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Lord Justice Brooke
The Administration of Justice in a Multi-Cultural Society
Fight Against Racism in the Administration of Justice
Grotius Colloquium. London
27 March 2000
As you know, the title of this Colloquium is the Fight Against Racism in the Administration of Justice. You face two tasks in the next four days. First, you have to understand how racism and racial discrimination can arise in judicial systems. Then you will set out to develop common strategies in the training of judges in this field. You will have to find means of ensuring that the courts are seen to act fairly towards everyone, so that everyone will have confidence in their fairness. This second part of the exercise will include the development of codes of best practice.
This first afternoon, then, we ask the question: Where are we now? I have been asked to talk to you about the ways in which racism can appear in the justice system. Then we will have contributions from each of the countries represented here. These will identify the topics that are most pressing today in the field of cross-cultural relations in each of our countries, and the training needs these issues raise. After a short break, we will then have a plenary session in which we will try to draw the threads together, to set the scene for the more detailed discussions that will take place over the next three days. By then I will have gone back to my work as a judge, and others will take over the running of this second part of the conference. I look forward to reading the outcome of this colloquium, as I believe that what you will be discussing this week is of critical importance for the public perception of justice in all our countries.
To some extent I am speaking to you as a voice from the past. I am now over 60. For five years between 1987 and 1991 I was fairly heavily involved, first as a barrister and then as a judge, in chairing the committees that were responsible for developing the race relations policies of the English Bar. For three and a half years, between March 1991 and September 1994, I chaired the specialist advisory committee our Judicial Studies Board created in 1991 to help it to develop judicial training in this field. Since then, I have been a watcher on the sidelines. I have crossed the Atlantic twice to speak to Canadian judges, in Ontario and Vancouver, on these issues, and I have spoken once to very senior Home Office officials, but this is the first time I have been invited back by the JSB to speak on this subject to judges on my home turf. It is a great honour to be with you today.
I intend to tell you something about the way we started to tackle judicial training in this field in this country nine years ago. But I think the main reason I am here today goes back to a lecture I gave just over six years ago. It was called the Kapila lecture, from the name of the family who endowed the lecture series. I gave my lecture the same title "The Administration of Justice in a Multi-Cultural Society". It has been quite widely circulated to judges in English-speaking countries like Canada, Australia and New Zealand, and a copy of it is included in the papers for this conference. I hope you will read it.
I said that night in November 1993 that I had been listening for seven years to intelligent black and Asian people, and to people from other non-white backgrounds. I had also been listening to many thoughtful white people. They had all been telling me a lot of uncomfortable things about the way our British system of doing justice was viewed by many people from ethnic minorities in this country. In my lecture I tried to put a little of what I had seen and heard into simple language, and to share a few thoughts with my audience. These thoughts were based on a range of experiences which few white judges had ever enjoyed.
Why do I say this? The reason is that I was always lucky enough to attract to the committees I chaired most of the ablest, and sometimes also the angriest, black and Asian men and women in these specialist fields. I have been very pleased to see how many of my colleagues have now been honoured by the Queen for services to race relations, or have become members of our second House of Parliament, or have been made chairmen of public or semi-public bodies, or Queen's Counsel, or part-time judges. Ten years ago, we possessed very few black role models for our young black people to look up to. I remember we used to persuade the English Bar to pay enough money to enable one black law student each year to go to a work placement in the United States with an experienced black lawyer or black judge who had been a success in their professional field. There is not quite the same need for that kind of exercise to-day, as black and Asian people of quality are at long last being promoted to the positions in public life, and also in the private sector of society, which their talents deserve.
The first word I want to discuss with you today is this difficult word "racism". Over the last 20 years we have moved quite a long way in this country in our understanding of what it means, although it is a word which still creates difficulties in some circles.
In this country, issues of racism are largely associated in the public eye with attitudes towards black and Asian and other non-white people. This involves a much too narrow approach to the meaning of the word, particularly in a European context. When I spoke in 1992 of the training work we were doing to a seminar of European judges at Chantilly, I remember that a French judge spoke of the attitudes of the French to black North Africans, a Dutch judge of the treatment of Indonesians in the Netherlands, and a German judge of the treatment of Turks in Bavaria. You will notice that there is one black, one Asian and one white example of racial antagonism there. Three years ago our own Commission for Racial Equality launched a research study into the treatment of Irish people by the English. I went and spoke at the launch, and the stories I read in that study bore a marked resemblance to some of the stories I had read about the treatment of black and Asian people in England.
One of the first things I was taught by my expert advisers was that in order to understand what racism means, and the scale and nature of the problem it poses, you mustn't talk about things in the abstract. Judges must understand, in broad terms, the nature of the ethnic mix of the people they see in their courts. They must also learn a little bit about demography.
