethnicity of their staff. Second, whenever an observation was made of proceedings in court, the researchers noted, so far as they were able through visual identification, whether any persons undertaking these roles in the courtroom setting were from an ethnic minority. Granted that this was not a perfect method, it nevertheless provided a reasonably accurate approximation of what the ethnic composition of the court looked like to the defendants. In the three Crown Court centres where the main fieldwork was conducted, no judge, whether full-time or part-time, was from an ethnic minority;128 and only one (in South London) of the 18 District Judges sitting in the magistrates’ courts was from an ethnic minority.129 In the magistrates’ courts, however, minority ethnic people were much better represented among the lay magistracy: in virtually the same proportion (between 16 and 18 per cent) in each of the three areas. In Manchester and Birmingham this was higher than the proportion in the general population and only in South London were ethnic minorities underrepresented on the Bench.130 Only the magistrates’ courts routinely monitored and recorded the ethnicity of their staff. In contrast to the magistracy, it was rarer to see an official from an ethnic minority working ‘in public view’ in the magistrates’ courts we studied. At Manchester magistrates’ court, only three of the 27 legal advisers working there were from an ethnic minority, and none of the 20 court ushers.131 At Birmingham, where 26 of the 191 staff (14 per cent) were from an ethnic minority, only nine of them (seven of the 39 legal advisers and two of the 28 ushers) worked ‘in public view’. In contrast, at the South London courts, 33 of the 113 court staff (29 per cent) were from ethnic minorities: but although more than half of the court ushers (seven out of 13) were from an ethnic 128

There was an African-Caribbean female circuit judge at the Crown Court visited for the pilot study. According to the statistics presented in the Consultation Document Increasing Diversity in the Judiciary, CP 25/04 (Department for Constitutional Affairs, October 2004), in March 2003 no High Court judge, and just 2.2 per cent of circuit judges and 4.0 per cent of recorders were from a minority ethnic background (Table 27, p. 122). 129 There were three District Judges sitting in Manchester (none of whom was from an ethnic minority), seven in Birmingham (none of whom was from an ethnic minority) and three in South London (one of whom was from an ethnic minority). 130 In Lambeth and Southwark the proportion of black Caribbean, African and others in the general population in 1998–99 was estimated to be 25 per cent, and of ethnic minorities as a whole 33 per cent, whereas 17 per cent of the magistrates were drawn from the minority ethnic population. In the Birmingham Police Area it was estimated that, in mid-1999, 12.7 per cent of the population aged 10 or over, and 18 per cent of magistrates, were from ethnic minorities. And in the Manchester Police Area it was estimated that, in mid-1999, 6.1 per cent of the population but 16 per cent of the magistracy were from ethnic minorities. See Statistics on Race and the Criminal Justice System 2000, published by the Home Office under Section 95 of the Criminal Justice Act 1991. 131 Altogether, only 10 of the 179 staff employed by the court (6 per cent) were from ethnic minorities.

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A Fair Hearing?

minority, only one of the more high-status legal advisers was from such a background. Birmingham Crown Court centre carried out a survey of its staff for us: 13 of the 70 staff (19 per cent) said they were from an ethnic minority; but of those ‘on public view’ in the courts, only one of the 15 clerks and two of the 20 ushers. There were no figures available at either Manchester Crown Court centre or the Inner London Crown Court centre, but it was very noticeable that at Manchester no ethnic minority court staff worked in the public areas, while at Inner London there were many. As mentioned in Chapter 2, observations of cases in court made it possible to estimate how often defendants from ethnic minorities were able to see another person of minority ethnic background in an official capacity in the court in which they were appearing. By this we mean judges or magistrates, court clerks (legal advisers in magistrates’ courts), those who record proceedings in court, ushers, security officers, as well as advocates for the prosecution and defence, but not witnesses or co-defendants or (in the relatively few trials observed) jury members.132 This information could not be obtained for all these categories of persons for each case observed, partly because the observers entered the courtroom at different stages of the proceedings. But, in so far as we are able to give an account of who was present in the court room during the proceedings as a whole in cases where the defendant was later interviewed, a person from an ethnic minority filled the roles shown in Table 5.1. Ethnic minority defendants in the Crown Court, but not in the magistrates’ courts, were more likely than white defendants to have selected solicitors from a minority ethnic group.133 And in both types of court they were more likely to have been represented in court by an advocate from an ethnic minority. This was especially true of Asian defendants, nearly a third (31 per cent) of whom had an advocate from a minority ethnic group.134 The relatively high proportion of observed 132

Although 49 defendants who had been tried by jury in the Crown Court were interviewed, the composition of the jury was only observed in 15 of these cases (most of the rest were seen after conviction and remand for sentence). Of these 15 juries, four were all white, three had only one ethnic minority juror, and eight had two or more. 133 In the Crown Court, the proportions who said that their solicitor was from an ethnic minority were: 45 per cent black, 51 per cent Asian and 26 per cent white. In the magistrates’ court, two-thirds (64 per cent) had been legally represented (70 per cent of white, 64 per cent of black and 59 per cent of Asian defendants) and of these, 30 per cent of white, 33 per cent of black and 37 per cent of Asian defendants had solicitors from an ethnic minority. 134 In the Crown Court, 19 per cent of the black, 31 per cent of the Asian and 7 per cent of the white defendants had an ethnic minority advocate. In the magistrates’ courts where the defendant was legally represented, the advocate was from an ethnic minority in 28 per cent of cases where the defendant was black, 33 per cent where Asian and 14 per cent where white.

66

Perceptions of unfairness in context Table 5.1 Proportion of observed cases in which court officials or lawyers were from an ethnic minority (percentages rounded) Crown Court

Judge/District Judge Magistrate (at least one of Bench from an ethnic minority) Court clerk/legal adviser Court transcript recorder Usher Defence advocate Prosecution advocate Security officer

Magistrates’ courts

N

%

N

%

2/254 —

1 —

5/106 68/192

5 35

57/236 55/225 18/238 40/250 25/239 96/240

24 24 8 16 11 40

30/282 — 26/266 41/182 20/250 3/27

11 — 10 23 8 11

cases where the court clerk and court transcript recorder were from an ethnic minority masks very large differences between the Crown Court centres: 93 per cent of the cases in which an ethnic minority court clerk (53 of the 57) and 66 per cent (36 of the 55) of the cases in which an ethnic minority court transcriber were observed were at the Inner London Crown Court. In none of the 54 cases observed at Manchester Crown Court, and only three of the 81 at Birmingham Crown Court, was the court clerk from an ethnic minority. This was consistent with our general observation of the low number of ethnic minority court staff on public view at these two Crown Court centres. How often, therefore, were ethnic minority defendants faced with a court where everyone, by which we mean all the professionals and support staff (including the advocates on both sides), was white: an ‘all-white’ court? It is not possible to be precise, because the researchers could not always be in the court during the entire hearing, but the following estimates give a broad impression of the state of affairs. About a third of the ethnic minorities appearing in the Crown Court and about four in ten appearing in the magistrates’ courts were faced with a court in which no ethnic minority person was filling one of the key roles.135 This varied between the three main Crown Court centres: it was much more likely to occur at Manchester, where in 30 of the 33 observed cases there were no ethnic minority court staff or professionals – 91 per cent faced ‘all-white’ courts. In comparison, at Inner London Crown Court only 10 of 69 ethnic minority observed defendants (15 per cent) appeared 135

Excluding security staff (who are not members of the Court Service), the proportion of cases in which the court was ‘all white’ rose to exactly half.

67

A Fair Hearing?

before such courts, and at Birmingham half did (34 of 66). It also varied in a similar way between the magistrates’ courts: at Manchester 58 per cent of observed ethnic minority defendants had been dealt with by an ‘all-white’ court, at Birmingham 43 per cent and at the South London courts only 27 per cent. Of the 36 complaints of racial bias relating to sentence or judge from ethnic minority defendants in the Crown Court (see Table 3.3), 13 were made at Birmingham; 17 at Inner London; five at Manchester; and one at Isleworth. In relation to the number of defendants interviewed, the proportion who perceived racial bias was considerably higher at Inner London and Birmingham (18 and 17 per cent respectively) than at Manchester (10 per cent) and Isleworth (5 per cent). These variations were not explained by different proportions having been sentenced to custody at these courts. Indeed, there was no consistent relationship between the proportion of defendants perceiving racial bias in the different Crown Court centres and the proportion sentenced to custody: the highest proportion sentenced to custody was at Manchester (89 per cent) and Inner London (83 per cent) and the lowest at Isleworth (75 per cent) and Birmingham (66 per cent). Nor was there a relationship between perceived unfairness and the proportion of court staff from ethnic minorities. Manchester had a low rate of complaints and very few ethnic minority staff; Inner London Crown Court had proportionately more complaints of unfairness, yet a higher proportion of ethnic minority staff; whereas Isleworth had the highest proportion of ethnic minority staff and the lowest level of perceived unfairness. At the magistrates’ courts (Table 3.4), 23 (74 per cent) of the 31 complaints of racial bias by ethnic minority defendants relating to sentence, magistrates or court staff were made at Birmingham magistrates’ court, although only 17 per cent of the 133 ethnic minority defendants interviewed had been dealt with at Birmingham. In contrast, complaints of unfair treatment were made by only five of the 75 ethnic minority defendants at Camberwell Green and Tower Bridge magistrates’ courts (seven per cent), three of the 100 ethnic minority defendants at Manchester and none of the 19 ethnic minority defendants at Uxbridge. Thus, again, there was no correlation between the proportion of complaints of unfairness or racial bias and the proportion of minority ethnic staff ‘on view’. But was the proportion of complaints affected by the ethnicity of the decision-makers? We had an opportunity in the magistrates’ courts to analyse whether there was any relationship between: (a) perceptions of unfairness by ethnic minorities as regards the sentence or magisterial conduct; and (b) the presence or absence of at least one ethnic minority magistrate or ethnic minority District Judge on the Bench. This is because 68

Perceptions of unfairness in context Table 5.2 Sentence ‘different’: observed ethnic minority cases (N:63) (percentages rounded) Sentence ‘All-white’ Bench

Less than expected Greater than expected, not influenced by race Greater than expected, ‘due to race’

‘Ethnically mixed’ Bench

Total

N:48

%

N:15

%

N:63

%

20

42

5

33

25

40

9

19

3

20

12

19

19

40

7

47

26

41

in 220 of the observed cases the researchers had noted the ethnic composition of those sitting in judgment, although this did not include all the cases where complaints of bias had been made.136 The analysis did not support the hypothesis that black and Asian defendants would be less likely to say that they had been unfairly treated because of racial bias in the sentence imposed or in the attitude of the magistrate(s) when they had appeared before an ‘ethnically mixed’ Bench. In fact, the proportion of ethnic minority defendants (black and Asian combined) who complained of unfairness in sentencing or magisterial conduct was just the same (eight per cent) where the Bench had been ‘ethnically mixed’ as where it had been ‘all white’. Another way of looking at this issue was to test the hypothesis that black and Asian defendants would be less likely to say that their sentence ‘was different from that which would have been imposed on other similarly situated offenders’ when there had been an ethnic minority magistrate or District Judge on the Bench that decided their case. We had relevant information for 63 black and Asian defendants. Table 5.2 shows that the proportion of them who said that their sentence was ‘greater than expected due to race’ was higher (47 per cent) when the Bench had been ‘ethnically mixed’ than when it had been ‘all white’ (40 per cent). Although this difference is not large, it is not in the direction that would be predicted by those who think that ‘ethnically mixed’ Benches are likely to be perceived as more lenient by ethnic minority defendants than are ‘all-white’ Benches. The implications of these findings are discussed further in Chapter 11.

136

Only 17 of the cases.

69

A Fair Hearing?

Response bias? To what extent were the responses of defendants influenced by the ethnicity of the interviewers? In the magistrates’ courts there were no statistically significant differences in the proportion of defendants perceiving unfairness, whether the interviewer was a minority ethnic person or a white person, although the differences in respect of those who said their treatment in court was ‘unfair due to race’ were in the hypothesised direction.137 In the Crown Court, ethnic minority defendants were somewhat more likely to tell an ethnic minority interviewer that their treatment had been unfair or racially biased, but again the differences were not statistically significant.138

137

The proportion of black and Asian defendants in the magistrates’ courts who said that their treatment in court was unfair was exactly the same whether the interviewer was from an ethnic minority (41 per cent: 110/271) or white (40 per cent: 22/55). It was only slightly different (although in the hypothesised direction) in respect of those who said their treatment in court was unfair because of a racial influence: 11 per cent (31/271) among those interviewed by ethnic minority interviewers and 6 per cent (3/55) amongst those interviewed by white interviewers:
2:1.75, 1df, p:0.186, not significant. 138 The proportion of black and Asian defendants in the Crown Court who said that their treatment in court was unfair was 54 per cent (87/160) when the interviewer was from an ethnic minority and 44 per cent (35/80) when the interviewer was white:
2:2.409, 1df, p:0.121 (not significant but in the hypothesised direction). In respect of those ethnic minority defendants who said their treatment in court was unfair because of a racial influence, the figures were 19 per cent (31/166) where there was an ethnic minority interviewer and 16 per cent (13/80) where the interviewer was white. For black defendants the figures were 24 per cent v. 16 per cent (in the hypothesised direction) but for Asian defendants they were 11 per cent v. 18 per cent (not in the hypothesised direction).

70

Chapter 6

A question of confidence

Confidence in equal treatment Were ethnic minority defendants confident that they could trust the criminal courts to deal with them equitably? We approached this question in a number of ways. First, we asked whether they believed that people from ethnic minorities were always treated by the criminal courts in the same way that a white person would be treated (a tough test of non-discrimination). If they said ‘No’, they were asked on what grounds they held this view. Then we explored, in various ways, whether their experience in the current case had changed their level of confidence in the criminal courts. Finally, we canvassed views on whether there were any changes in procedures or practices that might increase the confidence of minority ethnic defendants and witnesses in the Crown Court and the magistrates’ courts. As Table 6.1 shows, about a third of all defendants in the Crown Court said ‘Yes’, they did think that ethnic minority defendants were always treated the same as white persons (28 per cent of black, 35 per cent of Asians and 33 per cent of white defendants). However, in the magistrates’ courts, a much lower proportion of black defendants (17 per cent) than white defendants (43 per cent) or Asian defendants (36 per cent) said that there was always equal treatment. Leaving aside those who did not feel able to say, one way or another, whether there was always equal treatment, we found that in both types of court a considerably higher proportion of the black defendants (44 per cent in the Crown Court and 49 per cent in the magistrates’ courts) than either Asian (32 and 26 per cent) or white (30 and 16 per cent) defendants positively endorsed the view that there was not always equal treatment of ethnic minority defendants. 71

A Fair Hearing? Table 6.1 Are ethnic minority defendants always treated equally to white people in the criminal courts? (percentages rounded) White Crown Court YES, always treated equally Not sure/don’t know NO, not always treated equally

Black

YES, always treated equally Not sure/don’t know NO, not always treated equally

Total

N:108

%

N:170

%

N:75

%

N:353

%

35 41 32

32 38 30

47 48 75

28 28 44

26 25 24

35 33 32

108 114 131

30 32 37

White Magistrates’ courts

Asian

Black

Asian

Total

N:82

%

N:214

%

N:110

%

N:406

%

35 34 13

43 42 16

32 78 104

17 40 49

38 41 31

36 37 26

105 153 148

26 38 37

Those who thought there was not always equal treatment were asked to select (they could select more than one) from the following list their reasons for holding this opinion. Was it: ( their experience in court as a defendant? ( what had happened to people they knew, including their own observations? ( ‘common knowledge’ gained from TV, newspapers, or ‘on the street’? Table 6.2 (which is based on the main reason offered, in descending order) reveals that the majority of black (71 per cent) and Asian (58 per cent) defendants in the Crown Court who said there was not always equal treatment based their view on their own experience as a defendant in court. The remainder based their opinion on what they knew about the treatment of other persons from ethnic minorities or on ‘common knowledge’. In the magistrates’ courts, 56 per cent of black defendants and 65 per cent of Asian defendants who said there was not always equal treatment of ethnic minorities by the court based this on their own experience as defendants. However, many of the defendants gave multiple reasons for believing that ethnic minorities were not always treated equally by the criminal courts. Thus, altogether, six out of ten black and Asian defendants in the Crown Court, and about eight out of ten in the magistrates’ courts, who said there was not always equal treatment endorsed the view that it was ‘common knowledge’. 72

A question of confidence Table 6.2 Those who thought there was not always equal treatment of ethnic minority defendants in the criminal courts: Main reason why (percentages rounded) Black

Asian

Crown Court

N:75

%

N:24

%

Because of my own experience (Percentage of total sample)

53 53/170

71 31

14 14/75

58 19

Because of treatment of people I know or things I’ve witnessed (Percentage of total sample)

16

21

7

29

16/170

9

7/75

9

It’s common knowledge (Percentage of total sample)

6 6/170

8 4

3 3/75

13 4

Black

Asian

Magistrates’ courts

N:104

%

N:31

%

Because of my own experience (Percentage of total sample)

58 58/214

56 27

20 20/110

65 18

Because of treatment of people I know or things I’ve witnessed (Percentage of total sample)

28

27

5

16

28/214

13

5/110

5

It’s common knowledge (Percentage of total sample)

17 17/214

16 8

6 6/110

19 5

But, when one considers the sample of defendants as a whole (i.e. including those who thought there was always equal treatment) the proportion of ethnic minority defendants who said that it was ‘common knowledge’ that people from ethnic minorities were not always treated equally was: ( 28 per cent (47/170) of black defendants and 20 per cent (15/75) of Asian defendants in the Crown Court ( 39 per cent (83/214) of black defendants and 24 per cent (26/110) of Asian defendants in the magistrates’ courts. These findings can be compared with the information collected by the Home Office for its Citizenship Survey in England and Wales. Carried out contemporaneously with the study reported here, the Citizenship 73

A Fair Hearing?

Survey included perceptions of racial prejudice and discrimination in England and Wales which had been gathered from the general population, not solely as in the current study from those who had just appeared before a criminal court. Respondents were asked to imagine themselves as a member of the public using the services provided by the courts – presumably most interpreted this as the criminal courts. They were then asked to say whether they felt the courts would treat them ‘worse than people of other races, better than people of other races, or the same as people of other races’. Twenty-five per cent of the black respondents and 10 per cent of the Asian respondents said that they would expect the courts to treat them worse than people of other races.139

Clearly, therefore, there is still a minority of black and Asian defendants whose views may be influenced by what they regard as a ‘general perception’ among the ethnic minority population that the courts cannot always be trusted to treat them in the same way as white defendants.

Fairness of treatment compared with previous occasions We attempted to assess, for those who had previously appeared in court, whether ethnic minority defendants as compared with white defendants were more likely to say that they had been treated ‘less fairly or with less respect’ on this occasion than when they previously had been in court. As Table 6.3 shows, there were no statistically significant differences between the responses of white, black and Asian defendants. However, the trends show that a somewhat higher proportion of ethnic minority than white defendants felt that they had been treated better on this occasion in both types of court. On the other hand, it is noticeable that a lower proportion of black than Asian defendants felt better treated on this occasion at the Crown Court and a higher proportion worse treated at both types of court.

Current experience: its impact on confidence Defendants were asked whether their current experience – remembering that most were asked immediately after being sentenced, the vast majority in the Crown Court to prison – had affected their confidence in 139

Gurchand Singh, Maria O’Beirne, Sultana Choudhry, Patten Smith and Becky Webb, ‘Perceptions of Racial Prejudice and Discrimination’ in Home Office Citizenship Survey (Home Office, 2004), Chapter 3.

74

A question of confidence Table 6.3 Comparison of treatment this time with that in the past (excluding first time appearances: percentages rounded) White Crown Court Better The same Worse

Black

Better The same Worse

Total

N:88

%

N:121

%

N:38

%

N:247

%

21 41 26

24 47 30

33 49 39

27 41 32

14 15 9

37 40 24

68 105 74

28 43 30

White Magistrates’ courts

Asian

Black

Asian

Total

N:56

%

N:134

%

N:59

%

N:249

%

19 31 6

34 55 11

55 50 29

41 37 22

24 25 10

41 42 17

98 106 45

39 43 18

Comparing ethnic minority defendants (black and Asian) with white defendants who said treatment was better or same v. worse: in magistrates’ courts,
2:2.642, 1df, p:0.104; in the Crown Court,
2:0.013, 1df, p:0.91.

