A growing awareness of the systemic and institutional biases built into the criminal justice system has given rise to much research focused on the specific types of inequalities produced. From the disproportionate incarceration of particular groups, to law enforcement measures designed to target specific communities, the criminal justice system in the U.K. has faced a growing number of criticisms related to its perpetuation of discrimination based on race. In this essay, I review and evaluate the evidence on whether there exists widespread racial discrimination in the U.K.’s criminal justice system (CJS). First, a review of the historical context is presented, followed by a discussion of some of the major challenges identified in the CJS with respect to racial discrimination and bias. The problem of overrepresentation is then reviewed, followed by a focused discussion of how discrimination manifests in U.K. criminal justice institutions. It is argued that despite important reforms and some progress having been made, racial discrimination remains embedded in U.K. CJS institutions, and can be seen across multiple levels of operation, including search, arrest, prosecution, and sentencing.
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A review of the historical context in Britain is helpful for understanding the current challenges related to discrimination in the country’s CJS, as well as more longstanding issues related to racial discrimination across the U.K. overall. Perhaps the most flagrant example of racial discrimination on the part of the police has been illustrated in historical use of the so-called ‘sus law’. Officially, the sus law was a term to refer to Section 4 of the Vagrancy Act (Cloake and Tudor, 2001). This section of the Vagrancy Act, first passed in 1824, was a popular tool used by police in Britain to routinely arrest young men of colour, absent any evidence of their having committed a crime (Cloake and Tudor, 2001). Thanks to its widespread abuse, the law was eventually struck down in the 1970s (Cloake and Tudor, 2001). Police often used the law to justify the arrest of any young black man they deemed suspicious (Cloake and Tudor, 2001). The law served to create mistrust between Britain’s black communities and police, and would eventually culminate in widespread rioting during the 1980s (Denham, 2007).
Besides the use of the sus law to unfairly target young men of colour, media coverage of certain social phenomena have functioned to construct black communities as in a state of disorder, and being prone to crime (Rowe, 2012). Black and minority ethnic (BME) communities, along with young Muslim men, in particular, have traditionally been ‘otherised’ in the mainstream media and depicted as a criminal threat (Rowe, 2012). The notion that young men in these communities constitute an inherent gang threat has also been depicted in various media portrayals (Rowe, 2012). For example, during the Milltown disorders in 2001, the media constructed Asian immigrant communities as inherently criminal, and as posing a growing threat (Rowe, 2012). The Milltown disorders have been cited as a prime example of conflict between different racial groups in contemporary Britain (Keith, 2008). Explanations put forward for the unrest have included poor engagement between the community and the police (Rowe, 2012). Media coverage and police discrimination have intersected to increase the divide between visible minority and majority communities in Britain.
Over time, the recognition of certain longstanding tensions and difficulties between racialized communities and the police in Britain has helped lead to efforts designed to uncover root causes of problems. Following a series of serious riots in Brixton in 1981, the government ordered an inquest to understand the root cause of the unrest (Ponsaers and Devroe, 2012). The inquiry was led by Lord Scarman, and the inquest would eventually produce the Scarman Reports (Ponsaers and Devroe, 2012). These reports detailed the complex interplay of economic, social, and political forces involved in riots and unrest (Ponsaers and Devroe, 2012). Lord Scarman advanced a series of recommendations designed to help address what was then identified as systemic racism in the criminal justice system (Ponsaers and Devroe, 2012). As part of recommendations, Scarman noted the need for an independent review body to examine complaints made against the police (Ponsaers and Devroe, 2012).
Despite recommendations being advanced on thorough research, and being aimed toward addressing the root causes of growing racial unrest and division, Scarman’s main recommendations were never enacted (Ponsaers and Devroe, 2012). As a result, discriminatory treatment continued, and riots persisted as an ongoing problem in certain areas home to marginalized communities. This shows a storied history of racial discrimination intertwined in the history of Britain’s criminal justice system. An understanding of contemporary challenges with respect to widespread discrimination must be grounded in knowledge of the historical context that has functioned to reproduce particular inequalities and injustices.
Specific Challenges in the Criminal Justice System
Today’s discrimination-related challenges in Britain’s CJS exist against a backdrop of longstanding inequality, exclusion, and racism. In four key areas of Britain’s CJS, significant racial discrimination can be observed. Institutional and structural biases built into the systems and values underpinning criminal justice in Britain results in a variety of inequities at different levels of operation. An inequality in outcomes in areas of search, arrest, prosecution, and sentencing, poses a broader risk to the continued functioning of Britain’s CJS overall. There is a pressing need to address systemic discrimination as a means of not only restoring confidence in the system, but also addressing existing inequalities functioning to undermine police effectiveness.
