I am now in the process of responding to the Consultation Paper issued by David Lammy MP in the course of his study of the treatment of Black and Minority Ethnic people within the criminal justice system.
Many of the issues he raises are identical to the issues with which I had been grappling, with the help of the expert committees I led, over 20 years ago, so I thought it would be useful to republish this lecture I gave to a well-informed multi-disciplinary audience in London towards the end of my work in this field.
I see that I ended that lecture by saying:
“People are entitled to fair and understanding treatment from everyone in our criminal justice agencies, from the courts downwards. In the past, I think too much emphasis has been placed on the need to ensure that they do in fact receive fair treatment, and not enough on the need to ensure that they, too, believe they have been treated fairly. We saw in Los Angeles what happens when large parts of a city believe that a court has been unfair. We have had comparable crises of confidence, although not directed at the courts, over here in the last 15 years, in places like Brixton and Handsworth and Toxteth and Tottenham, and it would be absurd to think that we have put our house in order just because we have not had a major riot for some time. But a lot of progress is now being made to take these issues seriously in all parts of the criminal justice system, and I am encouraged to think we are now getting somewhere. The challenges remain immense, but an increasing number of us now think we are travelling quite hopefully.
It would be good if David Lammy’s important work did much to re-emphasise the continuing importance of taking these issues seriously.
The Fifth Eve Saville Memorial Lecture at King’s College, London on 6th July 1994
I feel very honoured to have been invited to give this fifth lecture in the annual series of lectures in memory of Eve Saville. In the recent history of ISTD Eve was described as the administrator, manager and general factotum of the Institute for some 30 years: and she was of course General Secretary from May 1959 until her death in February 1986. The topic of my lecture to-night may seem to stray quite a long way from the aims of the founding fathers – and mothers – of the Institute which she served so well for such a long time. But I am comforted to see among ISTD’s present aims the statement:
“Crime in Britain is a problem for us all and challenges us to work together for an effective, efficient and fair system of criminal justice.”
It is the courts that send delinquents to custody, and if the courts are not seen to be fair by a significant part of their clientele then there is something quite seriously wrong with that system.
I am not, and never have been a psychiatrist, a criminologist, a social worker or a prison visitor. I am just a judge, and if I have my own views about the causes of crime and delinquency, they are merely the views of an amateur. I am certainly not going to talk about them to-night. To me it is axiomatic that in a democratic society the criminal courts should not only be fair but be seen to be fair. There can be little hope of obtaining the confidence of delinquents in their treatment if they do not themselves have confidence in the fairness of the courts. This is why I make no apology for taking up your time to-night by talking to you for a little while about the challenges which the existence of our new multi-cultural society is posing to the courts and what we are trying to do to meet those challenges.
At the background of my talk to-night will be two main themes. The first is that we have become, in every sense of the word, a multi-cultural society within a generation. The second is that this single fact means that challenges are now being posed to our system of justice which we are only just beginning to understand, let alone grapple with.
I take the first of these points first. Our ethnic minority population was comparatively small when I started to practise as a barrister in 1964. It was even smaller when judges now in their mid-60s started their professional careers ten years earlier. Of course there were long established black settlements in the dock areas of some of our great ports – Cardiff and Liverpool, for example. After the second world war, immigrants from the Caribbean began making their homes here in increasing numbers. And during the first twenty years after the war there was a good deal of settlement by Indians, particularly Sikhs from the Punjab and the west coast state of Gujarat, following partition in India. But, as I have said, the numbers were comparatively small, and the typical court scene I used to see at assizes and quarter sessions in the 1960s was predominantly all-white.
Now our ethnic minority population is 5.5% – 20% or 30% in some parts of our cities – and on current trends it will continue to grow until it stabilises at about 10% forty years from now. This is a colossal change, and no wonder it has caused strains and challenges to all our established institutions, including the courts.
