When I look back over nearly 80 years of life, I regard my Kapila Lecture in 1993 as the best thing I ever wrote. It was delivered to a packed audience (and the gallery was nearly full, too), and it was graced by the presence of the newish Chief Justice, Lord Taylor of Gosforth, and his wife. I include Lord Taylor’s opening remarks, not for their over-flattering remarks about myself, but because they represented a statement, loud and clear, from the very top of the judiciary, that in this area of human life the judges had a lot to learn and that they should not be too proud to start learning.
In his report on the Stephen Lawrence case Sir William McPherson had nice things to say about my lecture. In 1993 some resources were being invested in educating the police, too, but they represented a drop in the ocean compared with their overall need for training, as later events were to demonstrate only too vividly.
The Eighth Kapila Lecture
A lecture given at the Atkin Building in the Inns of Court School of Law on 18th November 2003
This lecture was published not only by the Council of Legal Education as part of the annual series of Kapila Lectures, but also by the Judicial Studies Board and in the Journal of the Judicial Commission of New South Wales, Vol 1 No 4 (March 1994) at pp 283-301.
Lord Taylor of Gosforth (Lord Chief Justice):
I am honoured to have been invited to take the chair at this 1993 Kapila lecture. I am particularly glad to be doing so at this time, because racial awareness in the criminal justice system is a very topical issue. As you will know, a series of seminars has been set up for the judiciary. They are to give special attention to the knowledge and understanding necessary to equip judges to manage fairly, cases involving members of the judiciary. The Lord Chancellor has made funds available for the purpose.
Although there has been much praise for this initiative, there has also been comment from some individuals and in some newspapers criticising it. It has been suggested that if the right candidates are properly selected for appointment as judges, there should be no need to give them special training to do justice to all manner of persons as the judicial oath requires. Others have suggested that the resources to be devoted to this training could be better spent elsewhere. I believe that these criticisms are misconceived. 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.
Patience and good manners are not sufficient to deal fairly with ethnic minorities. It is no fault of the judges that they lack the necessary training. But just as a diplomat who is to be posted to a foreign country with a totally different ambience from the UK needs instruction in the language and customs of that country, so too judges dealing with the minorities in our recently developed, multi-racial society need training.
Mr Justice Brooke has a unique claim to be giving tonight’s lecture. His provenance might have seemed to some unpropitious for the role of leader in this field. Son of a peer and former Home Secretary. Educated at Marlborough and Balliol, he had a highly successful practice at the posh end of the Bar, unlike me. He became a High Court judge in 1988. However, his work for good race relations began long ago when he was a pupil barrister. Later, he chaired the newly formed Race Relations Committee of the Bar in 1989, and he has chaired the Ethnic Minorities Advisory Committee (EMAC) of the Judicial Studies Board since 1991. He has devoted much of his time outside his judicial duties to race relations. But more importantly, he has won the respect and trust of those with whom he has worked and he has engendered enthusiasm and commitment in others, not least in the Lord Chancellor to enable the judicial training initiative to be taken forward.
The first Kapila Lecture was in 1986. The series was established by the Kapila family in memory of Krishna Dev Kapila and his son Sudarshan Kumar Kapila. Both of them were committed to fostering racial harmony. Sudarshan’s membership of Lincoln’s Inn gave the family a particular connection with the Bar. The object of the Lectures is to promote good race relations both at the Bar and in the community at large. The title of this 1993 Lecture is “The Administration of Justice in a Multi-Cultural Society”. No one is better equipped to give it than Mr Justice Brooke and I have much pleasure in inviting him to address us.
Mr Justice Brooke:
It is a great honour to be invited to be only the third white person, the second white man, and the first Queen’s Bench judge to give the Kapila lecture. It is an even greater honour to us all that the Lord Chief Justice is here to-night. I know, because so many people have told me, that the fact of his presence will send a message out from this hall that this business about training for judges on race issues isn’t just Henry Brooke on a frolic on his own: he is supported from the very top. As judges we have a duty to ensure, as best we can, that the courts are not only in fact fair – and I know there is cause for some contemporary concern about this – 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.
Two years ago I heard how the Prime Minister established his credentials when he spoke to a group of young black and Asian students and their parents in East London. He said this:
“I don’t know what it is to be black. But I do know what it is to be poor; to be unemployed; to be on the outside looking in.”
In the world of equal opportunities we often speak of double disadvantage. I have had none of the experiences of which the Prime Minister spoke, and I know that for this reason I am quadruply disadvantaged when I speak on race issues. Most of my experience is inevitably secondhand, and for this reason I am very touched that so many of you have given up an evening to come here to listen to me.
I will start this lecture by telling you five true stories. They all describe incidents which happened recently in English courts.
In the first, a white youth and a black youth were in the dock of a magistrates’ court together. They had committed the same offence together, and they had identical records. Yet they received different sentences. Why? Because the white youth looked the magistrates in the eye, while the black youth looked all over the court and seemed shifty and evasive and unapologetic for what he had done, and the magistrates believed that he needed to be taught a lesson. How do I know this? Because one of the magistrates was black and he told me this story. He is a man who holds a responsible professional job and commands great respect in his local community, but he found it quite impossible to persuade his two white colleagues that they were condemning the black youth for something which was completely ingrained in his culture. He had been conditioned from birth not to look people in authority in the eye, because this would be seen as being uppity, but to keep his eyes averted. But the two white magistrates simply did not believe this, and they overruled him two to one.