Table 6.4 Changes in degree of confidence in the criminal courts (percentages rounded) White Crown Court More confident No change in level of confidence Less confident

Black

More confident No change in level of confidence Less confident

Total

N:109

%

N:164

%

N:74

%

N:347

%

24 49 36

22 45 33

36 73 55

22 45 34

18 26 30

24 35 41

78 148 121

22 43 35

White Magistrates’ courts

Asian

Black

Asian

Total

N:81

%

N:207

%

N:110

%

N:398

%

21 45 15

26 56 19

40 124 43

19 60 21

26 63 21

24 57 19

87 232 79

22 58 20

the criminal courts. As Table 6.4 shows, about a fifth of all defendants (22 per cent in both the Crown Court and the magistrates’ courts) said that they were now ‘more confident’. Fewer in the magistrates’ courts (20 per cent) than in the Crown Court (35 per cent) said that they were ‘less confident’. However, at both types of court, no statistically significant differences were found between the responses of defendants from different ethnic 75

A Fair Hearing? Table 6.5 Confidence in fair treatment next time in court (percentages rounded) White Crown Court YES, confident NO, not confident Don’t know

Black

Asian

Total

N:110

%

N:168

%

N:74

%

N:352

%

52 44 14

47 40 13

70 63 35

42 38 21

33 26 15

45 35 20

155 133 64

44 39 18

White

Black

Asian

Total

Magistrates’ courts

N:82

%

N:211

%

N:111

%

N:404

%

YES, confident NO, not confident Don’t know

56 12 14

68 15 17

68 82 61

32 40 29

48 39 24

43 35 22

172 133 99

43 33 25

groups as regards their levels of confidence. In this respect, black and Asian defendants were no different from white defendants.140 Another approach was to ask whether, if they were to appear in the same type of court in the future, they would feel confident that they would be treated fairly. Again (see Table 6.5), no differences between the responses of white, black and Asian defendants in the Crown Court were found: black (38 per cent) and Asian (35 per cent) defendants were no more likely to say ‘No, they would not be confident of fair treatment’ than were white defendants (40 per cent).141 But a higher proportion of the ethnic minorities were uncertain (‘Don’t know’), so that the proportion who said they were definitely confident was somewhat lower for black (42 per cent) and Asian (45 per cent) defendants that white defendants (47 per cent): less than half for all ethnic groups.142 There were, however, very different responses from minority ethnic defendants than white defendants at the magistrates’ courts – 39 per cent of black and 35 per cent of Asian defendants did not believe they would be treated fairly on the next occasion, but only 15 per cent of white


2:2.264, 4df, p:0.687. Almost as many black (42 per cent) and Asian (45 per cent) defendants as white defendants (47 per cent) said ‘Yes’ they were confident of fair treatment. The remainder did not know. 142 These findings can be compared with those of the Home Office Citizenship Survey of the general population, conducted in 2003, which found that a substantial minority of black (27 per cent) and Asian (32 per cent) citizens surveyed thought that there would be more racial prejudice in this country in five years’ time than there is today. See n. 139 above at page 74. 140 141

76

A question of confidence

defendants said this: a difference that is statistically significant.143 This finding supports the argument of the Society of Black Lawyers that many black defendants ‘see magistrates’ courts as police courts’.144 To what extent did the ethnic minority defendants who were not confident that they would on a future occasion be treated fairly by a court believe that this was because of ‘racism’? Twelve of the 55 black (22 per cent) and five of the 20 Asian (25 per cent) defendants in the Crown Court who answered this question (accounting for seven per cent of all black and Asian defendants in the Crown Court respectively) said explicitly and without prompting that they would be disadvantaged because of their colour or because, in their opinion, judges (or at least some of them – ‘it depends’) ‘are racist’. Examples from black defendants were: ‘Judges are racist here’; ‘Court run by old-fashioned and racist people’; ‘Because I’m a black man with a conviction’; ‘Not enough blacks in the court’. From Asian defendants: ‘Some bang up defendants because of colour’; ‘More mixed people needed’; ‘Judged me by my looks’; ‘My ethnic appearance, my religion’. In the magistrates’ courts, the proportion of all black (10 per cent) and Asian defendants (nine per cent) who said that they would be disadvantaged in the future because of racism was also relatively low.145 Typical comments from black defendants were: ‘A black person can never be confident’; ‘Race always plays a part’; ‘Judge is on the police side. I’m black and there’s no jury’; ‘Magistrates are biased towards blacks’; ‘Courts treat blacks differently. I’d have more confidence if there were ethnic magistrates on the Bench’. From Asians: ‘Paranoid that I would not get a fair judge, I prefer non-whites on the Bench’; ‘Asians are stereotyped. Need more ethnic minorities in the police and on the Bench’; ‘Being an Asian in court which is a white environment’. It was interesting to note that of the black and Asian defendants who said that they had been unfairly treated in both the Crown Court and the magistrates’ courts on the current occasion, only about half felt certain that they would not be treated fairly next time they appeared, and a

143

Indeed, 68 per cent of white defendants answered positively ‘Yes’, compared with only 32 per cent of black and 43 per cent of Asian defendants. Comparing ‘Yes’, ‘No’ and ‘Don’t know’ by ethnic group:
2:32.71, 4df, p:0.000. 144 See ‘Keep the jury option open’, The Voice, 30 November 1998, quoting Courtenay Griffiths, QC, of the Society of Black Lawyers. 145 Although the same proportion of white as ethnic minority defendants felt they would not be fairly treated on their next appearance in the Crown Court, many more of the white (78 per cent) compared with the black (33 per cent) and Asian (20 per cent) defendants said that this was because their criminal history ‘would count against them’.

77

A Fair Hearing?

quarter said they were confident that they would be treated fairly.146 In other words, perceived unfairness on this occasion did not necessarily produce feelings that the system would always be unfair to them.

146

In the Crown Court, 26 of the 54 black defendants (48 per cent) who said they had been unfairly treated in court on this occasion said that they would not be confident that they would be fairly treated on the next occasion, 24 per cent said they were confident of fair treatment and 28 per cent said they didn’t know. In the magistrates’ courts, 53 black defendants said that they had been unfairly treated in court on this occasion: the comparable percentages were 57 per cent, 23 per cent and 21 per cent respectively. Among the 20 Asian defendants in the Crown Court who said that they had been unfairly treated in court on this occasion, 11 (55 per cent) said they were not confident of fair treatment in the future, 25 per cent said they were confident and 20 per cent said they didn’t know. The comparable figures for the 32 Asian defendants in the magistrates’ courts who felt unfairly treated in court on this occasion were 47 per cent, 25 per cent and 28 per cent respectively.

78

Chapter 7

The views of informed observers: court officials and lawyers

The discussion above has focused on the views of ethnic minority defendants about their own treatment in court. But there are others who spend their working lives in court who are in a position to report on how they perceive the treatment of ethnic minorities, often based on extensive experience. It was for this reason that we interviewed court staff (clerks, legal advisers and ushers) who were able to observe conduct in court, and solicitors and barristers who were attuned to issues of fairness though the representation of their clients.

What court staff observed Seventeen clerks and 19 ushers were interviewed at the three Crown Court centres. Five of the 17 clerks (all female), but only one of the 19 ushers, were from ethnic minorities.147 In addition, 25 interviews were

carried out with court staff (seven legal advisers and 18 ushers) working in the magistrates’ courts:148 eight of whom were from ethnic minorities.149 Thus, altogether, 61 clerks, legal advisers and ushers agreed to be interviewed, 14 (23 per cent) of whom were from ethnic 147

Three clerks were of Asian and two of African-Caribbean background; the usher was an Asian woman. 148 There were 75 legal advisers and 61 ushers working in the courts visited for the study. 149 Four of the seven clerks and four of the 18 ushers (one male and three female): five were black and three were Asian.

79

A Fair Hearing?

minorities. Ten of the 14 minority ethnic court staff were employed in the South London courts: this reflected the low proportion of minority ethnic personnel among such staff in the other courts studied (see pages 64–69 above). On the whole, the court staff interviewed had a good deal of experience: all but six of the 47 white court staff had been in post longer than a year and more than half had three or more years’ experience. Of the 14 minority ethnic staff, four had been in post for less than a year and half for three years or more. In other words, the minority ethnic court staff we interviewed tended to be less experienced than their white counterparts. The clerks and ushers were asked a series of questions which aimed to probe whether they felt that persons from minority ethnic groups were always treated fairly and with respect in the courts; whether such defendants and witnesses were treated in the same way that a white person would be treated; and whether they had ever witnessed an incident involving unfair treatment of an ethnic minority person.

Perceptions of treatment as ‘always fair’ When asked whether minority ethnic defendants were always treated equally by the courts, 54 (90 per cent) of the 60 court staff who responded said ‘Yes’. Some spoke in glowing terms about the even-handedness of the judiciary, and only eight had something negative to report. Of these eight, two spoke in general terms, but could not give a specific example: A white male usher in the Crown Court with 22 years’ experience said: ‘Jury members sometimes just want to see them go down: they’re prejudiced’. In his view, defendants from ethnic minorities received longer sentences. But when asked whether he himself had witnessed any unfair treatment or any inappropriate language, he answered ‘No’. A female ‘Black Caribbean’ usher in the magistrates’ court, who had been employed there for 14 weeks, said that she did not think that everyone from ethnic minorities was treated equally: ‘It depends on the views and perceptions of the judge’. However, when she was asked whether she personally had witnessed anything unfair, she said also said ‘No’. A further five, all of whom thought that there was generally equal treatment, reported hearing instances where inappropriate language had, in their view, been used: 80

The views of informed observers: court officials and lawyers

A female ‘British black’ usher with two years’ experience in the magistrates’ court said that while ‘on the whole’ she had not noticed any differences in the treatment of ethnic minority defendants, she had nevertheless heard, ‘about six months previously, a lay justice make a comment about Afro-Caribbeans which the list caller in court had to ask the magistrate to rephrase so as not to cause further offence’. A female ‘black African’ magistrates’ court clerk with 12 years’ experience similarly thought that minority ethnic defendants were treated no differently from white defendants. But she had heard, about a year earlier, a magistrate make what she regarded as ‘a racist comment’ before a trial began: ‘Persons who come from Nigeria are all involved in fraud’. A female clerk in the magistrates’ court who had 10 years’ experience in the court system, and classified herself as ‘Asian Indian’, said that ‘in general minority ethnics [sic] were treated fairly and equally’. But she said she had witnessed instances of what she regarded as unfair treatment by magistrates: namely ‘assumptions made, gestures and use of a patronising tone’. An experienced (14 years) female clerk in the Crown Court, who described herself as ‘black Caribbean’, said that she thought that people from ethnic minorities were ‘on the whole treated fairly and equally’ in court. She reported, however, that she had heard white ushers make judgments of persons of a stereotypical kind based on names and nationality. She said that ‘judges try, but they don’t understand how members of ethnic minorities are treated’. They ‘rely too much on the Handbook and do not understand street language’. An Asian female of Pakistani ethnicity who had worked as a magistrates’ court clerk for nine years said that she thought that ethnic minorities were treated fairly, with respect and equally, but nonetheless she reported witnessing ‘bad comments from lay justices in the retiring room. An example being ‘‘what do you expect from those kind of people’’’. One, an experienced court officer of ‘black mixed ethnic background’, pointed to more subtle ways in which race might influence sentencing decisions: ‘Some time ago’ two co-defendants – one white, one black – were sentenced: ‘The white offender had been to university and was supported by his parents in court, whereas the black young person did not have anyone there. The judge made reference to the fact that the white 81

A Fair Hearing?

defendant’s parents had ‘‘worked hard to ensure he had an education’’. But when he came to deal with the black defendant the tone of his voice changed. He said: ‘‘I hope this has taught you a lesson’’’. The court officer thought that the sentence that the black defendant had received was a little more lenient than it would have been if he ‘had been sentenced on his own . . . I’ve noticed things like that . . . There have been a few cases where I have raised my eyebrow and thought, ‘‘you know’’’. It is significant that only one of the 47 white clerks and ushers had any doubts about whether the courts always treated ethnic minorities on an equal basis to white persons, whereas half of the 14 ethnic minority court staff believed that sometimes there was unfair treatment or that inappropriate remarks were made.

What did lawyers perceive? The researchers interviewed, around the Crown Court and the magistrates’ courts as they came upon them, or by appointment in their chambers or offices, 112 solicitors, solicitors’ legal representatives, and barristers. Thirty were in Manchester, 40 in Birmingham and 42 in London. Fifty (45 per cent) were from ethnic minorities. Thirty (27 per cent) were women, 16 of whom were from ethnic minorities. Sixty-eight (30 from ethnic minorities) were solicitors or their representatives, and 44 (20 from ethnic minorities) were barristers.

Attitudes towards ethnic awareness training Very few (only 11 of the 112 lawyers) said they had received some special training in how to respond to people from ethnic minorities,150 and all but one said that it had been helpful:151 ‘I thought it was remarkably good, given that it was trying to address an area in which all the people it was addressing approached it, including me, with the instinct ‘‘I don’t need this’’’. (white solicitor, 34 years’ experience, who had attended a course run by the Lord Chancellor’s Department) 150

Six of the 60 white lawyers (10 per cent), three of the 20 black lawyers (15 per cent) and two of the 26 Asian lawyers (eight per cent). Five lawyers (two white, two black and one Asian) did not provide an answer to this question. 151 One, a recently qualified barrister of mixed race (‘English/Sri Lankan’), complained that the single lecture on the topic that he had attended as part of his Bar Final Course was ‘farcical’: ‘It wasn’t useful at all’.

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‘I think it’s good. I think it made me aware even as a black person, made me aware of things that I was taking for granted . . . It has greatly assisted in the administration of my own practice . . . I think we must continue to improve on what we have. It is an essential feature of the administration of justice. I do not think that justice can be improved without that type of training . . . We must have training, retraining programmes and continuous monitoring of how we are doing and what lessons we have learnt and where we go from here at each stage. Those questions have got to be answered and can only be answered through training’. (‘Black Caribbean’ barrister, 23 years’ experience) Of the 101 who said they had not attended an ethnic awareness training course, more than half of white, black and Asian lawyers (57/101: 56 per cent) said that it would have been helpful to have had such training. ‘We probably need to understand their cultures a lot better than we do. We need to understand . . . the structure of their family and the way that their communities work, and I think you can do that through training to be honest’. (white solicitor, 14 years’ experience) ‘Definitely, to make people aware of cultural and language difference. It should be part of the BVC [Bar Vocational Course] and the LPC [Legal Practice Course for solicitors]’. (white barrister, six years’ experience) ‘As an Asian I don’t think I need training in how to respond to other cultures . . . But I think it would be of assistance for a non-Asian to have at least a basic knowledge as to the different races and what they do, so they don’t cause offence unintentionally’. (Bangladeshi solicitor, eight years’ experience) ‘Because a lot of barristers and solicitors, the majority of them, are not from ethnic minority backgrounds and do not understand, whether it is the language that people use, or their mannerisms, or the reasons why they do things. There is a lack of awareness and yet most of the defendants are black’. (‘African’ barrister, three years’ experience) ‘If given by ethnic minorities. Bar School should have mandatory ethnic awareness training. This would have a knock-on effect throughout the criminal justice system’. (Pakistani barrister, two years’ experience) However, 40 per cent of lawyers did not think that ethnic awareness training was needed because they already would have the necessary experience. These lawyers said, for example: ‘I’m not sure how it would help to be honest. If anybody is going to qualify to be a barrister or a solicitor you would expect them to have such basic 83

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knowledge of cultural differences. If they don’t understand cultural differences then they shouldn’t be practising’. (white solicitor, 20 years’ experience) ‘Personally, I would find it deeply insulting for it to be suggested that it should take place. In fact, for most of my career at the Bar I have represented people from ethnic minorities and I would find it offensive myself’. (white barrister, 13 years’ experience) ‘I don’t think so. I don’t care where someone comes from, what colour people are. I treat them the same. If that’s the view that you take with your clients then you can’t go wrong. You shouldn’t give anyone special treatment because they are from an ethnic minority, just as you shouldn’t treat them worse because they are from an ethnic minority. Everybody should be treated the same’. (mixed race: ‘white/black’ solicitor, 23 years’ experience) ‘Barristers are not stupid people. I mean there are obviously some people, you know, who are rude. And it’s just their attitude. It’s just them, and they can’t help it. Training is not going to help that . . . Personally, I don’t think I need any training – and that’s not being arrogant or anything. I treat everybody – every individual I meet – with respect. That’s just me’. (mixed race: ‘white and black African’ barrister, nine years’ experience)

Perceptions of treatment as ‘always equitable’ More than six out of ten solicitors and barristers interviewed for this study (63 per cent) endorsed the view that ethnic minorities were always treated fairly, equally and with respect by the courts: a slightly higher proportion of solicitors (65 per cent) than barristers (59 per cent). However, a substantially lower proportion of black lawyers (10/23: 43 per cent) felt that there was always equal treatment, compared with Asian lawyers (17/27: 63 per cent) or white lawyers (43/62: 69 per cent).152 The following comments, from both white and minority ethnic lawyers, were used to justify their confidence that equal treatment was the norm: ‘In my experience in the Crown Court: Yes. In terms of ultimate outcome of the case, for example sentencing, then I don’t know of any specific incidences of unfairness. Defendants are treated fairly. In terms of respect, Yes, visual courtesy is paid to ethnic minorities, and that is perceivable. Yes, they are treated equally. I know of only one judge at this court that is 152

These differences, although large, were not significant at the 95 per cent level of confidence:
2:4.796, 2df, p:0.09.