The first slide I will show you shows the breakdown of this population according to the 1991 census figures. 840,000 Indians. 500,000 Afro-Caribbeans. 475,000 Pakistanis. 200,000 black Africans. 160,000 Bangladeshis. 150,000 Chinese. More than half of them born and brought up here, and knowing no other home. At present, most of the tensions facing the courts are concerned with the treatment of the black, as opposed to the brown or the yellow, parts of this population. But there is no guarantee that this state of affairs will continue indefinitely. I believe that what is happening between some of the white and many of the newly arrived Asian people in some of the poorer parts of our cities is going to throw up quite new challenges to everyone in our criminal justice system in the years which lie ahead. So are the tensions between people in different minority community against each other.
Next, a word about the challenges which all this poses to those of us who are concerned with the administration of justice in its widest sense. I will start from the depressing end. Prison statistics. Statistics of the ethnic minority prison population were first published in 1985, and they have been published yearly since then. I have got a set of slides which illustrate the position at the end of 1993.
Before I start, there is one important point I need to stress. I have just been supplied with the latest Home Office statistics, and these are now able to distinguish between United Kingdom nationals and foreign nationals who are on temporary – sometimes very temporary – visits to this country. In December 1993, more than 4,000 prisoners – 7% of the total prison population – were identified as foreign nationals. Many of these were convicted of drug offences, and the sentencing of foreign drug couriers raises different issues from those I am talking about to-night.
This is particularly important when figures of ethnic minority prisoners get bandied about. 27% of ethnic minority male prisoners are foreign nationals. The comparable figure for foreign ethnic minority female prisoners is 53%, over half. The figures which are usually quoted have never taken any of this into consideration, because the statistics have never been broken down like this before.
I will show you first the ethnic composition of the male prison population at the end of 1993. In 1985, when these statistics were first collected, the proportion of ethnic minority prisoners in the left-hand chart was 12.5%. By June 1991 it was 16%: it is now down to 15.3%. But if you look at the right-hand chart, which is limited to UK nationals, the proportion of ethnic minority prisoners is 11.8%. This is a much lower figure than any of those which used to be quoted, when the figures included foreign nationals.
Next, female offenders. This shows the ethnic composition of the female prison population at the end of 1993. The left-hand chart shows the sort of figures which are usually quoted – 26.4% of the total. However, they include a very substantial proportion of foreign nationals, mainly imprisoned for drug offences. These are removed in the chart on the right, when the total proportion of female ethnic minority prisoners comes down to 15%.
The next slide picks up the statistics for sentenced young offenders. Foreign nationals are excluded. Here ethnic minority sentenced prisoners make up 12% of the total. Most of these, 8%, are in the West Indian/African category. A greater proportion of these were convicted of robbery than their white counterparts: when violent and sex offences are added, over half the West Indian/African young offenders are in custody for these three categories of offence. A much greater proportion of the whites were convicted of burglary.
Finally, this slide shows male adults, UK nationals only. In this age range, the proportion of whites sentenced for offences involving sex or violence is now greater than the equivalent proportion of West Indians or Africans. Once again, a greater proportion of whites are convicted of burglary and a greater proportion of blacks are convicted of robbery.
There are two further points I need to make. The first that these figures, depressing though they are, seem to have stabilised. The proportion of prisoners now categorised as West Indian and African rose quite steadily after 1985, but it steadied at between 9 and 11% between 1987 and 1992, and is now reducing slightly. For male UK nationals, it is now less than 9%, even though the total prison population has risen so much recently.
The second point is that the type of offences which are committed by people from different ethnic groups – and here I am generalising very dangerously – is bound to influence the outcome of the court process. I showed you how over half the young offenders categorised as West Indian or African were convicted of offences of violence, including robbery, or sex offences. This is important because at Crown Court level at any rate, first offenders can expect to be given custodial sentences for most offences in these categories, whatever their previous record. In contrast, a much greater proportion of white young offenders were sentenced for offences of burglary, and throughout the 1980s there was a determined effort by the courts to keep young burglars out of custody whenever it was possible to do so.