I move to the second story. The scene is again a magistrates’ court. A defendant who has all the trappings of a very strict orthodox Jew goes into the witness-box. He is asked to take the oath and asks, politely, if he can affirm instead. At the end of his evidence the magistrates do not believe him and they convict him. At a dinner party a little later one of them tells the story in the hearing of a Jewish Crown Court Recorder:
“We didn’t know whether to believe the police or not, but we looked at the defendant, and he seemed so religious, but when he didn’t take the oath he was obviously such a hypocrite that we simply didn’t believe him.”
There was rather a hush at the dinner table when he was told that some very devout Jews wish not to take the oath for fear that they may say something on oath which is not true although they were not aware that it was untrue when they said it.
For the third story I will stick to oaths but move to a different culture and to the Crown Court. A Sikh defendant had been remanded in custody and was brought from prison to court. When it was his turn to give evidence, he asked if he might be allowed to wash before taking the oath on the Sikh holy book. His request was refused, and he had to take the oath with the holy book in his unwashed hand. The jury acquitted him, and I was later told by prosecuting counsel that the case against him was so strong that the only reason he could think of why the defendant was acquitted was that there was a Sikh member of the jury who felt the defendant simply had not had a fair trial after being treated in that way by the judge.
My fourth story is a bit different. It is in a juvenile court and a 13-year old black boy is in the dock. He is accused of a street mugging, but the prosecution witnesses don’t give their evidence particularly well and the magistrates aren’t sure whom to believe. Eventually two of them decide to convict him of robbery because they haven’t been told he has got a good character, so they assume he must have a bad character and that he has done this sort of thing before. They go back to court and find the case proved, and are horrified when they hear he has got an excellent character and comes from an excellent home with excellent character references and that his two very respectable parents were in court with him. They then had to decide what sentence to give him for the robbery they had convicted him of, on an entirely false basis. It wasn’t easy. I was told this story by the third magistrate.
For my fifth story I will go back to the Crown Court. A young black man was convicted of quite a serious offence, and the judge was listening to his antecedents. He then asked prosecuting counsel: Can this man be deported? The judge had not looked at the papers. If he had, he would have seen that the defendant had been born and brought up here and knew no other home. It was a question which should never have been asked, and it sent a very unhappy message to all the black people in court. They all knew that the question would not have been asked if the defendant had not been black.
All these stories have three features in common. In each, something went seriously wrong in a court of justice. In only one of them did the court do something as a matter of law which it had no business to be doing: guessing at evidence which it had not received. In each story, the person who was disadvantaged or hurt by what had happened came from a different cultural background from those on the bench. And in each, serious mistakes were made by well-intentioned, well-educated people in good faith, in ignorance that what they were doing was wrong. And from all I hear innocent mistakes like this are often made in our courts to-day. At one end of the spectrum they merely cause hurt, sometimes great hurt. At the other end they may cause serious injustice.
As some of you know, for two and a half years I have been heading a new committee of the Judicial Studies Board called the Ethnic Minorities Advisory Committee. Before that, I spent three years leading the Bar’s Race Relations Committee, and six years ago, when I was one of the leaders of the Bar, I chaired the main committee of the Bar Council which services the Race Relations Committee and fought to promote its policies on the Bar Council. So although I still regard myself as a complete amateur in these things, I have been listening for seven years now to intelligent black and Asian people, and people from other non-white backgrounds, as well as to many thoughtful white people, telling me a lot of things, and a lot of uncomfortable things, about the way our system of doing justice is viewed by many people from ethnic minorities in this country. This is why, when I was invited to give this eighth Kapila lecture, I thought it might be useful and interesting if I tried to articulate a little of what I have seen and heard and to share a few thoughts with you.
Ten months ago, on a foul January evening, I talked to about a hundred Inner London magistrates at the Southwark Crown Court. I told them something of the kind of things I will be telling you about, and I think I struck a chord with many of them. I remember in particular one very experienced black woman magistrate standing up soon after I had finished talking and saying how pleased she was that these issues were now being addressed with the seriousness they deserved by senior judges. But what do I do, she asked me, when one of the chairmen of the bench with whom I sit, who has been told repeatedly that most black people don’t like being called “coloured”, always replies
“I’ve always called these people coloured, and I’ll always go on calling them coloured.”
Much later in the evening a Scottish JP said that his countrymen were different from the English, but they’d done their best to integrate. He asked how long would they have to go on having training events like this alerting them to differences in culture and the risks of discrimination. He got a devastating answer, not from me, but from a black JP:
“But you don’t know what it’s like to be black.”
I, too, don’t know from personal experience what it is like to be black. But I can give you one insight into what it means. My advisory committee, EMAC, has a white chairman and a black vice-chairman. We are, I believe, about the same age, and we both live law-abiding lives. We know each other’s thinking on issues of race and we speak on behalf of EMAC with one voice. We conducted EMAC’s first press conference together and we travelled to Canada together last March for nine days on behalf of the Judicial Studies Board to study training methods there. I have a direct reporting line to the Lord Chancellor. He has a direct reporting line to the Home Secretary. I have been stopped by the police once in the last ten years. In the same period he has been stopped 34 times.
I have witnessed more than once the gasp which comes from circuit judges and recorders at training seminars when he tells them this. And it is this personal experience which enables him to bring to life far more vividly than I ever could the attitude of many young black people – and many not so young – to what appears as an indivisible criminal justice system which they see to be unfair and biased against them. I will come back to this question of attitudes and perceptions a little later on.