Stop and search is one area of the U.K.’s CJS that has been subject to claims of discrimination and racial profiling. Historically, the stop and search program has been a source of significant controversy; following the release of the Macpherson Report in 1999, it was revealed that the police were overwhelmingly targeting visible minorities in stop and search interactions (Llewellyn, Agu and Mercer, 2010). Indeed, throughout the 1980s and 1990s, young men of colour were the most frequent target of police stops and searches (Llewellyn, Agu and Mercer, 2010). When it was revealed that police were systemically targeting visible minorities, police largely curtailed its use (Llewellyn, Agu and Mercer, 2010). It is noted, however, that since the 7/7 bombings, use of stop and search has once again increased; this has been cited as a broader trend toward securitisation in the wake of the attacks (Parmar, 2014). As part of this process, Muslim communities in the U.K. have now been disproportionately targeted by police (Parmar, 2014). At the same time, media portrayals have reinforced notions of Muslim communities as being inherently connected with criminality (Parmar, 2014). This process has mirrored the ‘othering’ of black communities historically in Britain’s CJS.
Based on DNA samples collected at the time of arrest, black men are overwhelmingly overrepresented in terms of their numbers of arrest, particularly when compared with the Asian and white populations in the U.K. (The Stationery Office, 2010). The data show that 27 percent of the U.K.’s black populationÂ have their DNA stored in the national DNA database (The Stationery Office, 2010). This is compared to just six percent of the country’s white population, and just nine percent of the country’s Asian population (The Stationery Office, 2010). These numbers show that even today, black men are far more likely to be arrested than white or Asian men in the U.K. The research has confirmed that the root cause of the overrepresentation of black citizens in the U.K. CJS is their overrepresentation in arrest and prosecution (Hood, 2008). Moreover, the research has shown that black defendants are more likely to receive longer sentences than their white counterparts (Hood, 2008). These findings reveal a CJS where racial discrimination is widespread and pernicious.
The Problem of Overrepresentation
The problem of overrepresentation in the CJS is manifested differently among the diverse BME population. Socio-economic status is a key factor in shaping the experiences of black males with the CJS in Britain; different groups and communities have tended to experience different levels of socio-economic success and integration (Alexander, 2010). For example, the research has demonstrated that families of Pakistani and Bangladeshi descent have tended to face higher risks of poverty; conversely, black Caribbean communities and communities of African descent face a higher risk of educational problems which can reflect their marginalization (Alexander, 2010). For some communities, a significant level of marginalization and isolation from the broader society has led to a kind of polarisation and tribalisation (Alexander, 2010). For other communities, the experience is markedly different. There is thus a need to recognize the diversity inherent in the experiences of different communities. While overrepresentation is clearly a problem in the U.K.’s CJS, it is potentially dangerous to essentialise diverse groups on the basis of broad trends and statistics.
A Nuanced Explanation of Discrimination
A nuanced understanding of the root causes of discrimination in the U.K. system is needed for advancing effective policy responses. Indeed, while there are a disproportionate number of black men represented in the U.K.’s CJS, the same is true for Canada and the United States, as well (Warde, 2012). Systemic and institutionalized racism, built-into the structures and norms underlying social institutions like criminal justice systems is a complex and multifaceted issue that cannot be explained or addressed through a singular focus on any one particular cause. Rather, adopting an intersectional and nuanced approach can help to explain both how racial discrimination persists at different levels of Britain’s CJS, as well as how it interacts with other institutionalized and historic forms of discrimination.
The importance of considering the broader historical context, particularly for those with certain identities racialized by the CJS in Britain, cannot be ignored. Institutionalized slavery and the legacy of the slave trade represents an important factor to consider when attempting to explain institutionalized discrimination. It has been argued that the intergenerational effects of slavery have left many immigrants already fragile (Burke, 2015). Upon their encounters with institutional racism in Britain’s CJS, powerful consequences can result. These interactions can open existing wounds and drive deep division and mistrust for the police. The consequence here is that communities are made less safe, while the legitimacy of law enforcement is undermined. This helps to illustrate the pernicious effect of discrimination; not only are individuals unfairly targeted for arbitrary reasons, the public is made less safe as a result of greater division between some communities and the police.
It is clear that widespread racial discrimination persists in the U.K. CJS. Black men are dramatically overrepresented at the levels of stop and search, arrest, and prosecution. Moreover, these citizens tend to receive longer sentences than other defendants. While different communities may experience different levels of discrimination, racial discrimination in the CJS represents a pressing threat to public safety. As long as institutional bias continues to exist within the CJS, and minority communities are unfairly targeted, the public will face serious risks. Going forward, a commitment to address the root causes of racial bias is needed.
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