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abrupt and discourteous to ethnic minorities’. (white male solicitoradvocate, 23 years’ experience) ‘Yes, on the whole . . . in my experience they are treated the same . . . It’s a problem of class more than anything else. Someone who is homeless, whether they be black, white or Asian, or whatever . . . are more likely to be treated unfairly’. (white female solicitor, two years’ experience) ‘I would say 99 per cent of the time Yes. In fact, I would go further than that and say that some of the judges here are brilliant. They are very, very courteous to black defendants, make every effort to try to tune in to that cultural dynamic and equally in terms of black counsel make sure that they do not appear to be racist’. (African-Caribbean male barrister, five years’ experience) ‘I take the view, certainly from my own perspective, that if the court is dealing with a person from an ethnic minority, and that person is being represented by a person from an ethnic minority then the court always treats them fairly and with respect’. (Indian male solicitor, 10 years’ experience) ‘I would say Yes, but I think the difficulty is sometimes, particularly black persons, bring an attitude which really doesn’t encourage people to try to help them. And I think that’s the basic problem . . . It’s difficult to generalise but on the whole people are treated fairly’. (African-Caribbean male barrister, 24 years’ experience) ‘I don’t think anyone would be overtly disrespectful . . . The Bench itself seems to be sort of representative . . . I would say they probably stand the same chance as anybody else . . . I can’t recall any incidents where I felt as if ethnic minority defendants hadn’t been treated fairly or respectfully . . . But I do have black clients who develop an attitude as soon as they come into the court. Nice enough people outside but as soon as they come into the court, as soon as it comes to giving evidence, or just sitting there listening to the case against them, they start snorting and slouching, etc. which influences the magistrate. But then if a white person did the same, the magistrate would not be too impressed by them either. There was a recent case I did. A mugging on a bus, school children – they are all youths – the mugger was a black boy with a black gang and the victim was a white boy with another white boy. Similar sort of ages, massive difference in height, build, etc. The magistrate, a District Judge it was, did turn around and say that the defendant had used the race card. No, he didn’t use those exact words, he would be shot if he did . . . I thought that, if I am completely honest, the judge was completely correct. My client was using the race card, he was trying to act as if all black boys are shat upon and I do not think that that is true. The judge said something along the lines of: ‘‘in 85

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evidence you stated that the mugging did not take place, that you simply went to the boy to ask if he would buy a CD from you. The boy did not want to buy the CD and you returned back to the seat. When the bus was stopped, other people and the police came to the scene. You replied that the only reason why the other witness had panicked was because you were black and you were seen to approach a white boy. That is clearly incorrect. You approached the boy’’ . . . I think that was a perfectly fair comment, because that was exactly what we were saying. It is up to the judge whether he believes it or not’. (‘mixed race: white/Asian’ female barrister, two years’ experience)

Perceptions and experience of biased treatment Although 35 per cent of solicitors and 40 per cent of barristers said that they did not think that ethnic minority defendants were always treated fairly, equitably and with respect, when asked whether they could give any examples of unfair treatment that they had witnessed personally, a much smaller proportion (18/112: 16 per cent) said ‘Yes’: 10 of the 68 solicitors, and eight of the 44 barristers. But, yet again, a higher proportion of black (30 per cent) than either white (13 per cent) or Asian (11 per cent) lawyers said that they had personally witnessed incidents that they regarded as unacceptable. So shocking and so revealing were some of the examples given that they are quoted in detail. ‘There was an issue of bail. A defendant was appearing and making an application for bail. A relatively serious charge as I remember, but not one where bail might be refused in ordinary circumstances given his defence . . . And there was a question of a surety. And this guy was either Indian or Pakistani and I do not know which, but his surety came to court and I think that there were three or four of them, and there was no interpreter and their English was not very good. And one of them wanted to act as an interpreter which was not very good but . . . the problem was that the sureties were obviously middle-class and well-to-do people, I thought, by their demeanour. But they wore, what do you call that what Muslim men wear . . . [Kurta pyjama] . . . and they were really pressed and white and the questions put to them through their so-called interpreter were utterly appalling. No white person, no person who spoke English I think, would have stood for it. And when there was a slight misunderstanding there was all this [she put her head in her hands as the judge apparently did and sighed] and they were clearly stupid because they were wearing, you know, not a three-piece suit and all the rest of it. And I thought that it was, the whole thing was about them being of a different nationality. I do not know if it was because they were Indian but it was certainly because they appeared, if you like, traditionally dressed. And I said to the guy who was 86

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representing them that, ‘‘You should complain’’, because it was absolutely outrageous. It was horrid, the questions and the responses to the questions. And normally a surety comes and they have got their evidence of their means and so on and so forth. It was regarded with utter disdain that this man had actually got money in the bank. It was just horrible. And the representative said: ‘‘Well, what can I say?’’ because of course the District Judge would say, ‘‘Well of course I am not racist’’. It was horrid and I was embarrassed. This was about four years ago and since then I have to say, things are a bit better, I have not seen anything, but the District Judge is still sitting’. (white female solicitor, 10 years’ experience) ‘There’s definitely a disproportionality in the way they are treated, this is especially so for black men . . . and especially when it comes to bail. I observed a judge laugh at a black defendant whose name was white’. (‘Black Caribbean’ female legal representative, 13 years’ experience) ‘Generally yes: they are treated fairly and with respect . . . But it is not particularly true, however, as regards equal treatment, with the black Jamaican community . . . The roots and community ties are not treated seriously enough. Bail is refused far too often and this is a disturbing fact that has been happening over a long period of time, which some judges are doing nothing about whatsoever. Many are doing their best, but too many people are refused bail . . . If you don’t value the roots, people often get prison sentences on the basis that they haven’t got a chance, that they won’t go straight if they’re left outside. This is a fundamental flaw in the judicial system which particularly hits young black defendants . . . There is a small minority of black muggers, very much a minority, and there is a perception that young black defendants, young black people, are all muggers when they’re not’. Asked to give an example, he said: ‘I won’t say where it was but, about four or five years ago, I was handling a case with an Asian defendant who clearly suffered from paranoia and plainly wasn’t telling the truth but the judge used inappropriate language, describing him as a man of colour, things like that, and it really was highly inappropriate and likely to make the defendant’s paranoia worse. The judge concerned is still sitting’. (white male barrister, 33 years’ experience) ‘You say ‘‘always’’, so the answer would have to be ‘‘No’’. Obviously on numerous occasions they are treated with respect, but there are too many occasions where they are not treated with respect. Part of the problem there, I think, is court officials become a little bit case hardened. They see lots of black people. They get the idea that a lot of black people are committing offences. They therefore take an attitude towards black people and they treat black people poorly . . . If a black person comes up for a street robbery, whether he is guilty or not, there is an assumption that he is guilty. When he is punished the assumption is that blacks are committing these offences, 87

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they must be treated more sternly, and they are treated more sternly than if a white chap commits the same offence. That does happen invariably. Driving while disqualified is another case. An individual who comes up before a District Judge in [this city], if he’s white and a first offence of driving while disqualified, he is unlikely to get custody. If he is black, a serious consideration will be given to custody. He doesn’t always get it but a serious consideration will be given and too often on single offences, and blacks go into prison when they should not, in my view any way . . . I can give you another example with a District Judge I went in front of. The defendant, who had a brother, was in custody on two charges. A very nice clerk, a very friendly clerk, said ‘‘I notice your client has a third charge’’ and I stood up to speak and the District Judge said ‘‘sit down’’. I looked at him and he said ‘‘sit down’’. I looked at him again and I said ‘‘Sir with the greatest respect I expect the usual courtesies and some respect, your learned clerk has made a mistake, the third charge that he refers to is my client’s brother who was in court this morning’’. I said I must have the ability to stand up and correct him, and of course he shut up. Since that time that District Judge has treated me with utter respect. But I had to stand up in an open court just for the right to stand up and speak. You wonder, don’t you, if you’re black. If it was a white advocate, would he have been told to sit down in that fashion? If it was one of the old boys, for example, been around for 30 years, white, big practice, would he have been treated in that way? These things run through your mind’. (‘Caribbean’ male solicitor, 15 years’ experience) ‘Not always but on the whole they are treated fairly and with respect. But they are not treated equally with whites. Two weeks ago, a white defendant appeared in the magistrates’ court charged with possession of cannabis, more than enough to identify the defendant as a supplier, but his ‘‘story’’ that he preferred to buy in bulk because it was cheaper was accepted by the court. If a black defendant appeared in court under similar circumstances they would have been seen as a dealer without question. The court still harbours many prejudices which need to be eradicated in order for the courts to move into the 21st century. This was no isolated incident’. (‘mixed race: white/black Caribbean’ female barrister, nine years’ experience) ‘From my experience I have spoken to people and they have been treated disrespectfully . . . Magistrates assume they are guilty of the offence because of their colour . . . I would say, that in terms of colour, ethnic minorities tend to be treated very badly when they come across an all-white bench and the victim is a white person . . . I had a defendant come before the court for a fines matter. This chap came to court smartly dressed and the clerk who was conducting a means inquiry asked the black male defendant why he hadn’t paid the fines and he gave his reasons and the clerk said to him: ‘‘Is 88

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that a designer shirt you are wearing, designer trousers, what make are they? You have the audacity to come before this court dressed in designer clothes and dripping in jewellery and you can’t pay your fines’’. I honestly believe that if that person was a white and dressed smartly, a white person with a gold chain around their neck, then those questions would not have applied. If you have had a defendant who is Asian or West Indian and it’s an assault matter involving a girl and she comes to court with her parents, brothers and sisters, and it’s the ideal white family, and the defendant comes to court on his own, not smartly dressed, you know too well that person is at a disadvantage because of their colour and the fact that the victim and her family obviously come from a totally different background. You have a defendant that comes from a background that isn’t that attractive, and that person is black or from an ethnic minority, then they are at a disadvantage. It is easier to see it in operation. It is very subtly done. It is not that obvious. Even the defendant does not realise’. (‘Afro-Caribbean’ male solicitor, five years’ experience) ‘No, they get a terrible time, for example stereotyping of young black youth is rife . . . Black youth are treated awfully by staff, judges and barristers. A year ago at this Crown Court the judge intervened during a defendant giving testimony and asked him to speak English properly or else they would get a translator. The defendant was Afro-Caribbean and spoke with an accent. The judge was totally insensitive’. (‘black African’ male barrister, three years’ experience) ‘No, ethnic minorities are not always treated fairly and with respect. There are personal biases which people carry with them and they cannot detach themselves. Ethnic minorities are not always treated the same as a white person would be treated. Colour is the biggest indication. Names don’t have any attachment. Body language is insidious. There are derogatory comments made in relation to clothing and hair. Yes, these things happen frequently, but because they are disturbing and upsetting I try not to keep them in my mind . . . I find the way judges speak on record leans towards the prosecution, especially where the defendant is an ethnic minority person’. Asked whether she felt at a disadvantage as a barrister because of her ethnic background, she said: ‘The legal profession shocked me in relation to prejudice and race. There is no sensitivity to race. I grew up in a mixed, cosmopolitan environment, but I feel that the British legal system actively works against ethnic minorities’. (Asian female barrister, eight years’ experience) ‘You see defendants, if West Indian or Asian, the way they are approached and the way the magistrates speak to them. There is not much respect for them, looking down at them, maybe because they are criminals. But sometimes you feel that they are being penalised for what they are. I had a 89

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case on Friday. I was trying for bail for somebody and the father comes to court. The guy was wearing a shirt and a suit and he was a businessman but some were surprised that he was a businessman. They said ‘‘your father is an intelligent man’’. There was no need to say ‘‘your father is intelligent’’ because they assume that all Pakis are thick. That ‘‘your father is well spoken’’. So what if he is well spoken? If that was an English person, they wouldn’t have said ‘‘your father has come to court today, he is well spoken, your father is intelligent’’. They were assuming that he was going to be thick or not speak English properly’. (‘British Muslim Kashmiri’ male solicitor, seven years’ experience) ‘No, not treated fairly, perhaps with respect, but not fairly. Black people are portrayed as trouble-makers, as people who appear before the court on a regular basis, not in relation to minor offences, but in relation to big matters such as drugs or violence. My opinion is that a black person appearing before the magistrates’ court in this city faces a great disadvantage. Asians are in the same position as black people, especially if an Asian person is represented by an Asian solicitor or counsel in the Crown Court, that person faces a disadvantage’. He could not give an example from the court where he was interviewed, but said that in another magistrates’ court he had heard a District Judge say to an Asian defendant being represented by an Asian solicitor: ‘I don’t believe a word your client is saying. I hear it from you people every day’. (Indian male solicitor, five years’ experience) A few other lawyers drew distinctions between different courts, suggesting that good practice is not evenly spread: ‘Judges in this Crown Court are very careful, but in other courts they do not treat ethnic minorities fairly [he named a District Judge in a magistrates’ court]. You can sense that when there is a black client on a drugs charge his attitude is ‘‘well, what can you expect’’. He also mentioned two other magistrates’ courts: ‘where I would try to get a case involving an ethnic minority defendant to a different stipendiary or lay Bench, because otherwise I know they’re not generally going to be very lenient. Race is vital in the taking of those decisions. They come out with racist sentences a lot’. (‘mixed race: white/black Caribbean’ male barrister, five years’ experience) ‘My general comment would be ‘‘No’’ . . . Generally a lot of ethnic minority defendants are treated badly. I think the judges are rude. There are obviously the exceptions and there are some judges, but very few, who in my view treat defendants in the way that they should be treated. [But others] treat them as if they are guilty. There is just a total lack of respect’. He then gave an example of the behaviour of a District Judge in a 90

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case where he was representing an Asian client at another London court. He described him as ‘a racist shit, a racist bigot who shouldn’t be sitting’. (‘mixed race: white/black African’, male barrister, nine years’ experience)

Conclusion It was notable that a higher proportion of black lawyers (43 per cent) than either white (31 per cent) or Asian (33 per cent) lawyers thought that ethnic minorities were not always treated fairly, equally and with respect by the courts. Furthermore, three out of ten black lawyers said that they themselves had witnessed unfair treatment of ethnic minorities in court, compared with 13 per cent of white and 11 per cent of Asian lawyers. This mirrored the different proportions of black and Asian defendants who perceived their own treatment to have been adversely influenced by racial bias.

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Chapter 8

The judicial and magisterial perspective

So far, this research has shown that there appears to be much less evidence of perceived unfairness and a higher level of confidence among ethnic minority defendants and witnesses than was believed to exist by commentators writing a decade or so ago. There is, of course, no room for complacency, and it is clear that a not insignificant proportion of black offenders as well as black lawyers believe that racial bias still affects the deliberations of the courts. But it cannot be denied that examples of overt racism have been hard to discover, and our interviews with both judges and magistrates suggest that this is probably in no small part due to the efforts made by the Judicial Studies Board and the Court Service to heighten racial awareness and sensitivity to issues of discrimination through the training programmes they have provided. Moreover, we do not believe that the efforts made by the Presiding Judges, the Resident Judges and Ethnic Minority Liaison Judges should be underestimated.

The views of Crown Court judges Attitudes towards ethnic awareness training In 1993 the Ethnic Minorities Advisory Committee of the Judicial Studies Board (EMAC, renamed the Equal Treatment Advisory Committee in 1997) established a course in racial awareness. The ‘anti-discrimination aim’ of this training was ‘to assist all who act in a judicial capacity in courts and tribunals to avoid discriminating, or creating the perception that they are discriminating, on racial grounds against members of ethnic 92

The judicial and magisterial perspective

minorities who appear before them’.153 Attendance was compulsory for

all the full-time and part-time Crown Court judiciary in England and Wales. The training was completed for Crown Court judges in 1996 and was later extended to include District Judges. From the beginning, a strong lead had been given by the Lord Chief Justice, the late Lord Taylor, who had declared: However able, fair-minded and otherwise well equipped a judge may be, he is unlikely to be knowledgeable about the customs, observances, language and sensitivities of the wide range of ethnic and religious minorities now represented in our society. Such knowledge cannot be picked up merely by courtroom experience. It needs to be specifically addressed. Unless it is, there will inevitably be instances of a well meaning judge using words or making assumptions through lack of knowledge which give offence and create an impression that the Courts are being unfair or discriminatory.154 This endorsement was necessary because a few judicial voices had been raised against such training, although mainly from expected directions. The maverick recently retired Circuit Judge James Pickles told The Voice: ‘To take up a judge’s time by requiring him to . . . be lectured to by Black people on how to be a good judge in his own country is not something I approve of’. And the even-longer retired Lord Denning, the distinguished and outspoken former Master of the Rolls, described the proposal for compulsory race awareness training as ‘a waste of time and of money’. He did not believe that ‘judges are racially prejudiced in any way’. For supporters of judicial training, these comments were grist to the mill. The response from Paul Cavadino, the respected spokesman on penal affairs for NACRO, was that both ex-judges were ‘out of touch’ and that such ‘bigoted comments’ with ‘racist overtones’ from a recently retired judge only ‘demonstrated the clear need for racial awareness training’.155 But even some black lawyers were sceptical that much would change as a result of training. The Chair of the Society of Black lawyers, Makbool Javaid, warned that ethnic awareness training might merely ‘mask the real problem of judges who are likely to be racist . . . By just training them all, debate on the issue will disappear 153

First Annual Report of the Ethnic Minorities Advisory Committee, (Judicial Studies Board, 1992), at p.18. 154 See his introduction to Mr Justice Brooke’s 1993 Kapila Lecture. 155 See The Voice, 23 November 1993.

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because the establishment will say: ‘‘We have trained them so that they are racially aware’’ rather than actually trying to change the structure of the judiciary. It is only when we get more Black judges and lawyers that the judiciary can be a more fairer system’.156 Yet, soon after training got under way, Trevor Hall, the experienced African-Caribbean adviser to the Home Office and Vice-Chair of EMAC, observed: ‘We expected resistance but instead found willingness and readiness from the judges to know how they can better help the public’.157 Indeed, after a few years, it was conceded that any early resistance that there might have been from ‘right-wing’ judges had largely been swept away. Thus Peter Herbert, who had taken over as Chair of the Society of Black Lawyers, estimated ‘that maybe [only] one in ten judges thought the training [had been] a waste of time,’158 and NACRO concluded in 1999 that overall the programme was ‘regarded as a success’.159 When we asked the 26 judges in the Crown Court about the value and impact of the specific ethnic awareness training all of them had received, usually between three and eight years ago, 16 of them spoke very positively about it: five of them rating it as ‘very helpful’ and another 11 as ‘helpful’. To some extent, of course, the degree to which it was regarded as helpful depended on the judge’s previous experience of coming into contact with citizens from ethnic minorities. ‘Most who went on the course thought it extremely helpful. Indeed, ‘‘eye-opener’’ is the best word to describe it. Most who took it thought that they would like to repeat it. But it hasn’t been repeated. Those who were sceptical about it, after they had been through the course, became reformed characters so far as training is concerned. If we have any biases buried within us, then at least we are aware of this’. (Circuit Judge) ‘I thought the training was very useful. The great difficulty is that some think that they don’t need any information. However the opposite is true: the more you think you don’t need it, the more you need it . . . I thought the reactions of most of my colleagues to training were very positive’. (Circuit Judge) ‘It was very useful, coming from a background that would abhor anything racial and would assume that wasn’t an issue, to be told that 156

Ibid. See The Voice, 17 November 1992. 158 See The Voice, 21 April 1997. 159 Let’s Get It Right, Race and Justice 2000 (NACRO, 1999), at p. 24. 157

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it was an issue not because you were racist, but because you were in a world that was. This opened my eyes and was an important part of my training. I could easily have overlooked this if I’d just had my background in civil law to rely on’. (Circuit Judge) ‘The significance lies in the fact of attending a meeting, which raises the profile of the issue in terms of its significance and importance . . . By going you treat it as significant’. (Circuit Judge) ‘I would have thought it was fairly helpful. I agreed with everything I was told but being told something one knows already doesn’t mean that it’s not a good thing for you. The problem is that everyone thinks they know it all already, but they probably don’t’. (Recorder) Although all the judges said that they recognised the importance of being aware of racial issues, eight of them had, for various reasons, not found the course they attended very helpful, either because they felt that they already had a good knowledge of the issues or because they disliked the format and organisation of the course, which some characterised as rather ‘artificial’, ‘politically correct’ and even ‘patronising’. ‘I thought it was too politically correct . . . Inevitably it is somewhat artificial. The guests we had were very nice people, but they weren’t the sort of people who would turn up in court. Therefore it was good for middle class relations, but not for understanding defendants or witnesses in the dock . . . I think I get more out of my trips abroad than out of anything else. But as to what could be done to improve ethnic awareness training, I don’t know’. (Circuit Judge) ‘I would much rather sit down and listen to someone say these are the complaints I have. But it has raised the issue in our consciousness and that has helped . . . I always ask myself if I have a defendant ‘‘Will the defendant perceive any racial issue in this case?’’’. (Circuit Judge) ‘It might be extremely useful and indeed crucial to those who don’t have, as I have from working as a criminal barrister for 28 years, a detailed background of working with ethnic minorities. But, in my view, if you need to know these things you shouldn’t be sitting as a judge at all. They are basically things that are good manners. I wasn’t, to be honest, too impressed with the course, but there is useful stuff in there. For example, women who are Muslims and menstruating can’t take the oath . . . It’s a good idea to make us aware but it’s a cumbersome procedure and it is given to some people who don’t need 95

A Fair Hearing?

it. It’s really a matter of class not race. Judges come from a particular social group and this is a problem’. (Recorder) Only two of the 26 – roughly the proportion ‘guessed at’ by Peter Herbert – said that the course had ‘added nothing to their personal or professional experience’. ‘It was bad, badly run. Everyone will say this. Some are against it anyway, but it was badly done. The feeling was that it was done purely for cosmetic reasons. The content was poor and the business of arriving and having dinner with selected representatives from the ethnic community was insulting to them and to us. They were paraded and produced as specimens. It was dreadful really and the assumption was that none of us had ever spoken to anyone who was not white and middle class. I don’t think I got anything out of it. Sitting in a court like this, which is multi-racial one gets attuned to the nuances’. (Circuit Judge) ‘It was ghastly . . . It turned out to be as bad as I had feared. The introduction of ethnic minority guests was a joke . . . It was demeaning, patronising and difficult to talk to them on a one-to-one basis . . . The idea of tossing these people in was flawed . . . They were cast adrift when we had the workshops and discussion, therefore the whole thing was shot through with organisational flaws . . . What we resent about the EMAC course is that we are told by so-called experts things that are not true or are only half true or part true . . . I’ve never spoken to any judge who thinks the EMAC courses are all good. They vary from people like me who think they are about one-third good to those who think they are about 90 per cent bad’. (Circuit Judge)