I am not sure whether many people realised just what was happening when the Judicial Studies Board created EMAC. Any form of training for judges is a comparative novelty in this country. For a judicial body to invite outsiders to form most of a committee whose only function was to advise on part of the training provided for judges and for others who have responsibilities for administering justice was radical. For the majority of that committee to be black and Asian men and women was revolutionary. It was a far cry from the dinner which is announced in the edition of The Times which recorded the news of the Battle of Waterloo. It was the anniversary dinner of a society led by William Wilberforce, which was concerned to encourage greater understanding of African and Asian people in this country. The white, all-male, members of the society were to meet for dinner in one room. About a hundred Africans and Asiatics, The Times reports, were expected to dine in an adjoining room. Now we were all round one table, and seven highly intelligent black and Asian women were there as well, and that is as it should be.
One cannot, in my view, deal intelligently with race relations issues to-day without understanding something of the past. We must not, on the other hand, let the grisly spectres of the past rule our behaviour now like those medieval causes of action with their clanking chains of which Lord Atkin, that great English judge after whom this hall is named, spoke 50 years ago in a very different context. And some of the spectres are pretty grisly. An Englishman like me, brought up 50 years ago in a Christian home and educated at Christian schools, used to sing, patriotically and fairly unthinkingly, hymns like Kipling’s Recessional which spoke of “such boasting as the Gentiles use, or lesser breeds without the law”; or memorise the Collect for Good Friday in the Cranmer prayer book which refers without differentiation to Jews, Turks, Infidels and Heretics.
Someone, on the other hand, brought up at the same time like the Lord Chief Justice in Newcastle-upon-Tyne, may remember a large picture painted by Daniel Maclise in 1852 which hangs in the Laing Gallery there. Its subject is Alfred The Great Disguised as a Minstrel in the Tent of Guthrum the Dane. Alfred is doing a bit of do-it-yourself intelligence work in the enemy camp. He has very light skin and is dressed in a flowing white garment with light-brown centrally parted hair and a tidy beard of the same colour as his skin. A bit like contemporary pictures of Jesus Christ. The Scandinavian Danes on the other hand, 120 years before we became fellow members of the EEC, are portrayed lying around in attitudes of drunken abandon, gambling and womanising, dark-skinned and black-haired and accoutred in an oriental manner. The connotation between white skin and intelligence, resourcefulness and virtue stands out a mile.
Another contemporary echo of the same attitude to people of different cultures can be seen in Thomas Macaulay’s diary entry for 1st May 1851 where he describes his visit to the opening of the Great Exhibition. He first comments, inevitably, on the weather. He then says how struck he was by the number of foreigners in the London streets. “All, however” – please note the word “however” – “were respectable and decent people”. A contrast, no doubt, to the human chimpanzees whom the Christian divine, Charles Kingsley, noted in the villages of Ireland in 1862, as Sonny Ramphal reminded us in the third Kapila lecture. We all know that this attitude to people of other races, white and black, has been for many years a part, if a decreasingly prominent part, of the Englishman’s cultural baggage, and it is silly to ignore this. If this is permitted in a Kapila lecture, one might describe it as the “wogs begin at Calais” syndrome.
That is one set of spectres. I was reminded of another when I went to a meeting two years ago with a number of probation officers, black and white, who were concerned with matters of mutual interest in the field of race relations in Merseyside. Towards the end of the meeting a senior black probation officer told me how he could never forget how much of the wealth of Liverpool had been built up by the merchant ships; those ships which carried manufactured English goods, including 350,000 guns a year, to the West Coast of Africa on their outward journey, and later brought cotton and sugar and tobacco from the Caribbean and the southern states of America to England on their way home. On the infamous middle passage across the Atlantic they carried black men and women and children all squashed together in their holds in conditions not fit for cattle. It has been said that in the two hundred years of that particular slave trade more than 11 million black people survived the journey, and that up to the same number again died en route between their homes in the hinterland of Africa and their journey’s end in the New World, either on land or in the holds of the slave ships. I knew exactly what he was talking about and how he felt.
As I have said, we must not let these spectres haunt us. Guilt-complexes are not a sound basis for the creation of policy to-day. But it would be wrong and unwise to forget them completely. It is not possible otherwise to understand the disillusionment which so many black people experienced in this country in the years after the war. They had fought the war with us, and their services were now actively sought by us, to work on the buses and in the underground and in the hospitals. But when they looked for places to live, they saw the signs “no Blacks here”. When as Christian people they went to our churches they were unwelcome. And when they walked about in the streets they met racial abuse, if not hatred. A Nigerian-born barrister lent me recently a book written by a friend of hers, now in her 50s, which describes very vividly just what it was like to live as a young black woman in London during the years which eventually led up to 1981 and the Brixton riots and Lord Scarman’s report. Many people in this audience will have shared those experiences.
I remember watching the two medal-winning black American athletes at the Mexico Olympics in 1968 raising their arms in the Black Power salute and thinking then that it was rather poor form. Now that I am 25 years older – and wiser – I understand much more clearly why they did it, and my reaction to a similar incident to-day would not be nearly so rapid.
I tell you these things because when I and the members of my committee met for the first time in July 1991 I knew that all the black and Asian men and women there would have experienced more than their fair share of discriminatory treatment in their time from white people in positions of power in this country, and I knew they knew that I knew it. One of them, Kamlesh Bahl, who is a member of the Law Society’s Council, talked about this recently when she was appointed in her late 30s to head the Equal Opportunities Commission. She described the double discrimination she encountered more than 15 years ago, first as an Asian and then as a woman, when she began to try to earn her living as a lawyer in this country. I have heard the same story all too often over the last seven years from black and Asian barristers of her generation.