For the last two points I want to make about statistics, I am going to move to the very valuable research study carried out by Dr Roger Hood five years ago, and to two of the findings he made. This study covered the outcome of all the cases involving ethnic minority defendants in five crown court centres in the West Midlands in 1989. The results in this group were matched, so far as males were concerned, against the results in a comparable, randomly selected group of white defendants sentenced by the same courts in that period: on the other hand all the 447 female cases, including 90 from ethnic minorities, were included in the study.
Dr Hood found that his research confirmed to a very marked degree earlier findings that the over-representation of Afro-Caribbeans in the prison system occurred mainly because they were over-represented among those convicted of crime and sentenced in the Crown courts. 80% of this over-representation could be attributed quite simply to the criminal record of the offenders and to the characteristics of the offences of which they were convicted.
This first slide shows a list of the 15 different variables Dr Hood took into account in his statistical analysis. They represented what in his view were the most powerful factors which tended towards a defendant being sentenced to custody. Even when he added six more variables, they made very little difference to the results.
20% of the over-representation of black people, however, could not be attributed to the offence or the offender. But two thirds of this balance stemmed from the loss of a sentencing discount because disproportionate numbers of black defendants tended to plead not guilty. I will come back to that point in a moment. The remaining 7%, which I will call the unexplained differential, was unexplained even after the effect of all these matters had been taken into account. At one so-called crown court centre the unexplained differential was much higher than the general average.
This slide shows the difference between the average level of sentencing at that centre, which I have called Court B, and the level at a very large Crown Court centre nearby, which I have called Court A. Using all his variables, Dr Hood developed what he described as a “probability of custody score” in relation to each case, taking into account all its significant features. He then plotted the average outcomes on a graph, from a score of nought, for a person of good character convicted of a first offence of shoplifting, for example, and a score of 100 for a person of bad character convicted of armed robbery.
In Court A there is more or less a straight line for black offenders. At a score of nought, 5% were given custody, but this discrepancy soon righted itself. With a score of 50, about 50% were sentenced to custody, and generally the risk of custody and the actual outcome were more or less evenly matched. In Court B, however, the position was strikingly different, particularly at the lower levels. At score nought, 30% were sentenced to custody; at score 20, 60%; at score 40, 70%. At score 75%, nearly 100%.
The next slide shows the results in the band of lower risk cases, where the risk of custody score was less than 50. If one compares blacks, whites and Asians at the two court centres, the percentage actually sent to custody was virtually the same as the risk of custody score, or lower than it, in five of the six categories. It was only in the sixth category, which related to the sentencing of blacks in Court B, that there was a huge discrepancy. The average risk of custody score was 21.5. Over 70% were sent to custody.
How striking these findings are is illustrated by the final slide in the series. This table is confined to those with the lower risk of custody scores who were in fact sentenced to custody. It lists 20 attributes which are commonly seen by statisticians as constituting mitigating features. In Court A, where the blacks were, on average, treated even-handedly, those sentenced to custody had, in general, less mitigating features than the comparable whites. In Court B, in every single line, the blacks had more mitigating features, in most cases very substantially more, but still they were sentenced to custody in disproportionate numbers.
I have spoken on other occasions about the feelings of the judiciary in the West Midlands about the fairness and accuracy of this study. The judges were forbidden to talk to Dr Hood, and he has accepted that this was inevitably a paper exercise, and that he would have benefited greatly if he had been allowed to talk to the judges involved. It was also, at any rate so far as the blacks in Court B were concerned, a comparatively small sample.
Taking it at its face value, however, there are two points I want to draw out. The first is that Dr Hood found no evidence of unexplained differential treatment of young black offenders, or of black women. The sentencing at the largest court centre, Court A, was on average even-handed, and at another fairly tough centre, Court C, any discriminatory treatment was meted out at white offenders, not black. Across the whole spectrum of the cases he considered that it was unemployed black men over 21 who seemed to be the recipients of unexplained differential treatment, and this feature was more marked if two or more of them were sentenced together.