What had been learned? Many examples could be given of what judges believed had been of value to them, but the most prominent views are aptly summed up in the following quotations: ‘Things like if a defendant is adopting a truculent or aggressive attitude that may be a cultural thing, rather than just being difficult . . . It may be because of how he’s been treated in the past. We are also taught that Afro-Caribbean youths may adopt an aggressive or stroppy stance, and that this may be how they react everywhere. You are not being singled out. Also, Lord Justice Brooke lectured us about naming systems and this was enormously helpful’. (Circuit Judge) 96

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‘I have a deeper understanding about how hurt people can be by being confronted with expressions like ‘‘the black sheep of the family’’. To be aware of that is half the battle’. (Circuit Judge) ‘Simply what it’s like to live in a society where the majority of people are hostile to you. Also, the opposite, where there are some very successful examples of communities which are harmonious rather than antipathetic’. Asked how this translated into the judge’s role, he replied: ‘It makes people aware of the tensions that exist in the community that affect people’s capacity to deal with litigation, be it civil or criminal: generally making people feel comfortable in court – for example eye-contact and oath taking’. (Circuit Judge) ‘I learned particularly that some terms give offence, and what the alternatives to these terms are. There was also training about things like eye contact, which I found useful. I sentenced a young Algerian recently and he didn’t look at me and you might find that disrespectful . . . Without the training I might not have been aware of these things simply because of the circles I move in. In those circles it’s simply not an issue. Also, I became aware of institutional racism. I was assisted to understand that there is, on the one hand, prejudice that is easy to recognise, and then there is something that is deep in the system and not easy to recognise as racism’. (Circuit Judge) ‘It allowed one to put oneself in the position of someone who is an ethnic minority, and the anxiety they feel, and the difficulties they face, which judges don’t have time to think about . . . One is conscious of an ethnic dimension in court, perhaps more than one was before going on a course like that’. (Circuit Judge) ‘What came out was the cultural differences between people . . . The point was made that young black people will give you the impression of being surly. There were certain things that I wouldn’t otherwise have known. For example, they won’t look you in the eye, whereas that is, for them, being deferential’. (Circuit Judge) ‘I can’t think of anything I learnt. But it did force me to think of my views and why I held them. We had a frank exercise, discussing what prejudices we had and how we felt about them and I thought it was a fairly useful exercise . . . The net effect was that if you are male and Anglo-Saxon there are a lot of things you aren’t aware of and it made me think about this. It didn’t really teach me anything I didn’t already know, but it made me more vigilant’. (Circuit Judge) ‘It made me more aware of looking at things from a defendant’s point of view which is not something one would particularly do if the defendant was from a white Anglo-Saxon background’. (Circuit Judge) 97

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‘I learnt things that made me alert to how people are feeling and how those feelings may be hurt. For example, asking people what their Christian name is. I also learned about modes of address and that Muslim women wouldn’t take the oath if they were having their period. Therefore these things were helpful’. (Circuit Judge)

Sensitivity to ethnic cultures? There were very few judges who did not subscribe to the view that, in dealing with minority ethnic defendants, they needed to be sensitive to their background and culture. In particular, they were especially aware of the need to take into account differences in vocabulary and culture: ‘One should choose one’s words carefully and not be condescending’; ‘You should show you are listening and taking things on board’; ‘You should try to see things through their eyes’; ‘You need to be aware of how people can be hurt by racist remarks, such as ‘‘black sheep of the family’’ ’. There were only eight who took a different view, and this was based on the stance that all should be treated equally irrespective of race or ethnic origin, or that if one took race into account there was a danger that offenders from ethnic minorities might be disadvantaged. The question this raises, of course, is whether it is possible to treat ethnic minorities fairly if one doesn’t take their culture into account. This is discussed further in Chapter 11.

The views of magistrates The impact of ethnic awareness training Two-thirds of magistrates (84/125) said they had received some training in ethnic awareness, both as part of the more general training that all magistrates undertake from time to time and through the Equal Training Advisory Committee’s Training Pack for Magistrates in Equal Treatment, now the Justices’ Clerks’ Society’s Fair Treatment Training Pack. Some of those who said that they had not received any specific training relating to their judicial function, nevertheless had extensive experience of working with ethnic minorities or had been trained as part of their employment. Of those who had been trained, about three-quarters (77 per cent) said that they had found it ‘very helpful’ or ‘helpful’. Most of the others saw some merits in it. Indeed, only three magistrates said categorically that it had been ‘unhelpful’ (two of them being Asian magistrates). Those white magistrates who found the training helpful mentioned that they had been made more aware of cultural diversity, especially in 98

The judicial and magisterial perspective

styles of non-verbal and verbal communication, including dress, which could have otherwise been misinterpreted as lack of respect for the court: ‘I learned different body language: for example eye contact. I became aware of dress codes, in particular headwear . . . verbal interaction, they showed a video of two Afro-Caribbean people speaking in an everyday manner. Their verbal speech is often more aggressive and we were taught not to read too much into that, because it is part of their culture. We were taught how you should not make assumptions’. (white female, 26 years on Bench) ‘That we should assimilate new ideas and understand cultural differences. I am more knowledgeable about various cultural backgrounds, family lives . . . although it has not changed my judicial thinking, I have an understanding of how ethnic minorities perceive the system. I ensure that they fully understand the process of the court’. (white male, 23 years on Bench) ‘Cultural issues – such as Caribbeans looking you firmly in the eye is a sign of defiance. Also body language . . . not good manners to talk amongst ourselves in front of Afro-Caribbeans, that’s a sign of mistrust’. (white male, seven years on Bench) ‘It made us more particular not to be offensive to ethnic minorities . . . I accept people’s traditions now. For example, Rastafarians keeping their hat on when in court’. (white female, two years on Bench) Other white magistrates dwelt on more practical matters, such as naming systems, religious practices, especially in relation to taking of oaths: ‘I learned about naming – how different ethnic groups have a different order of names’ (white female, 10 years on Bench); ‘I learned the different beliefs of other people and how to value these beliefs, for example Muslims taking oaths after washing their hands’ (white female, five years on Bench). And yet others just felt that they needed to take more care in interpreting the behaviour and responses of ethnic minority defendants in order to avoid stereotyping: ‘You can easily stereotype and have prejudices, but the training and leadership I had to undertake has made me check my thoughts. It makes me more aware of the differences of cultures and the standards expected by certain ethnic groups’ (white male, 23 years on Bench); ‘Not stereotyping, for example West Indians who wear gold – don’t think of them as rich now because they wear gold, because everyone does in that community (they are given gold jewellery)’ (white female, 23 years on Bench). Some stressed the need to think carefully about what they said to minority ethnic defendants in order to avoid any misunderstanding that could be interpreted as bias or give offence: ‘More towards not saying things that could be misinterpreted’ (white male, four years on Bench); ‘I don’t have biased views to defendants 99

A Fair Hearing?

because of their colour or race. I was made more aware of ethnic backgrounds and was more careful in sentencing’ (Greek-Cypriot male, 14 years on Bench).160 Several ethnic minority magistrates who had found ethnic awareness training to be ‘helpful’ mentioned that they had been sensitised to issues which could be out of place in a court of law: ‘When you’ve been on the wrong end of abuse, you know it already. But I learned the technical jargon and the politically correct way of expressing it’ (African-Caribbean male, two years on Bench); ‘I realised that a comment that I have frequently heard in my personal life could be regarded as derogatory if mentioned in court’ (Asian female, two years on Bench). Among those magistrates (minority ethnic and white) who thought that the training was ‘unhelpful’ were some who were critical of the content and manner of delivery of the courses, rather than being opposed to the idea of training as such: ‘I do not think the right people were doing it . . . Magistrates would like to be trained more thoroughly by people who come from ethnic minorities’ (white male, nine years on Bench); ‘Training is stereotyped. I could have done it better than a British white person. The people who gave the training were not well trained themselves’ (‘Black British Caribbean’ male, nine years on Bench); ‘I found the training insulting. The level was superficial, but it’s a very important area for magistrates. Overall, the training was poor because it was not done by people who are familiar with the magistrates’ court’ (white female, 10 years on Bench). Only a few were opposed to such training as a matter of principle, but they did include some from minority ethnic backgrounds: ‘There is no need for ethnic awareness training as the law is the same for everyone, British and ethnic minorities’ (white female, 27 years on Bench); ‘Patronising, you don’t have to be told that you have to treat people with respect. You already know that . . . I find it irritating that people who are giving the training have preconceptions about us – magistrates, white, middle-class – we must be prejudiced’ (‘Anglo-Irish’ female, 19 years on Bench); ‘I believe it did not help. It only helps those who are prejudiced to determine what the loopholes are, so they can avoid being seen to be prejudiced’ (Pakistani male, 11 years on Bench).

The relevance of ethnicity Altogether, three-quarters of magistrates (76 per cent) believed that ethnic minorities presented particular problems, or that different ethnic groups presented different kinds of problems, to which the court had to respond. 160

See also Julie Vennard, Gwynn Davis, John Baldwin and Julia Pearce, Ethnic Minority Magistrates’ Experiences of the Role of the Court Environment, DCA Research Series 3/04 (Department for Constitutional Affairs, 2004), at pp. 74–76.

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‘Their perception of authority can cause problems. Also their view of the police. Also they are hostile because they think they are being tried by white judges who don’t understand their situation’. (white female District Judge) ‘There is a differential in sentencing. Ethnic groups receive harsher sentences. There is a need for the ushers to be trained in ethnic awareness in relation to the swearing in of defendants and witnesses, especially in dealing with black members of the community’. (Pakistani male, 10 years on Bench) ‘Stereotyping goes on. Some magistrates do make assumptions about people before them’. (African-Caribbean male, 10 years on Bench) ‘Understanding court procedure – but some West Indians pretend not to understand even when they do and try to use ‘‘not understanding anything’’ as an excuse. But Somalis and Nigerians do not seem to understand court procedure’. (‘Black British Caribbean’ male, nine years on Bench) However, not everyone agreed with the proposition that it was necessary to be ‘particularly sensitive to the fact that the defendant before you is from an ethnic minority’. Fifty-eight per cent said ‘Yes’, but as many as 42 per cent said ‘No’. It is important to note that, yet again, a considerably higher proportion of ethnic minority magistrates (71 per cent) than white magistrates (53 per cent) responded in the affirmative.161 And, although the numbers at each court were small, it was noticeable that a higher proportion of magistrates at Manchester (67 per cent) said ‘Yes’, than at Birmingham (58 per cent) and London (47 per cent). This reflected the fact that a higher proportion of those interviewed at Manchester were from ethnic minorities. It should also be recalled (see page 68 above) that a significantly lower proportion of minority ethnic defendants at Manchester said that, in their view, they had been unfairly treated in court because of racial bias. The evidence, based on such small numbers, cannot of course be regarded as conclusive. But it is worth considering whether there might be a connection between the recognition that a magistrate should be especially sensitive to racial issues and the way in which defendants perceive their treatment. Some of those who thought that special sensitivity was required emphasised the need to assure ethnic minorities that there was fair treatment and to strive to overcome negative perceptions: 161

Fifty-three per cent of the white magistrates said ‘Yes’ compared with 77 per cent of the Asian magistrates (10/13) and 67 per cent of the African-Caribbean and African magistrates (12/18) and, altogether, 71 per cent of the ethnic minority magistrates (24/34):
2:3.187, 1df, p:0.074.

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‘A lot of people are nervous because they think the system is against them, for example their police experience . . . [We must] make sure that they understand that what happens has nothing to do with race’. (white male District Judge) ‘[T]he general perception is that defendants believe that they will not be treated fairly. We have to make them feel safe and secure and confident in the courts’. (‘Black African’ male, two years on Bench) ‘[Y]ou have to make the defendant aware that you are aware that they are from an ethnic minority and that you understand their culture and that you will give them a fair hearing just as everybody else . . . But on some occasions some people play the race card. What I then do is tell them that whatever they have done I will not be judging them because of their race’. (white male, eight years on Bench) Others took a more practical line, emphasising such issues as language, oath taking and communication: ‘[I]n the way people express themselves you might have to take into account that they are from different backgrounds’. (white male District Judge) ‘You have to be sensitive that the defendant is well represented so that he understands what is going on in the courtroom. But other than that I treat everybody the same’. (white male, 14 years on Bench) ‘One has to inform oneself about defendants because sometimes their lawyers have not seen them. There could be language problems, etc’. (white female District Judge) ‘Only if there is a language problem. It’s difficult to balance this, or giving other help, with treating defendants in the same way’. (African-Caribbean female, one year on Bench) ‘It should be taken into account – religious behaviour, for example oath taking – but not in judgments’. (Pakistani male, one year on Bench) But others believed that a broader sensitivity to cultural style was required: ‘It’s important to be aware that there are differences and it’s important to take this into account. Certain offence may be taken if you say certain things’. (white female, nine years on Bench) ‘[T]here are cultural differences and you have to understand those differences to treat them equally, for example when hitting a woman’. (white male, six years on Bench) 102

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‘You have to be sensitive to their cultural background. For example, Rastafarians being allowed to wear hats’. (white male District Judge) ‘It’s very easy to stereotype Asians or Afro-Caribbeans, also Romanians, North Africans and Arabs. You must be sensitive to whether the defendant is from an ethnic or socio-economic minority, to put them on an equal playing field’. (white male, five years on Bench) ‘Culture is relevant in some cases to understand why a defendant committed an act. Placing a defendant in a context or background would help me to understand their behaviour’. (‘Barbadian Caribbean’ male, 16 years on Bench) ‘One should be careful to look at the background, especially of young people who might have been under achievers. But this could be because they came from broken homes – this needs to be looked at’. (Indian male, nine years on the Bench) ‘It is important. If the defendant is culturally sensitive there are some mannerisms which need to be considered’. (African female, four years on Bench) However, 42 per cent of magistrates felt strongly that considerations of ethnicity, beyond the need to deal with each case on its merits, should not be allowed to undermine the principle of ‘equal treatment’: it was the ‘facts of the case’ that mattered. The following extracts, from both white and ethnic minority magistrates, capture the views they expressed: ‘It does not really matter who it is before me, they are treated equally. I try not to be oversensitive because it should not make a difference to the actual offence committed’. (white male, 23 years on Bench) ‘They’ve either committed a crime or they haven’t’. (white male, 16 years on Bench) ‘They should be treated exactly the same as everyone else: that is fairly’. (white male, nine years on Bench) ‘All people are equal before the law and in sentencing all mitigating factors are taken into account’. (white male, 16 years on Bench) ‘Ultimately they are all criminals and they have flouted the law and they deserve to be treated on a level playing field’. (white female, six years on Bench) ‘It’s important for people to understand the law of the land, it differs from country to country and they have to accept it as part of life even if such 103

A Fair Hearing?

concepts are unfamiliar to a particular defendant’. (white male, nine years on Bench) ‘I treat defendants equally . . . I don’t look at a person’s colour or religion or ethnicity. I just concentrate on the facts of the case and listen to what the witnesses have to say’. (white male, 18 months on the Bench) ‘A defendant is there on the basis of having broken the law. It has nothing to do with race’. (African male, 15 years on Bench) ‘Someone who commits an offence should get the same treatment as they would wherever they come from. There is no need to be particularly sensitive just to ethnic minorities’. (‘Black British Caribbean’ male, nine years on Bench) ‘A defendant is a defendant no matter what, regardless of age, gender or colour. They are all treated the same. The offence is the issue not their colour. If you start seeing their colour you should not be a magistrate’. (Indian male, seven years on Bench) Again, this raises the issue of whether it is possible in practice to deal equally with defendants ‘as defendants’ irrespective of considerations of their culture and background. It is clearly a matter on which magistrates are deeply divided, both those who were white and those who were from ethnic minorities.

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Chapter 9

The experiences of witnesses

Interviews were carried out with 150 witnesses: 93 in the Crown Court and 57 in the magistrates’ courts. Half of them were aged 30 or under and 73 per cent were from ethnic minorities. Three-quarters were witnesses for the prosecution.162 From 141 of these witnesses we

obtained information about how satisfied they were with the behaviour of the lawyers representing the prosecution and defence. Only eight per cent said they were ‘dissatisfied’ (10/141) or ‘very dissatisfied’ (1/141) with the lawyer acting for their own side. But 35 per cent were ‘dissatisfied’ (37/141) or ‘very dissatisfied’ (13/141) with the lawyer acting for the other side. Nearly two-thirds (63 per cent) said that they had made contact with the witness service and 98 per cent of them expressed themselves as satisfied with it. Most – 84 per cent – found the language used in court to be clear (90 per cent of white, 81 per cent of black and 83 per cent of Asian witnesses). But, even so, there was a sizeable minority (19 per cent and 17 per cent respectively) of black and Asian witnesses who had difficulty understanding the ‘legal jargon’ used and a few simply found it difficult to hear softly spoken statements. Like the defendants, the witnesses were invited to ‘think back over the whole process in relation to this case, from the first time you came into court until now’. They were then asked: ‘Has anything happened that has made you feel that you have been treated in a way that was unfair, was biased, or which showed you lack of respect’. If they said ‘No’, they were asked whether this meant that they believed that they 162

Seventy-eight per cent of the white, 66 per cent of the black and 83 per cent of the Asian witnesses interviewed had appeared for the prosecution.

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had been ‘treated fairly and in an unbiased way, and shown due respect throughout the case as far as the court is concerned?’ In the Crown Court, 13 of the 93 witnesses (14 per cent) said that they had experienced unfair treatment in court, either because they felt vulnerable, resented the delays or short notice, or did not like the cross-examination by the defence advocate: four of 25 white (16 per cent), one of 21 black (five per cent) and eight of 44 Asian (18 per cent) witnesses. Only one, an Asian witness, complained that his concerns as a witness had not been taken into account and that the defendant had been treated better than he and the other witnesses had been treated. When the nine ethnic minority witnesses who said that they had been treated unfairly were asked whether this had had ‘anything to do with the fact that they were from an ethnic minority’, none said ‘Yes’. Thus, of the total of 65 ethnic minority witnesses interviewed in the Crown Court, none felt that they had been unfairly treated because of their ethnicity. In the magistrates’ courts, 16 of the 57 witnesses (a fifth of white and Asian witnesses but 45 per cent of black witnesses) voiced various concerns: about having been forced to appear in court and the inconvenience this had caused; about having to wait, often for a long time, to give evidence; about feeling intimidated and unprotected, particularly that they had not been adequately separated from the defendant; and about the way that they had been questioned by the lawyers in court. However, only three of the 41 ethnic minority witnesses interviewed in the magistrates’ courts (seven per cent: all black), said that they thought that the way they had been treated was due to their ethnicity. ( One found her cross-examination by an Irish lawyer, who pretended not to understand her West Indian accent, racially demeaning. ( Another thought that, while she was waiting to give evidence, the court staff had looked at her ‘as if [she] were a criminal’ but did not look in the same way at a white, casually dressed witness who was waiting near her. ( The third felt that the court had failed to give him and his Asian friends an adequate explanation of what to expect and that this was because of his ethnicity. He based his view on the fact that ‘the only person to speak to me was an Asian girl. No one else made contact’. However, it is significant that none of the witnesses – whether black, Asian or white – in the Crown Court or the magistrates’ courts complained of ill treatment by the judge or magistrates, and a large 106

The experiences of witnesses

majority of them were ‘satisfied’ (and half ‘very satisfied’) with their treatment, despite the fact that nearly four out of ten said that they had been reluctant to come to court. About a quarter of the witnesses (27 per cent) said the experience had been better than they had expected, and a higher proportion of black (26 per cent) and Asian (33 per cent) witnesses said this than did white witnesses (19 per cent). Eighteen per cent said that it had been worse than they had expected and there were no significant ethnic differences among those who responded in this way: 19 per cent of white, 21 per cent of black and 15 per cent of Asian witnesses. A lower proportion of black (47 per cent) than either Asian (65 per cent) or white witnesses (64 per cent) said that, prior to the current hearing, they had had either ‘complete confidence’ or ‘a lot of confidence’ in the court. But, after their experience in the current case, a higher proportion of black and Asian witnesses (37 and 52 per cent) than white witnesses (17 per cent) moved from having ‘no or not much confidence’ to being ‘confident’. The difference between the proportions of black (56 per cent) and white (58 per cent) witnesses who said they had either ‘complete confidence’ or ‘a lot of confidence’ in the court after the current case was negligible; and Asian witnesses (69 per cent) remained most confident of all.163

163

Overall, 60 per cent of witnesses said that prior to the current experience they had either ‘complete confidence’ or ‘a lot of confidence’; whereas after the current experience 63 per cent said this.