But none of these matters were mentioned at that first meeting. Instead, everyone told me how much time would have to pass before they could give any very useful advice to us at all. There was no way, they said, that they were going to go upfront at conferences and seminars straightaway to tell people who were doing a very difficult job how they ought to be doing it better. Instead, they needed to learn much more about what they called the culture in which judges and magistrates do their work, and to identify the areas in which their advice and help would be of most value. In the meantime, while all this learning and thinking was going on, they told me that I had to accept every single invitation which came my way. My mission, they said, was to get more people to realise how difficult it is to administer justice fairly to people of other cultures from one’s own, to listen carefully to what everybody had to say, and to bring back to them the requests for help I received from those who realised just how much they had to learn.
So now, in this Kapila lecture, I am speaking to you as the veteran of about 50 conferences and seminars on ethnic minority issues connected with the administration of justice. What I have learned above all from that experience is about three great risks that are caused by ignorance. The risk of creating offence and hurt through ignorance of important things which are very personal to people. The risk of doing injustice, of getting things badly wrong, through ignorance of important things about people’s cultures, or about body language, or about the danger of other communications breakdowns, And the risk of doing injustice through ignorance of the potency of sub-conscious discrimination.
“I do not like you, Dr Fell; the reason why I cannot tell; but this I know, and know full well; I do not like you, Dr Fell.”
When Lord Taylor and I first started to practise at the Bar all those years ago, the number of people from ethnic minorities in English courts was very small, and for fairly obvious reasons nobody bothered much about things like this. Judges and magistrates could be trusted to be fair, and they were administering justice, on the whole, to people who came from the same cultural, if not the same social, background as they did. It is only in recent years, when we have become in every sense of the word a multi-cultural society, that it has become so important to be alert to the dangers I will be talking about.
There are now 840,000 people of Indian origin in this country. About half a million of Pakistani origin, and about the same number of people of black Caribbean origin. 200,000 black Africans. 200,000 Chinese. 160,000 Bangladeshis. And many more from different cultures, including people of mixed origin, making up over 5% of our national population. In some inner city areas the proportion is 20% or more. The Judicial Studies Board now recognises that it is essential to equip all judges and magistrates with a basic amount of knowledge and understanding if they are to be seen to be administering justice fairly to people with whom they have little in common in terms of upbringing, culture and experience. I always end my talks to judges by reminding them of something Philo wrote in the first century AD: “When a judge tries a case, he must remember that he is himself on trial”. Now that the difficulties are better known, we have been deluged with requests for help and advice.
This all started four years ago when the Lord Chancellor spoke to the Magistrates’ Association. He said this:
“We know that rightly or wrongly – and there does not appear to be any conclusive evidence on these matters – there is a strong sense of injustice amongst black people about the way they are treated in the criminal justice system.
I know that magistrates feel that they are unfairly criticised in this respect and naturally react strongly against the suggestion that they consciously discriminate against black defendants.
Offence may sometimes be caused not because we are prejudiced but because amongst people of good will it is much more likely that in many situations we are totally unaware that others view our particular actions as prejudiced. We need to inform ourselves on these matters as well as we can.”
That was in 1989. The process of informing ourselves better has accelerated since EMAC was formed. Things were obscured then by the absence of straight lines of communication and by an approach to these controversial, sensitive issues which was often confrontational. The main issues have now become a lot clearer.
I go back, then, to the three risks of which I spoke. The first great risk is the risk of causing offence and hurt to people about things which are very personal to them. By this I mean the way they prefer to be described, the way their names are used, or things which are very important to them in the context of their religion or their culture.
Take the way people prefer to be described. Suppose that I, a white man, living as a member of a visible minority in a country most of whose people are of a different colour, genuinely do not like being described as “pink” although that is a description which was generally acceptable to me and other white people a generation ago. Because I am in a minority, I am a bit frightened of the system of criminal justice which is run by the majority, and a number of well-documented incidents make me feel that I am right to be a bit frightened. I believe that it is now pretty well known that I dislike being called pink. I find it very offensive. But whenever I am brought to court, the advocates, including my own black advocate, insist on calling me pink, and so does the judge, and nobody thinks of asking me whether I mind, and I feel very hurt and alienated by what is going on.
The reverse side of this coin is repeatedly seen in our courts to-day. Most black and Asian people under the age of 40 genuinely dislike being described as “coloured”, and the description “half-caste” is even more violently disliked by nearly everybody of mixed origin. Although the move to make black people proud of being black may have been political in origin, the advice we are now giving to judges and magistrates has very little to do with political correctness. It is just a question of showing respect to the way in which people like to hear themselves described.
Sometimes this advice is greeted with genuine surprise. Recently a crown court recorder, who is a QC, told me that one of the defendants in a high profile trial conducted by a senior judge had been described as “the half-caste” throughout. I asked him if anybody had asked this defendant if he disliked this description. He did not know. If the incredulity is maintained, I quote a recent survey conducted among over 200 black and Asian teenagers at different schools in Kirklees, West Yorkshire. There is not a hint in any of the answers that any of them wished to be described as “coloured” or “half-caste”.
Names also cause constant problems in court. If the Lord Chief Justice or I were appearing as the defendants in a court overseas, and we were consistently described by the advocates and the judge as “Mr Peter” or “Mr Henry”, or still worse, “Peter” or “Henry”, without being asked whether we minded, we would feel pretty alienated from what was going on. We would think that if people in court can’t even address us properly, or if they talk about us familiarly without our permission not realising what they are doing, there would be precious little chance of their understanding what was going on in our minds at the time we did the things we are accused of doing.