The second point I want to make relates to that figure of 13% who received tougher sentences than their equivalent white counterparts because they pleaded not guilty. There is plenty of evidence that black people choose trial by jury rather than summary trial by magistrates in greater proportions than white or Asian people. There is also plenty of evidence that a greater proportion of black people are acquitted by juries in the Crown Court. But nobody can tell how many of them would have been acquitted by the magistrates if they had not chosen Crown Court trial, and they would certainly have received lower sentences on conviction if they had chosen to stay in the magistrates’ court. There is a lot of depressing anecdotal evidence that many black people are not fully aware of the consequences of their choice of the court of trial, let alone of the effect of the sentencing discount for a plea of guilty. They do not trust magistrates or judges, and they feel that a jury will understand them better: and they are either blind or deaf to the more serious consequences which may befall them if they choose to go to the Crown Court and are not acquitted.
The much smaller research studies which preceded Dr Hood’s work presented a confusing picture on the whole. Often the sample was too small for meaningful conclusions to be drawn, or the scale of the problems involved in dividing out all the significant variables apart from ethnic origin was beyond the resources of the researcher. In the early days of my committee’s work we supplied a 16-page summary of the findings of all these earlier studies to everyone who attended our training seminars for crown court judges and recorders.
The main things that could be gleaned from these studies were that odd things had been happening in a number of magistrates’ courts; that the probation service was not always providing the courts with as wide or well-informed a range of community sentencing options for ethnic minority offenders; that some courts were less ready to accept their recommendations, when they were made, in relation to ethnic minority offenders; that a number of such offenders appeared to move up the sentencing tariff to custody more rapidly than their white counterparts; and that some unexplained differential treatment appeared to be occurring in some courts, not in relation to those sentenced to 18 months’ custody or more, but to an intermediate range where a lot depended on the fine-tuned use of discretion by the individual sentencer.
All the studies I have talked about related to what was happening in the 1980s, nearly five years ago or more. There has been no major study since Dr Hood’s: resources in this field are now being directed towards collecting statistics throughout the system in a much more co-ordinated manner. This fact is important because as I have said some of the adverse trends which were then appearing on the scene seem – and I stress the word “seem” – to be being slowly reversed to-day. The disproportionate number of young black offenders sentenced to custody seems to have been reversed. The overall proportion of black people in the prison population seems to be coming down. The overall proportion of black females in custody seems to be coming down. More attention is now being paid to the size of the overseas element in that category at last. And we now have figures which appear to show that the great increase in the prison population which has occurred in the last eighteen months has not brought with it any proportionate increase in the number of people from ethnic minorities in custody as sentenced or remand prisoners.
But even if some things seem to be getting better, there can be no doubt at all that many black and Asian people’s perceptions of the fairness of the courts is conditioned by the widespread knowledge of all this evidence I have referred to. It is also conditioned by the silly things which judges and magistrates say from time to time. But for each silly remark there are countless occasions up and down the country every day when people from minority communities are being treated with conspicuous fairness, understanding and courtesy by judges and magistrates. This fact, however, is only known to the individuals who receive such treatment, and perhaps to their immediate families and friends. The silly remarks are carried like wildfire, like some of the silly remarks about female victims of sex offences, not only through the national and local press and radio, but in this context through the ethnic minority press and radio networks as well.
This is all part of the problem. It is in fact different only in degree from the dilemma the judiciary faces generally in its efforts to do justice at a time when people in the news media are spotlighting areas of bad practice, or what they sometimes wrongly believe to be areas of bad practice, and nothing remotely resembling the same attention is paid to examples of good practice. But it is undoubtedly different in degree because of the fact that many black people before the courts have suffered so much unfair treatment, or honestly believe they have suffered so much unfair treatment, outside court because of their colour, that they are conditioned to expect unfair treatment when they come to court: and sometimes they believe they are receiving unfair treatment in court when in reality they are not.