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Chapter 10

A ‘cultural change’?

To what extent was there evidence that the attempt to make judges, magistrates and lawyers more aware of and sensitive to issues of ethnicity, combined with the increasing and widespread condemnation of racial prejudice and discrimination in all areas of public life, had had an impact on the treatment of ethnic minorities in the criminal courts?

A judicial perspective All the Resident Judges and all the Ethnic Minority Liaison Judges expressed themselves strongly in support of the view that any kind of unequal treatment of ethnic minorities in the criminal courts cannot be tolerated and they recognised that it was important to communicate this to ethnic minority defendants by avoiding any conduct or language which could, even unintentionally, convey the opposite impression. Half of the judges (13/26) said specifically that the training they had received had changed the way they approached cases involving ethnic minorities in court. Some mentioned that it had made them more cautious; others that it had forced them to examine and become more aware of their own prejudices: ‘I am more conscious that I have to be careful and it’s tremendously important to make people feel at ease and to keep tensions low. We need to reassure people that they will be treated on an equal basis. So far as one can, I try to take things slowly, especially if there’s a communication problem. Other than that I try to adopt a fairly measured approach to witnesses and to defendants’. 108

A ‘cultural change’?

‘I think more all the time. I don’t behave any differently to white or black people in the dock. I hope to see the real person underneath. But guardedness is perhaps the word to use’. ‘By being aware of one’s inherent attitudes. You must be aware of them. It is just too bland to say ‘‘I’m not prejudiced, I’m perfectly alright’’. We all have our own prejudices and I have. We know in this city that we have particular problems with particular offences and in my view judges must be aware that what they say and do must be judged in the light that it is not discriminatory. The object is to get the person in the dock, whoever he is, to feel that you understand them. There’s no point in being pompous and getting on your high horse’. Those who said it had not changed the way they behaved emphasised that they believed that they had already been acting sensitively to ethnic minorities: ‘I don’t think it has changed the way I deal with them, but I’ve looked for signs that someone isn’t feeling that they have been treated properly. I’ve only once been accused in my 14 years on the Bench of racial prejudice and that was by an Italian, and he was a difficult man’. ‘I’ve had such a lot to do with them because of travel and they have always been part and parcel of my life, both professional and social . . . We all have prejudices; however we hope we can sublimate them so they don’t manifest themselves’. ‘I would be very disappointed if objectively it has, as I like to think I would have behaved like that anyway’. ‘I don’t think it did . . . I’m a hack criminal defence lawyer . . . For the first 10 years of my job I defended from Brixton or Camberwell and 80 per cent or so were black . . . If I came from a Chancery background it would have pulled me up short’. ‘I don’t think it did anything for me, in the sense that it didn’t persuade me to act any differently or persuade me of the need to act differently in treating people properly which is something I always try to do. Experience is probably a better teacher than anything one can learn in a day’s training and I can’t say anything added to Lord Justice Brooke’s Bench Book, which was circulated before I did the training. The main source is experience. People come into the witness box and say things which give you an insight’. ‘It didn’t change how I dealt with ethnic minorities when sitting on the Bench or indeed in any other way. I felt I was already doing these things, otherwise I would have learned something. For example, there was a case in the papers last week [about a judge who asked a black man to take off his hat in court] 109

A Fair Hearing?

. . . One just wouldn’t do that. It’s not worth the candle. You always bend over backwards if it’s a Rastafarian’. Several of the younger judges suggested that attitudes among judges had changed markedly in recent years, in part due to the fact that they and their families, unlike many of their predecessors, had grown up in a multi-cultural society where they had professionally and personally come into frequent contact with ethnic minorities. The old type of judge, ‘the dinosaur’, was, they said, a ‘dying species’; ‘judicial bullies’ were no longer there. As one judge put it: ‘I go back to 1956 and I remember the bad old days. I remember one judge who had called someone a ‘‘black animal’’’. When asked whether they had noticed any change in the language used by judges and lawyers in the robing rooms or at lunch, all said that racial jokes and comments had become a thing of the past and would be heavily frowned upon now. ‘There’s no question about it. Not in terms of what goes on in court but in terms of what is said in social or quasi-social situations, like the robing room. I’d be very surprised to hear a joke based on race now . . . One would not get the sort of joke that one would from time to time have heard cracked in the past. There’s been a real change. I think it’s education’. ‘You don’t hear racist jokes now. I haven’t heard a racist joke at a dinner party and you don’t get this in the robing room’. ‘The penny has dropped that it is a really important aspect of our work. You used to get people who thought it was a charade, and thought that they knew better. That has gone. You might have heard racist tainted jokes in the past but you don’t hear them now’. ‘I think these days that many judges see a defendant and he doesn’t strike them as being a ‘‘black’’ or ‘‘Asian’’ defendant. We don’t see things now from a colour perspective. I think things have changed over 15 years. People are much more sensible and cautious now, even in a clumsy jocular way, of saying things that are inappropriate . . . One good effect perhaps of the ethnic awareness courses is that you stop yourself where people might have expressed themselves in an inappropriate way in the past’. ‘When I started at the Bar there were jokes about black people in the robing room . . . It changed sometime in the 1980s I would say . . . I remember the first black barrister who would hold forth in a slightly self-derogating way, not just on his own behalf but against other black people. He was the first to criticise them. That has long since gone. But that was how he felt he needed to behave then. It’s the contact that’s the key’. 110

A ‘cultural change’?

‘I suspect that judges who don’t do everything they can are a lost cause and a dying species . . . Ethnic awareness is getting through and even unreconstructed judges behave in court much better than they behave in the world outside’. When asked whether they had ever had to rebuke counsel or any other party for any racially inappropriate remarks to an ethnic minority person, only one – a recently appointed judge – said that he had to do this ‘often’: ‘If counsel says ‘‘coloured’’ instead of black, or ‘‘half-caste’’ not mixed race, then I would cut straight in. When I first started there was a police officer who was constantly saying ‘‘half-caste’’. I waited until everybody had gone before telling him. Now I go straight in. I will do it with anyone . . . I might have to rebuke counsel every three weeks or so’. Several other judges mentioned that they had to rebuke counsel occasionally, mainly for using the term ‘half-caste’. But the majority said that this was now very rare indeed and that they therefore never had to rebuke counsel for anything that might be regarded as racist. It was recognised by some of the younger judges that there is still some way to go before all judges are sufficiently imbued with an anti-racism philosophy, but certainly they noted that overt racist statements had become largely a thing of the past: ‘My generation of judges is pretty good [said a judge in his early 50s]. We are pretty right on about race issues. But some dinosaurs are still there. They pay lip service but they don’t take race issues seriously and they’re not so sensitive to them. There is nothing we can do about this until they go. But I don’t see headlines now about judges saying ‘‘niggers in the woodpile’’. Therefore things are better’.

Magisterial perceptions About four out of ten (42 per cent) of the magistrates who found the ethnic awareness training ‘helpful’ said that it had changed the way they dealt with ethnic minorities in court, and a much higher proportion of the white magistrates who had received the training (61 per cent) than those who had not (35 per cent) said that they were aware that different ethnic groups might pose different kinds of problems for the magistracy: a difference that was statistically significant.164 Thus, about a quarter (28 164


2:4.816, 1df, p:0.028.

111

A Fair Hearing?

per cent) of all magistrates interviewed said that their approach towards cases involving ethnic minorities had been influenced by the ethnic awareness training they had received. From the evidence gathered from the magistrates, it was clear that some inappropriate racist behaviour in court by their fellow magistrates had been observed from time to time, and this may be a reflection of the fact that magistrates have not had the intensive training in racial awareness that has been made available to the judges, nor are they subject to the same degree of press interest. And, in any case, all but the District Judges are part-timers. Thus, when the magistrates were asked whether they had ever heard anyone in court make a racially inappropriate remark to a person from an ethnic minority, more than a quarter (27 per cent) said ‘Yes’: a quarter of white and a third of ethnic minority magistrates. Examples of racially inappropriate remarks from magistrates were: ‘I have never heard an outright racial remark but offensive remarks were made about a Rastafarian defendant who was told to remove his hat. This was two or three years ago. But he did keep his hat on’. (white female, 10 years on Bench) ‘A presiding justice made a remark in open court about ‘‘cosmetically challenged people coming into court’’. He assumed that ethnic minorities have a bad attitude’. (white male, nine years on Bench) ‘It was a complicated and difficult case and the term ‘‘nigger in the woodpile’’ was used by another member of the Bench. I said that this was an offensive remark and the Chairman apologised to me and the other ethnic minority magistrate on the Bench’. (white male, six years on Bench) ‘‘‘In this country we do not behave like that’’ – a magistrate. ‘‘Take that hat off’’ – an usher’. (white male, 22 years on Bench) ‘I have heard a magistrate say ‘‘Here come the criminals’’ – remarks of that nature directed to black people’. (black male, 17 years on Bench) ‘I have heard my colleagues say ‘‘these people’’ in relation to ethnic minority witnesses. In the case of a robbery of an Asian female by a black person I heard a magistrate comment in open court that the poor lady must have been very frightened by the sight of a black man. I thought that this was an inappropriate remark to make’. (‘Barbadian Caribbean’ male, 16 years on Bench) ‘A Chairman once said, ‘‘that person needs an interpreter’’ without knowing about that person, and that for me was a racist remark’. (African-Caribbean female, nine years on Bench) 112

A ‘cultural change’?

‘The [other] magistrates felt that the Asian defendant was ‘‘shifty’’ because he didn’t make eye contact and this was a sign of guilt, but actually it’s a cultural symbol of respect in Asian cultures’. (‘black South American’ male, nine years’ on Bench) ‘Yes, almost on a daily basis: it may be subliminal or deliberate’. (Pakistani male, eight years on Bench) There were, however, very few reports of lawyers using ‘racist’ language in court and, when this did happen, it was claimed that action was swiftly taken to draw it to their attention: ‘A defence solicitor referred to a West Indian in a very derogatory way. He was asked to come back to court to apologise’. (white male, five years on Bench) ‘A black defendant was called ‘‘coloured’’ on more than one occasion by a prosecutor and the clerk’. (white male, 22 years on Bench) ‘A prosecutor used the inappropriate word ‘‘coloured’’ and was asked to change that by everyone in court. A clerk described someone as a ‘‘chink’’, as the defendant was leaving court – and no longer works in court’. (‘African-Caribbean’ female, one year on Bench) Several of the magistrates who gave examples of behaviour that they had found disturbing added that they were confident that it would no longer happen or would not be tolerated if it did: ‘A long time ago, a Chairman was talking to a Nigerian defendant. There was an adjournment and he told the defendant to be back at a certain time, but he added ‘‘That’s not Nigerian time’’ and he then went on to explain what he thought of Nigerian time. Also, in the retiring room, I’ve heard comments about an Asian defendant: ‘‘those people always lie’’. Racial awareness was not as strong then. Now no-one would say anything inappropriate’. (white female, 18 years on Bench) ‘Five years ago a magistrate said in court: ‘‘All Pakistani defendants are the same, they have the same story, the same defence’’. But such attitudes have steadily decreased’. (white male, eight years on Bench) ‘One of the magistrates who was not fond of Asian people said before the court proceedings: ‘‘Guilty as hell’’. But this is not overt now’. (white male, 29 years on Bench) 113

A Fair Hearing?

Experiences of advocates The same kind of evidence emerged from the interviews with solicitors and barristers. Even those who pointed to examples of racial bias or inappropriate language in court often said that what they had observed was becoming ‘a thing of the past’. Because of their significance, we have quoted their comments in some detail: ‘They certainly are now. Going back 25 years I would have to say ‘‘No’’ . . . I think the message that is being put across is that magistrates, court staff and District Judges must positively discriminate in favour of ethnic minorities. It is true, I think, in this area, being a multicultural society’. Asked whether he had ever witnessed any unfair treatment of an ethnic minority person, he said: ‘Years and years and years and years ago, 15 years plus, in Walsall. I think an Afro-Caribbean was referred to by someone as a ‘‘coon’’, by a court usher I think. It was a long, long time ago’. (white male solicitor, 23 years’ experience) ‘Nothing immediately springs to mind . . . I’ve been working in [this city] since 1971 and I’ve been in the courts since 1979 as a solicitor. I am one of the ‘‘old school’’. I was in the main area of the court the other day and looking around all the different solicitors and I was the only white defence solicitor there. It just struck me how things have changed over the years. When I first started there was none’. (white solicitor, 23 years’ experience) ‘It’s a lot better than it has been. It all depends on the personality of the clerk and of the magistrates and to a certain extent the solicitor representing them and the prosecution as well. But, overall, I would say that they do get a fair hearing’. (white male solicitor, 14 years’ experience) ‘I think that it’s getting better. I think that there is more balance now than there was, certainly when I started, and I think that there is more respect now, but I don’t think that that’s the way it’s always been’. (white male solicitor, 13 years’ experience) ‘I don’t think there are many old-fashioned judges left and by old-fashioned I mean Rumpole-style characters. And in the main they are judges who have both common sense and intelligence, so in terms of confidence in their abilities I’d probably be confident of about 80 to 90 per cent of judges I appear in front of’. (white barrister, four years’ experience) ‘The example I gave you, when the judge said to this defendant ‘‘the condition of your probation order is to go and learn English’’. And, ‘‘in this country, this is how we do things’’. That sort of observation is 114

A ‘cultural change’?

unhelpful, and that happens . . . Another example is a chap saying ‘‘er, he looks like a gorilla’’ . . . I mean, I asked loudly to the solicitor, ‘‘what did he say?’’ and the solicitor said ‘‘Oh well, the observation was politically incorrect’’. . . . There’s another judge who described looking at a photograph of a black woman coming down the stairs when she had been burgled and said what he can see in the photograph is a sort of fuzzy mushroom: the indecency of the most unfortunate kind. But those are exceptions. The general approach, I think I can say with confidence, of the courts has changed and is changing. . . . The courts, everyone, are at a crossroads at the moment. [It’s] exciting times for the legal profession. I believe we are learning about each other, whilst at the same time learning about the legal profession, a lot more than we did in the past. We’re regarding it much more now as a profession which deals with human beings, human issues, rather than a profession which deals only with establishing guilt and walks away. . . . We will only improve as we go along . . . I don’t think there’ll be any setbacks now, any real setbacks . . . Today things have changed, are changing. The courts tend to listen. You tend to be allowed to present your case professionally . . . In the past I never regarded it as a disadvantage . . . The reason being things were changing then and, as things change, you got a brighter light and became more focused than you are at present. At present, you’re expected to behave as the next barrister. Those days you were expected not to behave as well, and when you did the judge not only became surprised but he tended in his actions, his behaviour . . . to put that across to the jury. But in the present day with the coming of the new approach, the new charter, the new chapter, it is a new beginning and everyone is starting from a level playing field. That is my experience so far as a very experienced, senior counsel’. (‘Black Caribbean’ barrister, 23 years’ experience) ‘I think over the years I’ve seen a great improvement. I think the magistrates are now multi-cultural . . . I think ethnic minorities are treated quite fairly now. I can’t say they’re treated differently. I’ve not seen anything myself’. (‘Caribbean’ female legal executive, 10 years’ experience) ‘No, not all always treated equally and with respect. But this is better than some other courts. You have a fairer trial in this city, you see more black people on the Bench. Four years ago while training, the magistrates would not accept an Asian’s alibi, which I think was unfair. But I don’t think it would happen now’. (Pakistani female solicitor, three years’ experience) ‘I think if you had done your research about five years ago most of my answers would have been different. But things have improved immensely. Particularly with the judges. Judges are so careful these days to be fair, 115

A Fair Hearing?

proper and courteous. I can remember judges who were complete bastards and some of them defended on their skin colour. If you were completely white they were just bastards. If you were completely black they were triple bastards . . . I was told, but I am not sure, that judges actually get special training these days, not only how to behave themselves but also how to recognise that people are from different ethnic backgrounds and have different mannerisms, so therefore don’t assume that he is lying because he has got a different mannerism to what he’s used to and consider very carefully why he might be behaving the way he is. Whereas five, 10, certainly 10 years ago, when in effect there may have been a perfectly valid and proper reason why he was behaving that way’. (Indian solicitor, 20 years’ experience) Nevertheless, these quotations should not be taken to signify that all ethnic minority solicitors and barristers believed that racial prejudice had been eliminated from the courts and judicial system. Indeed, four out of ten said that they felt themselves to be at a disadvantage professionally because of their ethnic background: 11 of the 20 African-Caribbean lawyers and 8 of the 26 Asian lawyers.

Conclusion All this evidence suggests that the lower than expected proportion of defendants from ethnic minorities who said they had been treated in a racially biased way by the courts may well be a reflection of the success of the initiative, begun in the early 1990s, to make judges and magistrates more ethnically aware and conscious of the dangers of misperception and prejudice when dealing with defendants and witnesses from ethnic minorities in the criminal courts. The participants themselves perceived a ‘cultural shift’ that is to be welcomed. But there can be no doubt that more still needs to be done.

116

Chapter 11

What still needs to be done?

What then, must we do in order to try to ensure that the criminal justice system not only provides an effective service for all British citizens regardless of race, colour or ethnic origins but, just as importantly, is felt by them to do so?165

In this chapter we explore the ideas that we were able to elicit from our respondents – defendants, witnesses, court staff, lawyers, judges and magistrates – as to what, in their view, might be done to increase the confidence of ethnic minorities in the criminal courts.

Defendants’ views All defendants were asked whether they thought that anything could be done to increase the confidence of ethnic minorities in the criminal courts. More than half in both the Crown Court and the magistrates’ courts said ‘Yes’, and it was hardly surprising that a significantly higher proportion of ethnic minority defendants said so than white defendants.166 What stands out from Tables 11.1 and 11.2 is the high proportion of ethnic minority defendants in the Crown Court (around a third: 31 per 165

Trevor Hall, ‘Black People, Crime and Justice’ in Michael Day, Trevor Hall and Courtenay Griffiths, Black People in the Criminal Justice System (Howard League for Penal Reform, 1989), at p. 11. 166 In the Crown Court, 52 per cent of black, 51 per cent of Asian and 39 per cent of white defendants; and, in the magistrates’ courts, 63 per cent of black, 56 per cent of Asian and 46 per cent of white defendants. Comparing the two minority ethnic groups with the white defendants, the difference between them in the proportion who said that things could done to increase confidence in the Crown Court (55 per cent v. 39 per cent) was statistically significant:
2:7.759, 1df, p:0.005; and the same was true of the magistrates’ courts (60 per cent v. 46 per cent):
2:5.763, 1df, p:0.016.

117

A Fair Hearing? Table 11.1 What could be done to increase confidence? Crown Court defendants (percentages rounded) White Crown Court More ethnic minority judges More ethnic minority jurors More ethnic minority court staff Total – more ethnic minorities in court Better/younger judges Total – change in personnel Less formality/more involvement/to have a say More individualisation/less reliance on pre-cons/less harsh sentences/less bias/less stereotyping/more fairness Better representation by lawyers Better court conditions/better cell conditions/more information/ less delay Other jury issues Other issues: probation/prosecution/ more than one judge, etc.