This is not an easy subject. Hindu and Sikh and Muslim and Chinese and West African naming systems are complicated. And what makes things more complicated is the way in which as settlement proceeds, second and third generation settlers often abandon the traditional naming systems in their cultures and adopt British practices on the basis that “if you can’t beat them, join them”.
I’ll give you a simple example. When we started our work a number of judges who had served in India and were familiar with strict Sikh naming systems, took the opportunity of venting their frustrations to me. They told me that they knew that every Sikh man had the religious name “Singh”, which means “lion”, and every Sikh woman had the religious name “Kaur”, which means “princess”. These are the middle names, as in Karamjit Singh Gill or Jasminder Kaur Grewal, but because they are religious names they should never be used alone as in Mr Singh or Mrs Kaur, or in a court list “Singh v. Kaur”.
But this advice would be much too simple in England to-day. A lot of people here have changed and adapted the way they use their names, and there are many Sikhs in England to-day who don’t mind being described like this, because this is the way they now prefer their names to be used. On the other hand, there are those who do mind, in the same way that there are strict Asian Muslims who mind intensely if they are described in court by their religious name alone, such as Mohammed or Ullah. And sometimes ignorance about naming systems moves on from the first great risk, of causing offence, to a worse great risk, of tending to cause injustice. This may happen, for instance, if white policemen and advocates and judges don’t understand a West African naming system whereby the same person may have four different personal names – a Christian or Muslim name, a name given after a relative or friend, a birth-order name, and a day-name (like Kofi for Friday or Kwame for Saturday) which corresponds to the day of the week when he or she was born. I have seen cases where West Africans are wrongly accused of using false aliases when they are simply being referred to quite naturally in different contexts by one or other of their different personal names.
All this year my committee has been trying out a new draft Names and Naming Systems paper which gives some fairly basic advice on all these things. It has been enthusiastically received by judges who know how difficult some of these problems are, and next month a copy will be sent to all full-time and part-time judges in England and Wales and to all the magistrates’ courts committees. The paper is quite complicated, but the advice we give is simple: “If in doubt about a name or how it is pronounced, ask.” In this way unnecessary offence can always be avoided.
Oaths are something else which many people take very seriously, and where mistakes about oath-taking are made through ignorance all too often. You will remember that one of my five stories concerned a Sikh who was constrained to touch his holy book without first washing his hands. When we first looked into these matters two years ago, we discovered that there was no advice at all being given to staff in the county court; in the magistrates’ courts the advice, where it existed, was all over the place; and in the Crown Court advice. Muslims were described rather quaintly as Mohammedans and the advice given about Buddhist and Chinese oaths was just plain wrong. I learned from Chinese people that it was in the far off days of Imperial China that the old oaths which involved breaking a saucer or slaughtering a cockerel were used. Presumably British administrators thought that saucers were cheaper than cockerel, and their demise was less messy. To-day, I am told, it is only the Triads who use these oaths, yet the saucers oath for Chinese witnesses still formed standard advice in every Crown Court in the country.
As you may know, we decided to publish some written advice on Oaths and Oath-Taking last year and on the whole it has been very well received. I have been told about an usher in a country magistrates’ court who went out and bought a copy of the Gita with his own money as soon as he realised that any Hindu witness in his court would feel as if he was being treated like a second-class citizen because the court, for understandable reasons, did not possess a copy of his holy book. Two months ago I read about a complaint in the Gujarati Press by a Hindu woman who lives in an area of West London with a sizeable Hindu population because her local magistrates’ court did not have the Gita. When I inquired, I learned that there were three courts at that centre which had only one copy of the Gita between them, and she had appeared in one of the two courts which did not have one. However, because of our initiative two more copies of the Gita were in fact on order at the time of the complaint.
I hope that soon in every court in the country there will no longer be the embarrassment caused to Muslim women who are forced to explain in open court that they are having a period and therefore cannot take an oath on the Koran; or to Hindus, Sikhs and Muslims who have to watch their holy books handled in court with bare, unwashed hands by those who do not share their religious beliefs.
My other story about oaths, the one about the strict orthodox Jew, shows how ignorance about these things may cause not only great personal offence, which is bad enough. It may also lead to injustice. The magistrates jumped to the conclusion, quite wrongly, that the witness was a hypocrite through sheer ignorance.
There is also the risk of causing offence unwittingly through ignorance of other people’s cultures. A Crown Court recorder told me that when he was just about to start the re-trial of a black defendant, the court usher came into his room rather nervously. He said that there had been no end of trouble throughout the first trial because the judge had insisted on the Rastafarian defendant taking off his green, red and yellow hat in court, and would His Honour mind if the defendant kept his hat on during the re-trial. His Honour said he didn’t mind any more than he hoped the defendant wouldn’t mind him having a rather unusual eighteenth century horsehair contraption on his head. The difference between these two judges was that the second knew something about the symbolism of the colours of the Rastafarian’s hat, the national colours of Ethiopia, and the first knew nothing about these things.