I was asked 3 years ago to lead EMAC, the new Ethnic Minorities Advisory committee of the Judicial Studies Board. Our job is to advise the Board and its committees on the way they should set about providing advice for judges and magistrates about the kind of issues I have been talking about to-day. I have always thought it important to publicise what we are doing, and some of you may have read our first two annual reports.
From the very beginning we have based our advice on a sound foundation of principle. A clear statement of aims: commitment and leadership from the very top: and a partnership approach in everything we do. These are the three main features of our approach. I will say a little about each of them.
We spent about a year, meeting from time to time, before we were happy with our statement of aims. I will quote from two paragraphs of the introductory remarks and from the two paragraphs of our aims to show you what we are up to.
First the introduction:
“Most of this country’s judges and lawyers are white and it was they and their forbears who created the English judicial system. The administration of justice here is based on values, perceptions, concepts and experiences which at times can be at variance with those which are possessed by some who live here in minority communities.
These variances might well result in misunderstandings, mistakes and even injustice, and research evidence shows that they sometimes do have this result. Witnesses or victims of crime or litigants or defendants in criminal courts may for cultural or other reasons appear to behave or respond inappropriately through English eyes, and they may then be misunderstood or disbelieved. Inappropriate results may occur because of cultural misunderstandings or mistrust.”
Next the aims:
“To impart to all who sit in a judicial capacity such information about the culture, social background, perceptions, experiences, habits and religious practices of Britain’s ethnic minority communities as is appropriate and necessary to help them perform their judicial duties with greater understanding of these matters.
And to assist all who act in a judicial capacity in courts and tribunals to avoid discriminating or creating the perception they are discriminating on racial grounds against members of ethnic minorities who appear before them.”
We could not possibly have got as far as we have done in the last three years if we had not identified so clearly at the start what we should be trying to do.
Secondly, leadership and commitment from the top. I learned when I chaired the Bar’s Race Relations Committee how important that was. The Bar wanted a high court judge to lead that committee, and successive chairmen of the Bar recognised that I had a right, which I took advantage of twice, to come and tell the Bar Council if I did not think the Bar was taking our advice seriously enough.
Race relations is far too important and far too sensitive to be hived off to a group of experts. I know – because so many told me – the impact which was made when I spoke to about 50 training conferences of judges or magistrates in our first two years of operation. I was able to say: “We must realise that the administration of justice in a multi-cultural society is difficult for all of us” and people would sit up and listen in a way which they would not have done if they were being talked to by a speaker, however expert and knowledgeable, from outside their ranks.
Many of you may know that when we launched our new programme of seminars for the whole of the judiciary last autumn, both the Lord Chancellor and the Lord Chief Justice came and joined us all morning.
On that occasion the Lord Chancellor said this:
“In my view this training programme is of the greatest importance because it goes to the very heart of what justice – and a judge’s job – is all about.
It must be regarded as an essential part of the professionalism of a judge that he or she ensures that everyone in court believed they have had a fair trial conducted by a fair-minded judge whether they win or lose their case.
This programme is about something very fundamental. Our judges in their difficult task deserve all the help the Judicial Studies Board can give to enable them to be seen as fair minded by those in our ethnic minority communities as well as by everybody else.”
And the Lord Chief Justice spoke in the same vein when he spoke about difficult issues which posed fundamental questions about the delivery of justice in a diverse and changing society in a way which was felt to be fair by everyone.
I turn from the need for commitment at the top to the partnership approach. We aim to teach judges and magistrates important things about the use of language – how very many people dislike words like coloured or half-caste being applied to them; about getting people’s names right; about ensuring that oaths are administered correctly: that they should be alert to spot differences in people’s behaviour or family life which stem from their different cultural or religious backgrounds: that every effort should be made to avoid the risk of injustice through misunderstandings derived from communications failures, whether through the spoken word or through body language; that they should avoid generalisations which at best are mistaken or unfair and at worst are thoroughly offensive. And we must also do what we can to alert fair-minded, well educated people to be wary of the tendency we all have to treat people from different cultures differently from the way we treat people from our own culture, whom we understand better and with whom we feel more comfortable.