Black

Asian

Total

N:42 % N:91 % N:38 % N:171 % 2 0 0 2 5 7 8

5 0 0 5 12 17 19

16 4 6 26 7 33 8

18 4 7 29 8 36 9

7 2 5 14 0 14 3

18 5 13 37 0 37 8

25 6 11 42 12 54 19

15 4 6 25 7 32 11

10

24

25

28

9

24

44

26

3 6

7 14

3 7

3 8

3 4

8 11

9 17

5 10

2 6

5 14

2 13

2 14

4 1

11 3

8 20

5 12

cent) and in the magistrates’ courts (nearly half: 48 per cent) who would like to see more minority ethnic people sitting in judgment and among the staff of the courts. It is also interesting to note that about a quarter in the Crown Court and one in seven in the magistrates’ courts said that their confidence would be increased if there were more individualisation of sentencing to take into account the circumstances within which their offending took place. But this was just as true of white defendants, who were especially critical of criminal history being given ‘undue weight’, as it was of black and Asian defendants, although the latter were more concerned about stereotyping and lack of understanding of their culture. It will be recalled (see Chapter 5, page 69 above) that we were unable to find any statistical association between the ethnic composition of magistrates’ court Benches and the proportion of minority ethnic defendants who said that they thought they had been treated unfairly in court due to racial bias. But, in order to get their perception of the Bench, we also asked: ‘Were you happy with the composition of the Bench of magistrates (or District Judge) that decided your case?’ It was perhaps surprising to find (see Table 11.3) that Asian defendants in the magistrates’ courts slightly more often expressed themselves positively 118

What still needs to be done? Table 11.2 What could be done to increase confidence? Magistrates’ court defendants (percentages rounded) White Magistrates’ court More ethnic minority District Judges and magistrates More ethnic minority court staff Total – more ethnic minorities in court Better/younger magistrates Total – change in personnel Less formality/more involvement/to have a say More individualisation/less reliance on pre-cons/less harsh sentences/less bias/less stereotyping/more fairness Better representation by lawyers Better court conditions/better cell conditions/more information/less delay Other issues: probation/prosecution/ more or fewer professional judges/ general social education on race issues to filter down to courts

Black

Asian

Total

N:37 % N:132 % N:61 % N:230 % 2

5

44

33

19

31

65

28

1 3 1 4 4

3 8 3 11 11

25 69 4 73 7

19 52 3 55 5

9 28 6 34 5

15 46 10 56 8

35 100 11 111 16

15 43 5 48 7

7

19

21

16

7

12

35

15

2 16

5 43

7 9

5 7

5 8

8 13

14 33

6 14

4

11

15

11

2

3

21

9

‘unhappy’ when one or more members of the Bench was from an ethnic minority (23 per cent) than when the Bench was ‘all white’ (15 per cent). The reason may be summed up in a comment made by an assistant optician of Indian ethnicity, born in England. He had been dealt with by two Asian magistrates and one white magistrate and found guilty, after a trial, of possession of cannabis. He was fined £100. On the one hand, he said that he wanted to see ‘more Asians in Court and less of a white environment’, but, on the other hand, he believed that: ‘Putting more Asians inside the courts itself doesn’t really solve the problem, as I felt with the judges in this case. They had a bit of an inferiority complex . . . I honestly feel they thought: ‘‘He’s Asian, it’s a tough case where we don’t expect him to get off, but the evidence given is strong enough for him to get off. But we don’t want people thinking we’re giving him favours’’ . . . If there was a white person today I felt maybe they would have let off the case, but being Asian magistrates they thought: ‘‘What are the white people going to say’’ ’. However, we came across no such wariness among the black defendants, who were much more likely (30 per cent) to say positively that they were 119

A Fair Hearing? Table 11.3 ‘Were you happy with the composition of the Bench?’ by ethnic mix of the Bench (percentages rounded) Black

‘Happy’ with composition of the bench? ‘Yes’ and ‘Don’t know’ ‘No’

‘Allwhite’

Asian

‘Ethnically mixed’

‘Allwhite’

‘Ethnically mixed’

Total ethnic minority defendants

N:103 % N:37 % N:48 % N:22 % N:210 % 72

70

34

92

41

85

17

77

164

78

31

30

3

8

7

15

5

23

46

22

‘unhappy’ at being dealt with by an ‘all-white’ Bench of magistrates or a white District Judge than by an ‘ethnically mixed’ Bench or a District Judge from an ethnic minority (eight per cent). Typical comments were: ‘Well if there were more black judges for a start: maybe that would help. If there was a black judge in this case, he would not automatically say you are playing loud music . . . But it’s not like you can do anything to affect the situation’. ‘As a black person surrounded by white authority I felt I would be misrepresented’. ‘I would be more comfortable to have a member of an ethnic minority on the Bench, it would be more fair’. ‘There should be more people of ethnic minority on the Bench. I would then feel more confident that I would be treated fairly’. ‘Judges from ethnic minorities will understand you more. If judged by my peers I would have maybe felt better’. It is clear from these findings that a substantial minority of ethnic minority defendants, especially black defendants, would have preferred to be dealt with in a court environment where there were more persons sitting in judgment or playing a role in the proceedings with whom they could identify.

The views of witnesses When the ethnic minority witnesses were asked: ‘Has this court done what it ought to do to meet the needs of ethnic minority witnesses?’, 54 per cent of black and 77 per cent of Asian witnesses said ‘Yes’, and less 120

What still needs to be done?

than a quarter (22 per cent) of black and 19 per cent of Asian witnesses said positively ‘No’. Those who said ‘No’ were asked: ‘What more could have been done?’ Of the 12 Asian witnesses: ( five mentioned the needs of their religion: the provision of facilities for washing hands before touching the Koran, a place to pray, or more understanding of their beliefs ( three felt that they should have been offered an interpreter ( two felt that they should have been provided with more protection and support ( one felt ignored ( and one would have liked ’someone from his nationality and culture’ to have informed him about the court. Of the nine black witnesses: ( three said that they would have liked to have seen more ethnic minorities in court and on the jury: ‘they don’t understand what’s going on in the street . . . because they’re not minorities’ ( three mentioned the need for better communication: ‘I believe they use a particular jargon to exclude or isolate people’ ( and three mentioned provision of ethnic food, better security, and more interpreters.

The views of court staff Only a third (20/61) of clerks, legal advisers and ushers said that they had had any training relating to ethnic awareness: 15 of the 47 whites and five of the 14 ethnic minorities. However, more than three-quarters of those who had not had training thought that they would benefit – as would the ethnic minority defendants and witnesses they dealt with – if it were to be provided. Asked whether, from their perspective, they thought that judges or magistrates could do anything to raise the confidence of ethnic minorities in the courts, about half (28/61) said ‘No: nothing further could be done’. Most of them expressed great confidence in the judges: ‘The judges are all fair, fantastic people, they’re very harsh on racial violence’; ‘Judges bend over backwards to accommodate all ethnic minority defendants’. But a third (21/61: including half of the 14 ethnic minority staff) said there was room for change, the most frequent suggestions being: ‘more 121

A Fair Hearing?

judges from ethnic minorities’ (7); less formality and better communication – ‘less flowery language’, ‘less legal jargon’ (9); and treating ‘everybody more equally/fairer’ (2). Asked whether they thought that barristers or solicitors could do anything to help to raise the confidence of ethnic minorities, a third (21/61) said that they felt there was more that they could do, mentioning in particular the need for them to provide their clients with a better explanation of the system: ‘Help people understand the system’; ‘Explain the purpose of the court, that it’s an impartial system’; ‘Better explanation of procedures’; ‘Better communication with ethnic minority defendants’; ‘Brief clients better before coming into court’. As regards the court system as a whole, nearly half the court staff (29/61: including nine of the 14 ethnic minority staff) said that there were things still to be done to help lift the confidence of ethnic minorities. For example, three mentioned the need for a prayer room; seven said that there should be more minority ethnic persons working in the court service; six thought it would be helpful to have notices in different languages or a resident interpreter; and seven believed that more effort should be put into creating better communication with ethnic minorities so that they understood the court system better. The 14 ethnic minority clerks and ushers were asked whether they themselves had ever suffered from unfair treatment on account of their ethnic origin. Four said ‘Yes’, but none said that they had suffered discrimination while working in the court system. Only one of the 14 said that she ‘might be’ disadvantaged as a member of an ethnic minority: ‘Yes, it was perhaps relevant to promotions’. Although another felt some potential disadvantage, she said: ‘I don’t believe it will hold me back in my career’. The other 12 were very positive. For example: ‘I feel well-integrated’; ‘I am very well integrated’; ‘I don’t anticipate any disadvantage’; ‘My career progression will only be hampered if I let it: I’ve been lucky so far’.

The views of lawyers The lawyers we interviewed were asked whether they thought that there was anything that judges could do that they were not already doing that could increase the confidence of ethnic minorities in the criminal courts. Four out of ten could not think of anything, mainly because they felt that the issue had been satisfactorily addressed in recent years. But the majority (61/106: 58 per cent) still thought that more needed to be done. This included all but one of the 19 black lawyers (95 per cent) but a lower proportion of the Asian (12/26: 46 per cent) and white lawyers (31/61: 51 per cent). Those who thought that more remained to be done to increase the confidence of ethnic minorities said that some judges still 122

What still needs to be done?

needed to change their approach or attitude towards them: to become more socially conscious, more sensitive, and more courteous and to be more in touch with their needs. They should ensure that ethnic minority defendants were put at their ease and be careful not to cause offence unintentionally through their use of language. Some advocated the avoidance of ‘legalese’, the adoption of layman’s terms, and a clear explanation of reasons when imposing a sentence. ‘It doesn’t help when judges make silly comments about hats which Rastafarians wear . . . You’ve just got to realise that you just respect people, treat them as equal, as the same’. (white barrister, 33 years’ experience) ‘They’ve got to be able to speak in a way that people can understand them, you know, in a basic fashion, because people do tend to speak legalese and they just don’t understand it’. (white solicitor, 14 years’ experience) ‘Judges should make a specific reference to the defendant in court and say I know you are black but I do not judge you by your colour’. (white solicitor, three years’ experience) ‘Have greater understanding of their culture or of the cultural differences and cultural perception of a particular defendant to a particular set of circumstances giving rise to the commission of the offence would be an advantage. How it’s going to be done I am not sure. It’s for those who are expert in the behavioural sciences to work out some kind of training programme’. (‘Black Caribbean’ barrister, 23 years’ experience) ‘Some are stuck in old ways. For example, a judge didn’t think a racially aggravated case was effective even though the term ‘‘nigger’’ was used’. (‘African’ solicitor, 12 years’ experience) ‘Judges must put defendants at their ease more whilst in court . . . For example, many judges do not smile, particularly in dealing with ethnic minorities. They seem not to smile out of principle and for ethnic minorities that is most disconcerting’. (Indian barrister, 11 years’ experience) Other suggestions were that judges should go out into the community more and attend cultural events; that they should take a tougher stance with the police; and that they should be less ‘prosecution-minded’: ‘Spend more time in minority communities. Go there instead of just reading about them. Learn about respect, the culture generally, and the social hierarchy within minority cultures that is not present in white cultures. For some judges, Brixton is just a place on the map’. (mixed race: ‘white and black Caribbean’ barrister, five years’ experience) 123

A Fair Hearing?

‘Magistrates need to take a firmer line with police’. (mixed race: ‘white and black Caribbean’ barrister, one year’s experience) The lawyers were also asked whether they thought that there was anything barristers or solicitors representing clients could do that they were not already doing that would increase the confidence of ethnic minorities in the criminal courts. Nearly six out of ten of those who responded (56/99: 57 per cent) said ‘Yes’, with little difference between the ethnic groups: 62 per cent of black (10/16), 56 per cent (32/57) of white and 54 per cent (14/26) of Asian lawyers. Those who said that there were things that lawyers could do mentioned being more sensitive; avoiding pomposity or aloofness; taking time to understand their clients’ backgrounds; being more culturally aware; learning languages; being more outspoken when representing clients by challenging inappropriate language; not being over-ingratiating towards the judiciary; and making sure that ethnic minority defendants and witnesses understood what was going on. All of this might be achieved by attending ethnic awareness training sessions. ‘I think sometimes barristers in particular think so highly of themselves that they tend to either distance themselves from the client or look down on the client. So I think we all should remember that we are all human beings’. (white solicitor, 23 years’ experience) ‘[They] need to avoid aloofness’. (‘British African’, eight years’ experience) ‘They shouldn’t allow judges to get away with things. They should make a fuss about things and put them in their place. They should be fiercely independent’. (white solicitor, 20 years’ experience) ‘Challenge inappropriate language and perceptions. But it is extremely difficult . . . to put your head above the parapet, especially for example if judges use inappropriate language. You may feel intimidated’. (‘Black African’ barrister, three years’ experience) ‘Convince their ethnic minority clients that they are representing them to their best ability and exactly as well and with as much hard work as they would for a white client’. (white solicitor, 10 years’ experience) ‘Take more time to explain procedures. Oftentimes black and Asian clients are more nervous in court’. (mixed race: ‘white and black Caribbean’ barrister, 10 years’ experience) ‘You have to be very careful that they understand what is happening, otherwise there will be a feeling that they have not been fairly treated or things have not been explained’. (white solicitor, seven years’ experience) 124

What still needs to be done?

Finally, the lawyers were asked whether they thought that there was anything that the court system as a whole could do to increase the confidence of ethnic minorities. Nearly two-thirds of those who responded (67/103: 65 per cent) said ‘Yes’: but a much higher proportion of black (18/20: 90 per cent) than either white (33/58: 57 per cent) or Asian (16/25: 64 per cent) lawyers did so.167 Like all the other groups interviewed for this study, the most frequently made suggestion, from four out of ten of all the lawyers, was that there should be recruitment of more ethnic minorities to the judiciary, the magistracy, juries or the court service. ‘The issue of racially mixed juries is something that should be reviewed . . . It would raise confidence for the judge to have power to order racially mixed juries’. (white barrister, 13 years’ experience) ‘I think in the magistrates’ court where they have lay benches . . . they should be bending over backwards to have more ethnic origin representatives on the Bench. I think that it’s an outrage in this court, for example, and it’s only just changing now, that when you go in there might be one black person. The succession of black defendants, Asian defendants – well, not so much Asian defendants but certainly black kids – they see nobody in their entire courtroom of the same ethnic origin as them . . . I don’t know what they are doing about lay Benches, but I would have thought that that was a really good way of involving the black community in the system of justice and it has a roll-on effect. Because if you are actually going to see people of your group in front of you and they are going to judge you, then it may mean that you have more respect for society as a whole. Whereas I think if you sit there and there are three suits in front of you who do not understand anything about your background at all, you may well have less respect. And sometimes if there is a black judge, for example, they sit up sharp and think ‘‘Wow’’ ’. (white solicitor, 10 years’ experience) ‘I strongly urge whoever is listening or who is dealing with the results of this interview to find that there is an under-representation in the magistrates’ court and on juries of those from ethnic minorities and this is not reflective of the ethnic population. That will certainly increase their confidence’. (white barrister, three years’ experience) ‘More ethnic people – but in the magistrates’ court what I do find is that it is sometimes a disadvantage for ethnic minority defendants to have a magistrate of the same ethnicity as those sitting’. (Indian solicitor, 14 years’ experience) 167

Four white lawyers said they ‘didn’t know’.

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A Fair Hearing?

‘More ethnic minorities sitting on the Benches. That would at least appear to give confidence to ethnic defendants’. (‘African’ solicitor, six years’ experience) Other suggestions as to how the court system might improve the confidence of ethnic minorities included more and better interpreters to be made available; for religious holidays and festivals to be observed and for prayer rooms to be provided in each court; for more research into ethnic issues to be initiated and for more action to be taken on research; for the courts to be opened up to visits by members of the ethnic minority communities and for judges and magistrates to go out to learn how those communities actually function; for the publication of a ‘Race Charter’ for the courts; and for a system of accountability for judges and other legal professionals to be created. Some of these points were vividly made: ‘There should be a publicly stated charter which makes clear that the courts are not biased because of people’s race’. (‘Black British’ solicitor, seven years’ experience) ‘The Lord Chancellor’s Department should review the behaviour of judges and tell them when they behave properly or not. Certain judges can be extremely rude and unpleasant. They should investigate’. (white barrister, 13 years’ experience) ‘There’s a huge divide between the court system and ethnic minorities. The divide can be filled if more is done to explain that the courts are not there to convict black boys. If the judges were to get the local communities into court and explain the court system to them, then there would be less of a divide’. (Indian barrister, 11 years’ experience) ‘Judges and magistrates actually need to go into school. Judges and magistrates are supposed to be our peers and they should know something about our life, our background, and that needs to be addressed’. (AfricanCaribbean solicitor, five years’ experience) ‘Get rid of wigs. The judge tells a Rasta man to take off his hat, yet what is he wearing?’ (mixed race: ‘white/black’ barrister, five years’ experience)

Suggestions from the judiciary Only two of the 26 judges suggested that the intensive training in ethnic awareness carried out several years ago should now be repeated: ‘I have to say that it was extremely helpful and it occurred to me that it was something that could usefully be repeated’; ‘Most who took it thought that they would like 126

What still needs to be done?

to repeat it. But it hasn’t been repeated. Those who were sceptical about it, after they had been through the course, became reformed characters so far as training is concerned’. However, many of the rest felt that further training was unnecessary because they could obtain the information they needed from the Equal Treatment Bench Book. A copy of the Bench Book – the latest edition of which had appeared in August 1999168 – is sent to every full-time and part-time judge in the Crown Court. Only three of the 26 judges interviewed indicated that they thought there was no need for the courts or the judges to make any changes to increase the confidence of ethnic minorities in the criminal courts. By far the most frequently expressed view was that more ethnic minorities needed to be employed in the court service, as counsel and as judges – although in the latter case they recognised that it would take some time before sufficient candidates were likely to come forward. Other suggestions, like those made by some of the lawyers interviewed, included better public relations (for example, through visits to schools), ‘court open days’, a dedicated website and even employing a press officer. ‘I think it would be very dangerous to do away with the selection of juries by lot . . . but, with ushers, and court staff, ethnic minorities are under-represented and we are manifestly deficient in judges’. ‘To be blunt, the only way to do it is to have a better ethnic mix at the Bar and then in the judiciary. A few years ago they were saying the same thing about women. We all empathise with people from our own background or who understand our background’. ‘There is, of course, a problem here of reconciling quality with the need to recruit more ethnic minority members of the judiciary and this needs to be addressed, but it should lessen over time’. ‘If we had more judges from ethnic minorities that would help. It will come but it could come a bit quicker. There are a lot of very good black barristers. It would be much better if there were a few black judges and women. It’s very much people like me, my sort of background, at the moment. But that should be a thing of history’.

Suggestions from magistrates Nineteen of the 125 magistrates thought that everything that could be done to create an aura of confidence in the system was already being 168

An updated version of the Equal Treatment Bench Book was produced and circulated to the judiciary in 2004.

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A Fair Hearing?

done and that no further improvements were necessary. But they included only three of the 32 magistrates from minority ethnic backgrounds. Thus, a higher proportion of minority ethnic magistrates (81 per cent) than white magistrates (66 per cent)169 came forward with a variety of proposals. A few (six) thought that it would be helpful for white magistrates to gain more knowledge through contact with the local community. For example: ‘We should go out more often. Closer links with ethnic communities would allay fears’. (white female, five years on Bench) ‘Some white middle-class magistrates need to take part in community schemes in ethnic neighbourhoods to fully understand and to be aware of the needs of ethnic minorities’. (Pakistani male, 10 years on Bench) Another six emphasised the need for better communication with, or greater courtesy towards, defendants from ethnic minorities: ‘Younger ethnic defendants don’t appear to have any confidence in the system. We should try to explain everything better in simple terms. Also appear to be fair’. (white male, 16 years on Bench) ‘Give defendants more opportunity to speak in court or ask questions’. (‘Barbadian Caribbean’ male, 16 years on Bench) ‘Make them feel comfortable when they appear in court, Make sure they understand what is going on . . . Face-to-face communication is needed. Magistrates need to talk to people, not at them’. (‘Caribbean’ male, six years on Bench) However, more ethnic awareness training was regarded as a priority by only 11 of the 125 magistrates: ‘Yes, magistrates should be trained extensively (as are judges) in race issues’. (‘Black South American’ male, nine years on Bench) ‘More racial equality awareness. Involvement of community members on the training development courses for magistrates. More magistrates who represent the communities they serve’. (Pakistani male, one year on Bench) By far the most frequently made proposal to increase confidence in the magistrates’ courts was to recruit a higher proportion of magistrates and court staff from the local minority ethnic population. This was suggested 169

Sixty-six per cent of white magistrates (59/90) and 81 per cent of minority ethnic magistrates (25/31):
2:2.473, 1df, p:0.116; not statistically significant.