Another way in which ignorance may move from just being seen as silly or offensive to being a potential cause of injustice is in relation to people’s family systems. The other day, in an English court, a black grandmother told the court she would willingly move down and live in her daughter’s home to look after her granddaughter if the court was worried about her daughter’s ability to care for her child. To someone of that culture it was the most natural thing in the world for a grandmother to treat her child’s child as her own child. This is what the extended family, so familiar in many cultures, is all about. This is why so many black children stayed with their grandmothers in the Caribbean in the 1950s and 1960s while their parents strove to build a new home for their family in this country. But this very natural phenomenon was not understood by everybody in that court. A white advocate put it to the grandmother that there must be something wrong with her own marriage for her to want to leave her husband in order to go and live with her grandchild for a while. Fortunately, on this occasion there was also a black advocate in court who was able to stop things going seriously wrong.
The scale of ignorance about what the extended family is all about was brought home to me in a vivid way last year. My committee hears plenty of stories from black and Asian families about the heartache which is caused because English courts and English advocates and sometimes English social workers do not understand things like this, and children are taken away from their natural parents into care although there are plenty of members of the extended family willing to give them a loving home. Yet when I asked members of the Family Law Bar through their newsletter to tell me of examples, for training purposes, of cases where things were going wrong in English family courts through ignorance I did not get a single reply.
I move now to the second area of great risk, where ignorance may tend to cause injustice. The story of the Jew who was not willing to take an oath is one example. The story of the black boy whose eyes flashed all around the court is another. I have now watched three training videos, two from Canada, and one from this country, which bring home this point vividly. You may be interested to know that every Canadian judge now receives a video giving tips on race issues and another video giving tips on gender issues on his or her appointment to the Bench. The English training video, which is called “Evidence Unseen”, gives another example. It shows a young black man bridling angrily when he is picked on unfairly, and the young policeman misunderstands the body language and thinks he is being threatened with violence. And so a chance encounter escalates, and a bench of white magistrates, who may know nothing about the young black Caribbean’s body language, has to adjudicate about the rights and wrongs of this incident in a court of justice.
Those are examples of the risks of injustice through ignorance about body language. Justice, too, may be at risk, because of failures of communication with the spoken word.
A recent, vivid example of the dangers to justice is contained in a judgment of the Privy Council at the end of July 1993 in a case from Mauritius. The defendant had been found guilty of drug trafficking and was condemned to death. The proceedings in the court below were conducted in English, a language which he did not understand, and the court interpreter translated to him not one word of the evidence. Indeed, in a short statement from the dock the defendant said in his own native tongue:
“Two or three gentlemen deponed in Court. I have not understood what they said”.
Although this statement was translated into English, the trial still went on. The Privy Council set aside his conviction and refused to apply what we call the proviso because the defendant had been deprived of his right to a fair trial.
A well-known English parallel is the case of Iqbal Begum. She had pleaded guilty to murdering her husband and was sentenced to life imprisonment. Four years later, in 1985, the Court of Appeal decided that the original trial had been a nullity, because there had been a fundamental breakdown in communication between herself and her lawyers. Lord Justice Watkins, giving the judgment of the court, said that the court was driven to the conclusion that the reason why she had remained silent during a lot of police interviews was because she was not being spoken to in language which she understood. The members of the court were in so much doubt that she understood what was being said to her at crucial times that they felt bound to come to the further conclusion that they could not possibly feel sure that when she pleaded guilty to murder she understood all the implications of what she was doing. Her solicitors and counsel are said to have failed to realise that the interpreter they were using did not speak the same dialect as their client, who had come to England from a remote rural area of Pakistan.
Those are two dramatic examples. But I hear repeatedly of other cases where justice is at risk. Polite answers “yes” or “no” to convoluted questions of the type that only an advocate can ask, which contain three different propositions in one. Or answers where witness, advocate and court fail to spot that the witness whose original home was overseas is using words in the English language which mean to him different things to what they mean to the English questioner. I often quote in training talks the story Len Woodley, the black silk, told me about a very contentious murder trial at the Old Bailey over 20 years ago. Len’s client had also come from Trinidad, and he had told the police that something had happened in the afternoon. The prosecution could prove that it happened at 7pm. As a result prosecuting counsel accused the defendant of being a liar, and at one point the judge joined in too. Fortunately on that occasion there was a Trinidad-born lawyer in court who knew that in his home country the afternoon goes on deep into what English people would call the evening, and the risk to justice from a fundamental misunderstanding caused by the use of words was averted.
And now I move on from the risks of offence and the risks of injustice to the risks of unfair discrimination. Here the gulf of understanding between black people in the inner city streets and white people in authority is at its widest, and the potential for unproductive confrontation is at its greatest. It is the kind of dialogue of the deaf I often witnessed during my two years as Counsel to the Sizewell Inquiry when I had a similar task of building bridges of understanding between people with deep-seated convictions who often did not want to listen to what people on the other side of the argument had to say.
I saw a vivid example of this 18 months ago. An experienced black researcher called Eric Smellie had carried out a study based on discussions with 24 black people and 28 white people who had been in trouble with the law. The results were bound to be impressionistic, but one striking conclusion of the survey was that the white interviewees’ perceptions of the way the court processes seemed to be biased against black people largely coincided with what the black people had told the interviewer. Because of what I have heard and read over the last seven years I was not particularly surprised by what I read.
The results of this study were published, and in February 1992 I chaired a seminar in the Middle Temple at which Eric Smellie spoke. There was a party afterwards, and a number of thoughtful, fair-minded judges and recorders, who had spent all their working lives in the criminal courts, told me how genuinely shocked and surprised they were by what Eric had told them.