Our partnership approach means that once the ice is broken, and the importance of the subject has been signalled up, our planning involves giving judges and crown court recorders the opportunity of hearing about these things, and discussing these things, with people from the minority communities in the areas they are serving. This is why we invite 18 such people in to meet the judges for the whole of the first evening in our new programme of seminars. They are not just black or Asian JPs or probation officers or chairmen of school governors: they include lay people from Race Equality Councils, people running hostels for battered wives, people involved in fighting racial harassment, people involved in training and enterprise schemes for young black youth.
What may have been picked up on that first evening will then lay the foundation for what happens the following day when we go on to address the sort of problems which often give rise to difficulties and misunderstandings in court in small groups, each led by an experienced group leader we have picked for the task.
If our work stopped there, we would have broken the ice and given people a lot to think about and a lot to read, but not much more. But I am already seeing signs that what we are doing will not stop there. It is uncomfortable for very experienced fair-minded judges to be told, fairly and squarely, that the local Crown Court is regarded as biased by the local black community. They say, reasonably enough, that the people who make these criticisms have never sat with them in the Crown Court and watched the painstaking efforts they are making to be fair, often against pretty heavy odds. They also say, against themselves, that they have never been given the opportunity of listening to these criticisms before, from obviously fair-minded people who have no political axe to grind. And they conclude that they must do something to bridge this gulf.
One judge told me last month that he regularly goes out from his court to meet people from local communities, in their meeting-places and their homes. He invites them back to sit with him in court and have lunch with the judges, and at his court the local Race Equality Council is represented on the Crown Court Users’ Committee. He told me that all this effort is paying off in terms of enhancing people’s understanding and respect for the work the courts are doing in their efforts to be fair to everyone.
On the last occasion I spoke at an ISTD meeting I announced that the judges would now be taking part in the new local inter-agency consultative committees set up after the Woolf Report. Some of you may know that the new national Criminal Justice Consultative Council picked race and criminal justice as one of the four most important subjects it had to tackle first, and I hope that imaginative inter-agency collaboration will stem from its initiative and that this will support the training initiatives we are taking at the court end.
Why is this all so important? At present, for whatever reason, there is a crisis of confidence. A race issues opinion survey carried out in June 1991 by National Opinion Polls found that 75% of the Afro-Caribbean, 48% of the Asian and 45% of the white people interviewed believed that black people are treated more harshly by the police. Similar beliefs in respect of the courts were expressed in a study a year earlier by 57% of the Afro-Caribbean, 24% of the white and 19% of the Asian respondents. A small 1991 study of all stages of the criminal justice system found that a high proportion of black people believed that the system was discriminatory and that this view was shared by a substantial minority of white people.
People are entitled to fair and understanding treatment from everyone in our criminal justice agencies, from the courts downwards. In the past, I think too much emphasis has been placed on the need to ensure that they do in fact receive fair treatment, and not enough on the need to ensure that they, too, believe they have been treated fairly. We saw in Los Angeles what happens when large parts of a city believe that a court has been unfair. We have had comparable crises of confidence, although not directed at the courts, over here in the last 15 years, in places like Brixton and Handsworth and Toxteth and Tottenham, and it would be absurd to think that we have put our house in order just because we have not had a major riot for some time. But a lot of progress is now being made to take these issues seriously in all parts of the criminal justice system, and I am encouraged to think we are now getting somewhere. The challenges remain immense, but an increasing number of us now think we are travelling quite hopefully.
I end, as I started, with Eve Saville. The tribute paid to her in the British Journal of Criminology after her death told how she came from a tradition which pursued its ends with a humanity that insists that they should be attained by education, persuasion and example. The work I have described to-night is built on the same foundations of education, persuasion, example and humanity. Such successes as we may have had so far stem from the fact that we have understood this secret which Eve understood so clearly herself.