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What still needs to be done?

by nearly one in four (29/125) of the magistrates interviewed: a third of the minority ethnic magistrates and one in five of the white magistrates. ‘It might help to have more ethnic minorities on the Bench. I think there are only two District Judges from ethnic minorities in London, two out of 48. We should do something about this, although maybe there are not enough applicants’. (white male District Judge) ‘I think that on every Bench there should be someone from ethnic groups. In the listing office they know where defendants will be appearing and it should be easy for listings to match up with an ethnic minority magistrate. Also stipendiary magistrates are all white, male and middle class’. (African-Caribbean female, 10 years on Bench) ‘There could be more opportunities to have a black magistrate sitting before a black defendant, because this may make the black defendant perceive that he will be treated fairly’. (white male, 18 months on Bench)

In conclusion As we pointed out in Chapter 2, one could hardly expect to find, among people who had just been punished by the criminal courts, especially with imprisonment, that no one felt unfairly treated. Nor was it likely that there would be no defendants from ethnic minorities who harboured, at the very least, a suspicion that their treatment had been affected by racial stereotyping, ignorance or bias. But the findings from this study, based on interviews mostly with convicted defendants immediately after they had been sentenced, have revealed that a smaller proportion of ethnic minority defendants than had hitherto been supposed – between a quarter and a third – believed that their treatment by the criminal courts had been in some way unfair. Furthermore, a much lower proportion said that their treatment had been racially biased than was reported in the 1990s: when their reaction was described as ‘fear, worry and confusion’.170 Indeed, a large majority of all defendants (at least two-thirds, whether white, black or Asian) did not perceive their treatment in court as unfair, and an even larger majority (at least 75 per cent of black and Asian defendants) did not think that racial bias had had anything to do with the way in which their case had been dealt with by the court. Nor did we find such a degree of lack of confidence among black people as a whole (defendants, barristers and solicitors) as NACRO had reported to exist in the mid-1980s.171 170 171

See page 11 above. See pages 10–11 above.

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A Fair Hearing?

The most positive finding reported in this monograph is that the majority of judges, magistrates and lawyers had perceived a ‘culture change’, which they attributed to the inculcation of much greater sensitivity towards, and better understanding of, ethnic minority defendants than had previously been the case. The ethnic awareness training that had been carried out, now embodied in the Bench Book, appears to have had an effect not just on the formal ways in which judges deal with ethnic minorities, but on their recognition that they need to examine their prejudices and degree of ignorance about the lifestyles, culture, religion and languages of members of minority ethnic groups if they are to treat them fairly. It was readily admitted that overt racism had been present in legal circles a decade or so ago, but this was now viewed as largely a thing of the past. This does not mean, however, that there is room for complacency. Six out of ten of the one-third of black defendants who thought that they had been unfairly treated by the Crown Court attributed this unfairness to racial bias. Altogether one in five black defendants in the Crown Court perceived racial bias. Similarly, of the quarter of Asian defendants who believed that they had been unfairly treated by the Crown Court, almost half attributed it to racial prejudice: accounting for one in eight of all Asian defendants. If one were to include those who said they ‘didn’t know’ whether their ‘unfair treatment’ had been due to racial discrimination, the figures would have risen to almost one in four black and one in five Asian defendants. Furthermore, roughly four out of ten minority ethnic defendants in both the Crown Court and the magistrates’ courts expressed a lack of confidence that they would be treated fairly if they were to appear in court again (although the same was also true of white defendants in the Crown Court). Underlying this was the finding that about one in three defendants (including white defendants) believed that ethnic minorities were not always treated equally by the criminal courts: a belief fuelled by the widely held opinion that black people are not treated equally by the police and by knowledge that black males and females are greatly overrepresented (in comparison with their number in the community) in the population of the prisons. This helps to explain why most of the minority ethnic defendants who said that they thought their own treatment had been affected by ‘racism’ mentioned the type and length of the sentence they had received, especially when compared with what they believed a similarly placed white defendant would have received. They only very rarely mentioned any discourtesy or racially offensive remarks or behaviour to which they had been subjected. To use the words of Tom Tyler, the great majority of their complaints were about distributive injustice, not procedural injustice (see page 17 above). The black and Asian defendants who believed that their sentence had been 130

What still needs to be done?

unfairly influenced by race tended to complain that the courts were too affected by their stereotypical perceptions of minority ethnic offenders and were thus impervious to evidence that the person before them was trying to change. Too great an emphasis, some said, was being placed on previous convictions, often accumulated at a stage in their lives when they had been under the influence of peer pressures which now no longer pertained. Many judges and magistrates believed that it is necessary to take into account the different cultures and social structures of minority ethnic communities in deciding how to interpret behaviour and to allocate blame and punishment. On the other hand, a substantial minority (including some ethnic minority magistrates) believed that this would compromise the principle that all should be treated equally ‘irrespective of racial or ethnic background’. We suspect that these are quite different approaches, not merely different ways of saying that there should be equal treatment. If so, holding one view or the other may affect how judges react to and interpret the facts presented to them when deciding what sentence to impose. This is an issue that warrants further research. In any case, judges and magistrates should show that they have given consideration to the social and cultural context in which the offending has occurred. They can do this by carefully explaining to the defendant before them the reasons why they have decided to impose the sentence they have chosen and what weight they have given to the aggravating and mitigating factors presented to them. Expressions such as ‘evil’ or ‘civilised’, which can be interpreted as racially tinged, are better avoided. It was our impression that, at the time of sentence, defendants did not always appreciate or understand the sentencing remarks of judges and magistrates. To avoid such misunderstandings, there is a strong case for a written transcript to be made available automatically to everyone sentenced – just as reasons are now given to everyone refused parole. An opinion voiced by many defendants, witnesses, judges, magistrates and lawyers was that it would be better if the courts were not perceived as ‘white-dominated’ institutions, especially in cities where a high proportion of the clientele are from ethnic minorities. It is true to say that our findings did not suggest that there was any consistent relationship between complaints of racial unfairness and the ethnic composition of the court. However, minority ethnic court staff, lawyers and magistrates were more likely to report incidents of racial bias than their white counterparts. In other words, they were, as might be expected, more attuned to the possibility that racial prejudice might be at work. And among black defendants and lawyers in particular there was a belief that the authority and legitimacy of the courts, and confidence in them, would be strengthened if more personnel from ethnic minorities were seen to be playing a part in dispensing justice in the criminal courts. In 131

A Fair Hearing?

our view, there seems to be a good case for ensuring that the magistrates’ rota of sittings are organised so as to ensure that, in those areas where a substantial proportion of defendants are from minority ethnic backgrounds, at least one magistrate from such a background will be sitting on each Bench. Efforts should also be made to recruit more District Judges from ethnic minority lawyers; and, as soon as possible, more Crown Court judges. Our findings, therefore, lend support to the efforts being made by the Lord Chancellor to increase the number of minority ethnic judges.172 Another change that might be considered is to simplify as far as possible the language used in court by the legal profession. It was not only minority ethnic persons who found some aspects of the procedure hard to follow because of ‘posh’ language or legal jargon. It would certainly be advantageous for much better information about the workings of the court system to be provided for all defendants, especially ethnic minorities. Interviews with court staff and lawyers conducted for this study revealed that relatively few clerks, legal representatives and ushers had been trained specifically in ethnic awareness issues. It was also apparent that many of those who had not been trained recognised the need for it. This supports the view of the Criminal Justice Consultative Council Race Sub-Group that ‘all staff in criminal justice agencies should receive equality training, which should be followed up by refresher events’.173 However, very few of the judges and magistrates interviewed felt that it was necessary to receive further training in ethnic awareness, the former especially because they had available to them the Judicial Studies Board’s Equal Treatment Bench Book, a very thorough document that is much appreciated by the judiciary. But whether new judges should rely solely on this written guidance is a matter for reflection, for a number of judges pointed out that the great value of the training sessions was that they concentrated their mind on the issue of ethnicity, heightened their awareness, and demonstrated that the matter was being taken very seriously. Obviously the criticism of some judges that the former structure of training had elements of ‘artificiality’ about it would have to be taken into account. The interviews with magistrates, several of whom gave worrying evidence of continuing insensitivity, suggest that ethnic awareness courses are still required. The same applies to barristers and solicitors. It should be emphasised that this study has been directed at revealing perceptions of and beliefs about equal treatment held by ethnic minorities 172

See Consultation Document, Increasing Diversity in the Judiciary, CP 25/04 (Department for Constitutional Affairs, October 2004). 173 CJCC Newsletter, Issue 20, August 2000, at p. 2.

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What still needs to be done?

who have found themselves subject to the jurisdiction of the criminal courts. The inquiry has shown that the main concern, among the minority who perceived racial bias in their treatment, arose from their view that the sentence imposed on them as a minority ethnic defendant was more severe than a similarly placed white defendant would have received. Even though this was the view of a minority, it is clearly unsatisfactory that any person dealt with by the criminal courts should come away from their experiences with the feeling that they have been treated unfairly because of racial bias. Given the changing circumstances since an objective study of sentencing practices was carried out in the West Midlands in 1989, it is not possible to say whether that perception of differential racially biased sentencing has any basis in objective evidence. If it could be shown that the ‘cultural change’ which our respondents believed has occurred over the past decade has had a real impact on eliminating differential sentencing of white and minority ethnic defendants, this would further promote the confidence of ethnic minorities in the criminal courts.

133

Appendix

RESEARCH ON RACE AND THE COURTS INTERVIEW SCHEDULE FOR DEFENDANTS Case Number Defendant’s Name Defendant’s Sex: Male

1

Female

2

Magistrates’ Court Crown Court IF IN CROWN COURT: Name of Judge Date of interview Name of interviewer Was the defendant in custody when interviewed? Yes

1

No

2

Was interview tape recorded?

134

Yes

1

No

2

Appendix

IF NO: Why not?

Start time:

Finish time:

Total length: Was the final court hearing observed? Yes All

1

Yes Part

2

No

3

Instruction to interviewer: Explain the purpose of the study by reading this STATEMENT. MY NAME IS . . . I’M FROM OXFORD UNIVERSITY/ BIRMINGHAM UNIVERSITY WHERE WE ARE CONDUCTING INDEPENDENT RESEARCH, WITH THE SUPPORT OF THE LORD CHANCELLOR’S DEPARTMENT, INTO THE EXPERIENCES OF PEOPLE [FROM ETHNIC MINORITIES] WHO HAVE ATTENDED THE CROWN COURT OR THE MAGISTRATES’ COURT. AS YOU KNOW THERE IS NO OBLIGATION TO TAKE PART, BUT WE VERY MUCH HOPE THAT YOU WILL AGREE TO GIVE US YOUR FRANK AND HONEST VIEWS ABOUT YOUR EXPERIENCES. I CAN ASSURE YOU THAT WHAT YOU TELL ME WILL NOT BE USED IN ANY WAY THAT WOULD IDENTIFY YOU PERSONALLY. FURTHERMORE, NOTHING YOU TELL ME WILL HAVE ANY EFFECT, ONE WAY OR ANOTHER, ON THE CASE IN WHICH YOU HAVE BEEN INVOLVED.

1. PERSONAL QUESTIONS We need first to ask a little about you so that we can see whether people from different backgrounds have had different experiences and have formed different views. 1. How old are you? 135

A Fair Hearing?

2. In which country were you born? England

1

Scotland

2

Wales

3

N. Ireland

4

Irish Republic

5

Other

6

3. IF OTHER: Specify: 4. Have you lived in Britain all your life? Yes

1

No

2

5. IF NO: How long have you lived in Britain? 1. Months 2. Arrived just prior to arrest 6. Are you a British citizen? Yes

1

No

2

7. IF NO: What country are you a citizen of? 8. This is the way the National Census asks people to classify themselves. Could you show me which of the NUMBERS on the list best describes you? [SHOW CARD]

136

Appendix

A. White British

1

Irish

2

Any other White background, please specify

3

B. Mixed White and Black Caribbean

4

White and Black African

5

White and Asian

6

Any other Mixed background, please specify

7

C. Asian or Asian British Indian

8

Pakistani

9

Bangladeshi

10

Any other Asian background, please specify

11

D. Black or Black British Caribbean

12

African

13

Any other Black background, please specify

14

E. Other ethnic group Chinese

15

Any other Black background, please specify

16

9. Are you satisfied with this way of describing yourself? Yes

1

No

2

10. IF NO: How would you describe yourself?

137

A Fair Hearing?

IF NOT APPARENT, ASK: 11. Are you fluent in English? Yes

1

No

2

IF NO [AND DID NOT HAVE AN INTERPRETER] ASK: 12. Do you think you would have benefited from having an interpreter? Yes

1

No

2

13. IF YES: Why didn’t you get an interpreter?

ASK ALL: 14. When you are in work what type of job do you usually have? [note if full-time student]

2. QUESTIONS ABOUT CHARGES AND COURT EXPERIENCES Now I would like to ask you some questions about your experiences as a defendant in court. 15. Is this the first case in which you have appeared in any court as a defendant? (Ring both 2 and 3 if appropriate) First time

1

Previous M Ct

2

Previous Crown Ct

3

16. Did any of these cases end up with your being sentenced to prison?

138

Yes

1

No

2

Appendix

17. Have you ever observed another person’s case OR been a witness OR a juror in a case in EITHER a Magistrates’ Court or a Crown Court? Magistrates’ Ct Yes

Crown Ct Yes

Observer

1

2

Witness

3

4

DNA

5

Juror

LET’S NOW TURN TO THE PRESENT CASE FOR CROWN COURT CASES (TRIABLE EITHER WAY) THAT COULD HAVE BEEN HEARD IN THE MAGISTRATES’ COURT: 18. Did YOU ELECT TRIAL at the Crown Court OR were you COMMITTED by the magistrates? Elected trial

1

Committed by magistrates

2

Indictable only case

3

IF ELECTED TRIAL: 19. Why? 20. Who advised you to do so? My solicitor

1

My barrister

2

Decided myself

3

Family or friend

4

Other (specify)

5

IF COMMITTED BY MAGISTRATES: 21. Would you have preferred your case to have been dealt with in the Magistrates’ Court? Yes

1

No

2

139

A Fair Hearing?

22. Why? FOR MAGISTRATES’ COURT CASES (TRIABLE EITHER WAY) THAT COULD HAVE BEEN HEARD IN THE CROWN COURT AND WHERE THE DEFENDANT PLEADED NOT GUILTY: 23. Why did you agree to be TRIED by the MAGISTRATES rather than go FOR TRIAL to the CROWN COURT?

ASK ALL DEFENDANTS: 24. Was the language used in court clear enough so that you could understand everything that was going on? Yes

1

No

2

25. IF NO: What didn’t you understand? 26. Do you think this put you at a disadvantage in any way? Yes

1

No

2

Not sure/don’t know

3

27. IF YES: Can you give me some specific examples?

3. PERCEPTIONS AND VIEWS ABOUT THE CURRENT CASE I want you to think back over the whole process in relation to this case, from the first time you came into court until now. 28. Has anything happened that has made you feel that you have been treated in a way that was unfair, was biased, or which showed you lack of respect?

140

Yes, Something

1

No, Nothing

2

Appendix

IF NOTHING: Just to check that I’ve got this right: Are you saying that you believe that you have been treated fairly and in an unbiased way, and shown due respect throughout this case as far the court is concerned? IF SOMETHING: 29. Tell me what happened that you think was not right? [If more than one thing is indicated, ask the respondent to start with the incident that concerned him or her the most.]

30. What was it about this thing [each of them] that made you feel dissatisfied?

31. IF APPROPRIATE: Do you think that what happened had anything to do with the fact that you are from an ethnic minority? Yes

1

No

2

32. IF YES: Why do you think it had something to do with the fact that you are from an ethnic minority?

4. I WOULD NOW LIKE TO ASK YOU SOME MORE SPECIFIC QUESTIONS How satisfied have you been with: 33. The behaviour of the court staff (such as receptionists, ushers or clerks) you have come into contact with? Very Satisfied

1

Satisfied

2

Dissatisfied

3

Very Dissatisfied

4

DNA/Met no one

5

141

A Fair Hearing?

34. IF dissatisfied/very dissatisfied: Why?

35. The behaviour of the security officers on the way to court OR in the dock OR in the court cells? Transport

In dock

In cells

Very Satisfied

1

2

3

Satisfied

4

5

6

Dissatisfied

7

8

9

Very Dissatisfied

10

11

12

DNA (Not in custody)

13

14

15

36. IF dissatisfied/very dissatisfied: Why?

IF LEGALLY REPRESENTED: 37. Did your lawyer offer you any advice on how to plead? Yes

1

No

2

38. IF YES: How satisfied were you with the advice you received about your plea? Very Satisfied

1

Satisfied

2

Dissatisfied

3

Very Dissatisfied

4

39. IF dissatisfied/very dissatisfied: Why?

IF NOT LEGALLY REPRESENTED: 40. Why didn’t you have a legal representative to appear on your behalf in this case?

142

Appendix

FOR TRIALS WHERE THE DEFENDANT GAVE EVIDENCE HIMOR HERSELF: 41. Was there anything about the way you were questioned by the lawyer acting for the prosecution that you thought was unfair or disrespectful? Yes

1

No

2

42. IF YES: What was it?

43. Do you think that counsel for the prosecution was doing his job, or did he go beyond what a prosecution lawyer ought properly to do? Doing his job

1

Went beyond what a prosecution lawyer ought properly to do

2

FOR CROWN COURT TRIALS ONLY: 44. Were you happy with the composition – the make-up – of the jury? Yes

1

No

2

45. IF NO: What were you unhappy about?

FOR MAGISTRATES’ COURTS ONLY: 46. Were you happy with the composition of the bench of magistrates that decided your case? Yes

1

No

2

47. IF NO: What were you unhappy about?

ALL COURTS: FOR THOSE WHO WERE LEGALLY REPRESENTED, ASK:

143

A Fair Hearing?

48. Was your solicitor (or any of your solicitors) from an ethnic minority? Yes

1

No

2

49. Overall, how satisfied were you with the way your solicitor(s) handled your case? Very Satisfied

1

Satisfied

2

Dissatisfied

3

Very Dissatisfied

4

50. IF dissatisfied/very dissatisfied: Why?

IF YOU DO NOT KNOW ALREADY, ASK: 51. Was the lawyer who represented you in court from an ethnic minority? Yes

1

No

2

52. Overall, how satisfied were you with the way the lawyer who represented you in court handled your case? Very Satisfied

1

Satisfied

2

Dissatisfied

3

Very Dissatisfied

4

53. IF dissatisfied/very dissatisfied: Why?

54. Do you think that everything was said in your favour by your lawyer that could have been said?

144

Yes

1

No

2

Appendix

55. IF NO: What do you think should have been said?

56. IN SUMMARY: How satisfied were you with the mitigation (what was said on your behalf) by your lawyer before you were sentenced? Very Satisfied

1

Satisfied

2

Dissatisfied

3

Very Dissatisfied

4

57. IF dissatisfied/very dissatisfied: Why?

58. IF NOT ALREADY KNOWN, ASK: Did a probation officer prepare a report on you before you were sentenced in this case? Yes

1

No

2

59. IF YES: Do you think that it represented you fairly? Yes

1

No

2

60. IF NO: In what ways didn’t it do so?

61. Do you think that this had anything to do with the fact that you are from an ethnic minority? Yes

1

No

2

62. IF YES: What made you think this?

FOR CROWN COURT TRIALS ONLY:

145

A Fair Hearing?

63. How satisfied were you with the way in which the judge summed up your case to the jury? Very Satisfied

1

Satisfied

2

Dissatisfied

3

Very Dissatisfied

4

64. IF dissatisfied/very dissatisfied: Why?

ALL COURTS: 65. What sentence did you get?

66. What did the judge/magistrate say to you when he/she sentenced you?

67. In the circumstances did you think that what was said was fair comment? Yes

1

No

2

68. IF NO: What was unfair about it?

69. Taking all the circumstances into account, do you think that the sentence you got was any different from what any other person would have got who had done the same thing as you had done, and had a similar record? Yes

1

No

2

70. IF YES: How different?

71. Why do you think it was different?

146

Appendix

IF NECESSARY, PROBE: Do you think that something influenced the sentence in your case that should not have been taken into account?