Six weeks later I was on circuit in Birmingham. One day when my list ended early I visited the black cultural centre in Handsworth which is funded by the probation service. I was told that Eric had spoken there recently and that the reaction of his black audience was:
“Eric, why are you wasting our time? We know all this already.”
Those who heard Jerome Mack, the black American, give the fifth Kapila lecture, will remember the distinction he drew between the prejudiced discriminator, the non-prejudiced discriminator, the prejudiced non-discriminator and the non-prejudiced non-discriminator, a paragon of virtue who did not exist in human form. He described how modern society, and particularly Western society, conspires to give all of us prejudices about each other all the time. Two years earlier, in the third lecture Sonny Ramphal reflected that “race” is at heart “otherness”. By this he meant a view of another individual which wrongly sees him or her as “the other”, alienated from the observer by perceived or imagined differences, without shared human qualities. He added that when the question of colour is introduced, it merely becomes a new and potent factor in distinguishing between groups of people, in identifying the types of behaviour expected of them, and in influencing perceptions. We need to recognise that this is all part of the human predicament.
Nearly all the sentencing studies I have read – and I have read a great many of them – suggest that once you have peeled off the obvious reasons for differential treatment between white and black offenders – the seriousness of the offence, the past record of the offender, any obvious aggravating factors, and any obvious mitigating factors, including the discount for a plea of guilty – there remains an unexplained residuum of differential treatment which cannot be so easily explained. There are a few pages of detailed findings in Dr Roger Hood’s recent study which make this point very clearly. For one big crown court centre, he plotted what he called the “expected risk of custody” against the actual outcome, taking into account a lot of different variables. The line on the graph which plots risk against outcome at that centre is more or less a straight line for black and white offenders alike, from 0% risk and nobody being sent to custody, to 100% risk and everybody sent to custody. When he did the same exercise, however, for a different group of four crown courts, the results were similar for the white sample, but very different for the black sample. At 0% risk, 30% of the black defendants were being given custodial sentences. At 20% risk, 60% were sent to custody. The line on the graph dipped at 30% risk to 50% sent to custody, but rose again at 40% risk to nearly 70% being sent to custody. Neither I nor anybody else know all the reasons for these findings, and Dr Hood was not allowed to discuss his work with local judges as his study proceeded.
I believe that it would be very unwise to jump to any very firm conclusions as a result of a single study, or even as a result of more than one such study. But I have not the slightest doubt that there is something going on, at each stage of the criminal justice process, which tips the scales on some occasions against some black people, and if the same people receive this detriment at different stages of their experience of criminal justice agencies, the effect will be compounded and will lead to the alienation which we so often see on our television screens in major cities of the United States to-day. This is why teaching about some of the risks I have been describing to-night is so important. However, the teaching is not easy, because fair-minded people are so very easily offended at the very slightest suggestion that they have behaved in a way which other equally fair-minded people might describe as racist.
When we started our work, we encountered the walking wounded of a number of past training events at which magistrates felt unjustly bruised by suggestions that they might have been less than fair, and some branches of the Magistrates’ Association had resolved never to try and handle such a controversial subject again.
Those who have read our first EMAC report will remember the writer from a law centre who wrote about the racism the ethnic minority clients of that centre faced. He distinguished between what he called malicious racism, which was extremely rare in the legal system, and the racism which arises as a lack of understanding, ignorance and misinformation, which can be addressed by education. Far too often this crucially important distinction is not made, and fur and feathers fly in high places because of misunderstandings about the use of language.
I hope and believe that the patient work which EMAC and the Judicial Studies Board and many other responsible agencies are now doing is now helping to break down these barriers of confrontation and hurt which occur when people who pride themselves on being fair-minded are invited to wonder whether on occasion they may have discriminated unfairly, however unwittingly, against other people because of their race. One young stipendiary magistrate has told me that he is now so well aware of the risks of unconscious discrimination that before he passes sentence on a black defendant he always carries out the mental check of asking himself whether he would have passed the same sentence on a white defendant.
My other two stories were about this kind of thing. The judge who would never have dreamed of asking of a white defendant if he could deport him without first looking at the papers. The magistrates who would never have dreamed of convicting a tidily dressed 13-year old white boy of robbery by jumping to the conclusion that he had a bad record.
I often bring to life this business of otherness – what some people call the black stranger syndrome – by telling a story of something which happened at a magistrates’ training event about five years ago. The magistrates were asked to give their impressions of two people who came into the room and talked to them for a minute or two. The first was a white English undergraduate wearing a collar and tie. They all knew at once the sort of person he was and the social background and education he probably had, even down to the fact, as one headmaster JP put it,
“That young man hasn’t looked as tidy as this for years”.
With the other, they were all over the place. She was a middle-aged Asian woman wearing a baggy top and trousers in a very pretty liberty cotton in soft colours. They did not know her age, where she came from, what sort of social background she had or what kind of job she might have. She was in fact a college lecturer who also served as a magistrate. Eventually they worked out between them that she must be a person of excellent taste and some wealth. At this description the other Asian woman JP in the room got the giggles and said that only a very eccentric Sikh woman would dress like this.
A psychologist has said that when people are unable to perceive clearly, they tend to make inferences from their immediate perceptions by using their reason or their imagination. Inevitably the general cultural background which each of us possesses tends to colour the way in which we reach our conclusions, so that these conclusions may be quite disastrously wrong. But these are not very easy concepts to explain to people who are not psychologists. I remember that when I was told by a behavioural scientist that this all had a lot to do with a well-known phenomenon called ethnocentrism, I told him that he was quite free to try to explain this to a room full of judges, but I wasn’t going to try. On the whole, I stick to simpler language which I and they both understand.
EMAC and the Judicial Studies Board are not alone in this work. As a judge I was unable to take any active part in the Bar Council’s campaign to get its concerns about the dangers of racial discrimination written into the Criminal Justice Bill 1991. But I remember the delight with which the Bar’s Race Relations Committee greeted the news that what is now Section 95 was included in that Act. As you may know, this section places on the Home Secretary the quite novel duty of publishing each year such information as he considers expedient for the purpose of facilitating the performance by persons engaged in the administration of justice of their duty to avoid discriminating against any persons on the ground of race or sex or any other improper ground. This is the first time that this duty, which I think everybody in authority took for granted without being really conscious of the risks I have been talking about, was written into an Act of Parliament, and I believe that its presence there was a symbol of Parliament’s concern about the uncomfortable things which Baroness Flather, an Asian peeress, and others were telling it as the Bill went through the House of Lords on its passage into law.
The existence of this statutory duty means that we will all be getting information in a much more structured way from the Home Office’s statisticians and researchers in future to alert us to the risks of unfair discrimination. I hope that in due course the Home Office may move some of its thinking, in collaboration with the Judicial Studies Board, away from booklets towards the preparation of well-balanced training videos on race and gender issues after the Canadian model, because these are likely to put the message across to judges and magistrates much more effectively than the written word.
I am not going to tell you to-night about any of the other statistical and research evidence which tends to suggest that some unfair discriminatory treatment is going on in different parts of the criminal justice system. Many of you know this evidence, and I have spoken about it on other occasions. Some of you will remember that this topic formed the subject of Vivien Stern’s memorable fourth Kapila lecture in 1989. When I have discussed our experiences in this country with judges from Canada and the United States, from Australia, France and Germany and the Netherlands, they all tell me they see comparable things happening in their own countries, with people from ethnic minorities suffering detriment within their systems of criminal justice to a greater extent than their numbers or their criminality would appear to warrant. The more work that is done by people of good will in trying to understand this phenomenon on both a national and an international basis the better will be the chances of building systems of criminal justice which everybody, black and white alike, regards as fair.
And now I have come to the end of what I have to say. Nobody who was there will ever forget the end of Vivien Stern’s Kapila lecture when she spoke movingly of a chance conversation she had with a young Jamaican in the street after she had come away from meeting young prisoners on death row in St Catherine’s Prison.
He asked her where she came from, and she said “England”.
“My mother is in England”, he said; “She says people in England don’t like black people. They treat them badly. Why is that?”
“I am not sure”, she said; “It goes back a long way”.
“What are you going to do about it?” he said.
There was a long pause.
“Just remember every day that racism has to be opposed wherever it crops up, and however embarrassing and difficult it is to do so”, she said. “I can’t think of anything else. Will that do?”
“Yes, thank you”, he said, very generously she thought. “That will do”.
The debt we all owe in this field to Vivien Stern and her colleagues in NACRO is quite incalculable. But I do not think she would take it amiss if I end this lecture on an upbeat note. The members of EMAC and I are not opposed to anything in the difficult work we have been asked to do. Our purpose is a positive one. It is not very far away from the purpose of the Kapila Fellowship Lecture, which is to promote good race relations and understanding both at the Bar and among the public at large. When I and my EMAC colleagues, and the others who are now helping us, black and white alike, go to training events for judges and magistrates, to take part in talks and discussions and workshops in small groups working on prepared case material we go in a spirit of optimism as equal partners in an educational venture the like of which has perhaps never been attempted in this country before. I never had the good fortune to meet either of the members of the Kapila family who gave their name to these lectures. But I have been lucky enough to have attended all the seven earlier lectures in this series, so that I know what they are all about. And I like to think that our work is work of which Krishna Dev Kapila and his son Sudarshan Kumar Kapila would have approved.
 I had been present when the Prime Minister, the Rt Hon John Major MP, had attended a graduation ceremony organised by the Windsor Fellowship in 2001.
 “Let the slave go free…” Britain, the Commonwealth and the Common Law, the Third Kapila Lecture, delivered by Shridath S Ramphal, Commonwealth Secretary-General, on 15th December 1998
 Philo, Special Laws.
 Kunnath v The State  1 WLR 1315.
 R v Iqbal Begum (1985) 93 Cr App R 36.
 “Equal Opportunities – An Idea Whose Time Has Come”, the Fifth Kapila Lecture, delivered by Jerome Mack, Managing Director of Equality Associates, on 23rd October 1990
 Roger Hood, Race and Sentencing (Oxford, 1993).
 “Racial Inequality in Criminal Justice – an International Pattern”, the Fourth Kapila Lecture, delivered by Vivien Stern, Director of NACRO, on 28th November 1989.
4 thoughts on “The 1993 Kapila Lecture”
A wonderful lecture, a credit to you and part of the Kapila family’s fine legacy to the law.
The Kapila lecture used to be the Kapila essay prize. I was fortunate enough to win it in 1985, when the assigned topic (rather a minority interest in those days) was “Human Rights and the British Constitution”. I still have the handwritten letters of congratulation from the judges, Bingham J and Nicholas Phillips QC as they then were. Middle Temple produced a bound copy for its library. But the greatest pleasure was a celebration party at the Kapila family home in London: for me, a first encounter with British Asian hospitality.
My pride in this achievement was rather tempered by the subsequent discovery that mine had been the only entry for the prize! Hence the change of format in the following year, from which much good followed.
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