FOR THOSE WHO HAVE PREVIOUSLY APPEARED IN COURT: 72. Regarding whether you feel you were treated properly, fairly and with respect, how does your treatment in this case compare with the last time you appeared in court? This time was it? Better

1

Just the same

2

Worse

3

73. IF better or worse: What made it better or worse? [PROBE HOW LONG AGO]

5. GENERAL ATTITUDINAL QUESTIONS I would like to end by asking you some questions about what you think of the way the criminal justice system treats people from ethnic minorities. 74. Do you think that people from ethnic minorities are always treated by the police in the same way that a white person is treated? Yes

1

No

2

Not sure

3

Don’t know

4

75. IF NO: Is your reason for saying this any or all of the following? [SHOW CARD]:

147

A Fair Hearing?

Yes No How you have been treated yourself in this particular case

1

2

How you have been treated yourself on a previous occasion

3

4

What has happened to people you know [probe source, including own observations]

5

6

What is ‘common knowledge’ [probe: TV, newspapers, street talk, etc]

7

8

76. Could you give me some examples?

77. Now for a similar question about the criminal courts: Do you think that people from ethnic minorities are always treated by the criminal courts in the same way that a white person is treated? Yes

1

No

2

Not sure

3

Don’t know

4

78. IF NO: Is your reason for saying this any or all of the following? [SHOW CARD] Yes No How you have been treated yourself in this particular case

1

2

How you have been treated yourself on a previous occasion

3

4

What has happened to people you know [probe source, including own observations]

5

6

What is ‘common knowledge’ [probe: TV, newspapers, street talk, etc]

7

8

79. Could you give me some examples?

148

Appendix

80. As someone who has had direct experience of the criminal justice system, if you were to appear in a magistrates’ court again would you be confident that you would be treated fairly? Yes

1

No

2

Don’t know

3

81. IF NO: Why not?

82. As someone who has had direct experience of the criminal justice system, if you were to appear in a Crown Court again would you be confident that you would be treated fairly? Yes

1

No

2

Don’t know

3

83. IF NO: Why not? 84. Do you think there is anything that could be done that would increase confidence in the magistrates’ court? Yes

1

No

2

Don’t know

3

85. What are your reasons for saying this?

86. Do you think there is anything that could be done that would increase confidence in the Crown Court? Yes

1

No

2

Don’t know

3

87. What are your reasons for saying this?

149

A Fair Hearing?

88. How has your experience in this case affected your confidence in the criminal courts in this country? Compared with how you felt before the case was brought, has it made you feel? More confident

1

Made no difference

2

Less confident

3

89. Is there anything else you would like to say? Yes

1

No

2

90. IF YES: specify: THANK YOU VERY MUCH FOR YOUR CO-OPERATION. IT HAS BEEN MUCH APPRECIATED.

150

Bibliography

Auld, Sir Robin, Review of the Criminal Courts of England and Wales, Report (Stationery Office, 2001). Bowling, Ben, and Phillips, Coretta, Racism, Crime and Justice (London: Longman, 2002). Brown, C., Black and White Britain, The Third Policy Studies Institute Survey (London: Heinemann, 1984). Department for Constitutional Affairs, Increasing Diversity in the Judiciary, CP 25/04 (Department for Constitutional Affairs, October 2004). Dworkin, Ronald, Law’s Empire (London: Fontana, 1986). Flood-Page, Claire, and Mackie, Alan, Sentencing Practice: an examination of decisions in magistrates’ courts and the Crown Court in the mid 1990s, Home Office Research Study No. 180 (Home Office, 1998). Fisher, Elizabeth, Race and the Criminal Justice System (Criminal Justice Consultative Council, June 1994) (The Fisher Report). Gordon, Paul, White Law: Racism in the Police, Courts and Prisons (London: Pluto Press, 1983). Halevy, Tamar, ‘Racial Discrimination in Sentencing? A Study with Dubious Conclusions’ [1995] Criminal Law Review, 267–271. Hall, Trevor, ‘Black People, Crime and Justice’ in Michael Dag, Trevor Hall, and Courtenay Griffiths, Black People in the Criminal Justice System (London: Howard League for Penal Reform, 1989). Hearnden, Ian, and Hough, Mike, Race and the Criminal Justice System: An overview to the complete statistics 2002–2003 (Home Office Criminal Justice System Race Unit, 2004). Home Office, The Ethnic Origins of Prisoners: the Prison Population on 30th June 1985 and Persons Received, July 1984–March 1985, Home Office Statistical Bulletin, 17/86 (Home Office, 1986). Home Office, Prison Statistics England and Wales 2000, Cm 5250 (Home Office, 2001). 151

A Fair Hearing? Home Office, Prison Statistics England and Wales 2002, Cm 5996 (Home Office, 2003). Home Office, Statistics on Race and the Criminal Justice System 2000 (Home Office, 2000). Home Office, Statistics on Race and the Criminal Justice System 2002 (Home Office, 2003). Hood, Roger, Race and Sentencing: A Study in the Crown Court (Oxford: Oxford University Press, 1992). Hood, Roger, ‘Race and Sentencing: A Reply’ [1995] Criminal Law Review, 272–279. Hudson, Barbara, ‘Discrimination and Disparity: the Influence of Race on Sentencing’ (1989) 16 New Community, 23–34. Judicial Studies Board, First Annual Report of the Ethnic Minorities Advisory Committee (Judicial Studies Board, September 1992). Judicial Studies Board, Race and the Courts (Judicial Studies Board, 1999). Judicial Studies Board, Equal Treatment Bench Book (Judicial Studies Board, August 1999 and March 2004). JUSTICE, The Judiciary in England and Wales (JUSTICE, 1992). King, Michael, and May, Colin, Black Magistrates: A Study of Selection and Appointment (London: Cobden Trust, 1985). Macpherson, Sir William, Report of the Stephen Lawrence Inquiry, Cmnd 4262-1 (Stationery Office, 1999). McConville, Michael, and Baldwin, John, ‘The Influence of Race on Sentencing in England’ [1982] Criminal Law Review, 652–658. Mirlees-Black, Catriona, Confidence in the Criminal Justice System: Findings from the 2000 British Crime Survey, Home Office Research Findings No. 137 (Home Office, 2001). NACRO, Black People and the Criminal Justice System, Report of the NACRO Race Relations Advisory Committee (NACRO, 1986). Phillips, Coretta, and Bowling, Ben, ‘Racism, Ethnicity, Crime and Criminal Justice’ in Mike Maguire, Rod Morgan and Robert Reiner (eds), Oxford Handbook of Criminology, 3rd edn (Oxford: Oxford University Press, 2002). Royal Commission on Criminal Justice, Report (chairman: Viscount Runciman) Cm. 2263 (HMSO, 1993). Singh, Gurchand, O’Beirne, Maria, Chandry, Sultana, Smith, Patten and Webb, Becky, ‘Perceptions of Racial Prejudice and Discrimination’ in 2003 Home Office Citizenship Survey (Home Office, 2004), Chapter 3. Smellie, Eric, Black People’s Experience of Criminal Justice (NACRO, 1991). Smith, David J., ‘Ethnic Origins, Crime, and Criminal Justice’ in Mike Maguire, Rod Morgan and Robert Reiner (eds), Oxford Handbook of Criminology, 2nd edn (Oxford: Oxford University Press, 1997). 152

Bibliography Tyler, Tom, Why People Obey the Law (New Haven: Yale University Press, 1990). Tyler, Tom, and Blader, Steven L., Co-operation in Groups: Procedural Justice, Social Identity and Behavioral Engagement (Philadelphia: Psychology Press, 2000). Vennard, Julie, Davis, Gwynn, Baldwin, John, and Pearce, Julia, Ethnic Minorities Magistrates’ Experience of the Role of the Court Environment, DCA Research Series 3/04 (Department for Constitutional Affairs, 2004). von Hirsch, Andrew, and Roberts, Julian V., ‘Racial Disparities in Sentencing: Reflections on the Hood Study’ (1997) 36 The Howard Journal of Criminal Justice, 227–236.

153

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Index

acquitted persons, perceptions of unfair treatment 62 advocates, experiences of cultural change 114–16 African-Caribbeans differential treatment towards 7 overrepresentation in prison population 2–3 perceptions of racial bias 36n Asian defendants confidence in equal treatment 71, 72, 73, 74, 75t, 76, 77–8 custodial sentences 7–8 on ethnic mix of the Bench 120t perceptions of fairness 41, 74 perceptions of racial bias 37f, 38t language of the court 59 performance of lawyers 55–6 probation officers and pre-sentence reports 57 security staff 58 unfair sentences 44, 45, 46t, 130–1 perceptions of unfair treatment 34f, 35t, 36t, 39t, 60, 129 due to ethnic composition of courts 66, 69 due to previous experience of criminal courts 63 due to sentence imposed 63–4 suggestions for increasing confidence 118t, 119t Asian witnesses experiences of 106–7

views on increasing confidence 121 attitudes, change in judicial 110 Auld, Lord 6, 17 bail, defendants’ perceptions of unfair treatment 36t barristers defendants’ perceptions of conduct 35t, 36t suggested need for ethnic awareness training 124 Bench, defendants’ attitudes towards ethnic mix of 120 Bench Book 127, 130 biased treatment, lawyers’ perceptions and experience of 86–91 black barristers, racial discrimination against 4 black culture, lack of judicial respect for 5 black defendants confidence in equal treatment 71, 72, 73, 74, 75t, 76, 77–8 on ethnic mix of the Bench 120t perceptions of fairness 39–40, 74 perceptions of racial bias 37f, 38t language of the court 59 performance of lawyers 56 probation officers and pre-sentence reports 57 security staff 58 unfair sentences 44, 45, 46t, 130–1 155

A Fair Hearing? perceptions of unfair treatment 34f, 35t, 36t, 39t, 60, 129 due to ethnic composition of courts 69 due to previous experience of criminal courts 63 due to sentence imposed 63–4 suggestions for increasing confidence 118t, 119t black jurors, need for 5 black lawyers fast-tracking of 4 scepticism of ethnic awareness training 93–4 Black Magistrates: A Study of Selection and Appointment 4n black offenders likelihood of imprisonment 10 perceptions of unfair treatment 11–12 Black People’s Experience of Criminal Justice 11 Black and White Britain 10 black witnesses experiences of 106–7 views on increasing confidence 121 black youths, blanket policy of custodial sentences 3 British Crime Survey (2000) 13–14 Brook, Mr Justice 12 Cavadino, P. 93 Citizenship Survey in England and Wales 73–4 civil rights groups, campaign for multi-ethnic juries 6 Commission for Racial Equality (CRE) 5, 6 communication, need for better 128 confidence in the criminal courts for equal treatment 71–4 reports on lack of 10–11 suggestions for increasing from court staff 121–2 from defendants 117–20 from the judiciary 126–7 from lawyers 122–6 156

from magistrates 127–9 from witnesses 120–1 court staff defendants’ perceptions of unfair treatment 35t, 36t suggestions for increasing confidence 121–2 views on treatment of ethnic minorities 79–82 courts confidence in see confidence ethnic minorities’ experience of 10–14 see also Crown Court; magistrates’ courts Criminal Justice Act (1991) 8, 9 Criminal Justice Consultative Council 9 criminal justice system, racism in 3–4, 10, 13 criminal records, too much weight given to 45 Crook, F. 10 Crown Court confidence in equal treatment 71, 72t, 73t, 74, 75, 76, 77 defendants’ suggestions for increasing confidence 118t experiences of witnesses 106 overrepresentation of African-Caribbeans 7 perceptions of fairness of Asian defendants 41 of Black defendants 39–40 perceptions of racial bias conduct of judiciary 51–4 extent of 36–7, 38t fairness of sentencing comments 43, 44 language of the court 59 performance of lawyers 55–7 probation officers and presentence reports 57 security staff 58 unfair sentencing 45, 46–50 perceptions of unfair treatment 33– 4, 35 acquitted persons 62

Index due previous experience of criminal courts 62, 63 due to ethnic composition of 64– 70 due to sentence imposed 63–4 Crown Court Judges ethnic awareness training attitudes towards 92–6 views on value of 96–8 cultural change experience of advocates 114–16 judicial perspective on 108–11 magistrates’ perceptions of 111–13 research findings 130 custodial sentences blanket policy for young blacks 3 differential treatment 7–8, 9 perceptions of unfair treatment 63–4 Day, Sir M. 3 defendants interview schedule 134–50 need for better communication with 128 perspectives on unfair treatment 32–5 suggestions for increasing confidence 117–20 see also Asian defendants; black defendants; white defendants delays/procedures, perceptions of unfair treatment 35t, 36t Denman, S. 11 Denning, Lord 93 Dholakia, Lord 13 differential treatment need for new study 14–15 search for empirical evidence 6–10 towards ethnic minorities 2–6 discrimination perception of 1 see also racial discrimination disparity in sentences, perceived 42–3, 46t distributive justice 17 district judges, perceptions of unfair treatment 36t

equal treatment confidence in 71–4 defendants’ perceptions of 130 lawyers’ perceptions of 84–6 Equal Treatment Bench Book 127, 132 ethnic awareness training effect on judges 130 lawyers attitudes towards 82–4 need for 8, 124 obtaining views on 28–9 suggestions for more 128 views of Crown Court judges 92–8, 132 views of magistrates 98–100, 132 ethnic composition of courts, perceptions of unfair treatment 64–70, 131 ethnic issues, need for research into 126 ethnic minorities differential treatment concerns about 2–6 empirical evidence for 6–10 experience in courts 10–14 views on treatment of court staff 79–82 lawyers 82–91 see also Asian defendants; Asian witnesses; black defendants; black lawyers; black witnesses; black youths Ethnic Minorities Advisory Committee 8 ethnic minority judges, need for recruitment of 125, 132 ethnic minority magistrates impact of ethnic awareness training 100 need for recruitment of more 128–9 views on relevance of ethnicity 101 ethnicity, magistrates’ views on relevance of 100–4 fairness of treatment perceptions of 1–2 Asian defendants 41 black defendants 39–40 157

A Fair Hearing? compared with previous occasions 74 court staff 80–2 extent of perceived racial bias 35–9 reminder to judges of their duty to ensure 12 see also unfair treatment Fisher Report 9, 12 Hall, T. 94 Handbook on Ethnic Minority Issues 8 Handsworth riots, sentences after 3 Herbert, P. 3, 94 Hood, R. 6, 8, 14 Hood Report 6–7, 8 Indians, perceptions of racial bias 37n institutionalised racism 45 interpreters, need for more and better 126 Javaid, M. 93 judges defendants’ perceptions, of conduct 35t, 51–5, 131 ignorance of black culture and lifestyles 5 impact of ethnic awareness training 130 need for ethnic awareness training 8 on need to spend more time in the community 123–4 perceptions of cultural change 108–11 prosecution-mindedness 41 reminder of the need for fairness 12 suggestions for increasing confidence 126–7 underrepresentation of blacks in selection of 4 see also Crown Court judges; district judges Judicial Studies Board 13 juries complaints about all-white 5 defendants’ perceptions of unfair treatment 35t 158

racist complaints against 40 recommendation for multiracial 5–6 Knights, Lord 10 language of the court need for simplification 123, 132 perceptions of racial bias 59 reports of insensitivity 5 lawyers attitudes towards ethnic awareness training 82–4 defendants’ perceptions of racial bias 55–7 perceptions of and experience of biased treatment 86–91 treatment as ‘‘always equitable‘‘ 84–6 suggestions for increasing confidence 122–6 see also barristers; black lawyers; solicitors legal profession, racial discrimination 4 legalese, avoidance of 123 Mackay, Lord 8, 12 Macpherson Report 12, 33 Macpherson, Sir W. 12 magistrates defendants’ perceptions of unfair treatment 36t, 131 on impact of ethnic awareness training 98–100 perceptions of cultural change 111–13 on relevance of ethnicity 100–4 suggestions for increasing confidence 127–9 underrepresentation of blacks in selection of 4 magistrates’ courts confidence in equal treatment 71, 72t, 73t, 75, 76, 77 defendants’ suggestions for increasing confidence 119t

Index experiences of witnesses 106 perceptions of fairness of Asian defendants 41 of Black defendants 40 perceptions of racial bias conduct of the judiciary 54–5 extent of 38–9 fairness of sentencing comments 44 language of the court 59 performance of lawyers 55–7 probation officers and pre-sentence reports 57 security staff 58 unfair sentencing 45, 49–51 perceptions of unfair treatment 34, 35, 36t of acquitted persons 62 due to ethnic composition of 64–70 due to previous experience of criminal courts 63 due to sentence imposed 64 Mayhew, Lord 13 multi-ethnic juries, call for 5–6 Pakistanis, perceptions of racial bias 37n perceptions of fairness 1–2 of Asian defendants 41 of black defendants 39–40 defendant’s perspective 32–5 extent of perceived racial bias 35–9 of racial bias conduct of the judiciary 51–5 language of the court 59 performance of lawyers 55–7 probation officers and pre-sentence reports 57–8 security staff 58–9 unfair sentencing 42–51 researching conceptual distinctions 16–18 fieldwork 21–4 getting at the issue 18–21 interview schedule 134–50

obtaining views from other participants 28–30 plan of analysis 30–1 possible biases 25–7 of treatment as ‘‘always fair‘‘ 80–2 of unfair treatment in context 61 of acquitted persons 62 due to ethnic composition of courts 64–70 due to personal characteristics 61–2 due to previous experience of criminal courts 62–3 due to sentence imposed 63–4 personal characteristics, perceptions of unfair treatment 61–2 Pickles, James 93 police, treatment of ethnic minorities 33 pre-sentence reports, perceptions of racial bias 57–8 prison population, overrepresentation of African-Caribbeans 2–3 probation officers, perceptions of racial bias 57–8 procedural fairness 17 prosecution-mindedness 41, 123 Race Charter, need for 126 Race and the Courts 13 Race Issues Advisory Committee 10–11 Race and Sentencing 7, 8 racial bias perceptions of conduct of the judiciary 51–5, 131 extent of 35–9 inequitable sentencing 42–51 language of the court 59 performance of lawyers 55–7 probation officers and pre-sentence reports 57–8 security staff 58–9 racial discrimination 3–4, 10 Scott, R. 4 Scrivener, A. 4n 159

A Fair Hearing? security staff, perceptions of racial bias 58–9 sensitivity to ethnicity, magistrates’ views on 101–3 sentences see custodial sentences; pre-sentence reports; unfair sentences sentencing comments, fairness of 43–4 sentencing practice, lack of published studies 9 Shute, S. 14 Singh, G. 10 Singh, M. 4 Smellie, E. 11 Society of Black Lawyers 5–6, 11 solicitors, defendants’ perceptions of conduct 35t, 36t Statistics on Race and the Criminal Justice system (2000) 9 Taylor, Lord 12 treatment as ‘‘always equitable‘‘, lawyers’ perceptions 84–6 as ‘‘always fair‘‘, court officials’ perceptions 80–2 see also differential treatment; equal treatment; fairness of treatment; unfair treatment Tyler, T. 17–18 unfair sentences perceptions of racial bias 11, 42–51, 130–1 perceptions of unfair treatment 35t, 36t unfair treatment defendant’s perspective 32–5 perceptions of, in context of acquitted persons 62

160

due to ethnic composition of courts 64–70 due to personal characteristics 61–2 due to previous experience of criminal courts 62–3 due to sentence imposed 63–4 see also fairness of treatment The Voice 3, 4, 5, 10, 93 white defendants complaints about language of the court 59 of unfair treatment 42–3 confidence in equal treatment 71, 74, 75t, 76–7 perceptions of racial bias, security staff 58 perceptions of unfair sentences 44, 46t perceptions of unfair treatment 34f, 35t, 36t due to previous experience of criminal courts 63 due to sentence imposed 64 suggestions for increasing confidence 118t, 119t white magistrates, impact of ethnic awareness training 98–100 Windlesham, Lord 13 witnesses experiences of 105–7 suggestions for increasing confidence 120–1 women, racial discrimination 10, 40 young blacks, harsh treatment of 3

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