The JSB has now published two editions of a specialist handbook which is sent to all judges. In each edition a very early chapter is called "Ethnic Minorities in England and Wales". In this country we are still fairly heavily dependent on the results of our 1991 national census, but various methods have been used to bring some of the figures up to date.
In 1991 there were just over 3 million people here of ethnic minority origin. They constituted about 5.5% of our total population. Nearly half of them were born here. Equivalent figures for 1997 are 3.6 million and 6.4%. I remember being told a few years ago that our proportion of ethnic minority citizens was likely to go up to about 10% in 2020, assuming no more primary immigration, and that it would then level out.
Nearly half our ethnic minority population live in Greater London. Four great urban centres, London, the West Midlands, Greater Manchester and West Yorkshire, contain nearly three-quarters of them. In some country areas there is still hardly ever a black or Asian face to be seen.
Our minority population is mainly young. Of all those who were under 25 in the 1991 census, 8.2% came from an ethnic minority background. This proportion was even higher among those who were younger than 25. In contrast, nearly 30% of our white population was then over 55, compared with less than 10% of those from ethnic minorities.
Where does this minority population come from? Again, I have to give you the 1991 figures. 840,000 were of Indian origin, 475,000 from Pakistan and about 160,000 from Bangladesh. Half a million were of Caribbean origin, and there were 180,000 called "black other". A lot of these are the children of settlers from the Caribbean who like to think of themselves as "black British". There were also 200,000 black Africans, 160,000 Chinese, and about 300,000 who would describe themselves as Jewish. All these figures will have increased by now. In 1998 it was also estimated that there were about 120,000 recognised refugees and asylum-seekers in Britain, mostly living in London.
Many countries, like my own, have always had a habit of welcoming people who come from other countries. In England we have had the Romans, the Angles, the Saxons, the Jutes, the Danes, the Normans, the Huguenots, the Jews and many other people coming over the centuries to settle here, to marry and bring up their families here. This kind of population movement gives a country its strength and diversity, and prevents it from being inward-looking and introspective. The most striking change in the last 50 years, however, has arisen from the sheer scale of the inward population movement until primary immigration controls were imposed.
An English judge needs to know that the main flow of settlers to this country from Caribbean countries took place after the Second World War, between about 1948 and 1963. So far as those of Indian origin are concerned, as a general rule they are better educated than those from other Asian or black countries. Many of them were traders, and a lot of them moved here as a result of the upheavals in the Punjab following partition in 1947 and the later upheavals in East Africa in the late 1960s. The Pakistanis mainly come from a very poor region called Mirpur in northern Pakistan. They arrived later than the Indians, and the Bangladeshis, who are even poorer than the Pakistanis, arrived later still.
When we started our training work in 1991, there were still English judges and magistrates who said to a black defendant who had been born here: "This isn't the way we do things in this country". This caused immense resentment. So did the assumption that a judge was at liberty to recommend the deportation of a defendant simply because he had a black face.
I have not heard many recent complaints along these lines. Quite apart from the things our judges and magistrates have learned from training, many of us have children who have grown up in a multi-cultural society, and mixed race partnerships are much more common than they were 25 years ago. A 1997 study of people living here showed that 50% of British born Caribbean men had a white partner. So did a third of Caribbean women and 20% of Indian and African Asian men. Another recent study shows that 20% of ethnic minority children of pre-school age are of mixed origin. In other words, as we move from primary settlement to the second and third generations of the original settlers we are seeing the same kind of trends of absorption into the native population as has happened over the ages in this country as people from other countries have made their homes here.
This does not necessarily mean the process of absorption has always going smoothly. In one of our Sunday papers yesterday there was a long article by a white journalist, who married a black woman 15 years ago, in which he described his family's exposure to cruel racist comments as their mixed race children grew up. In a European poll taken at the end of 1997, 8% of UK citizens classed themselves as "very racist", and a further 24% as "quite racist". I suspect that these respondents were referring to conscious racist prejudice when they answered this question, and the proportion whose behaviour would be perceived to be racist would be higher still.
I remember that at one of the judicial seminars I organised in 1994 a black professional woman told me the agony she had just experienced when trying to tell her five-year old daughter before she went to infant school something of the mindless prejudices she would encounter at school because of the colour of her skin. She also told me how she felt completely safe walking the streets of what is commonly regarded by white people as a fairly dangerous part of the city of Leeds called Chapeltown, but felt distinctly unsafe when walking about in more prosperous suburbs.
However tolerant the people of a country may be, and I believe the people of this country are more tolerant than most because of the history I have described, the absorption of so many people from different ethnic and cultural backgrounds so quickly is bound to cause tensions and strains. This is where this difficult word "racism" comes in. Soon after my committee started work, we wrote to a lot of agencies which handled the affairs of ethnic minority clients, and an Asian respondent from one of them, a law centre in the North of England, gave a particularly wise reply. He said that his clients were very often confronted with racism in the judicial system. He said that malicious racism was very rare. Much more often the racism they faced arose as a lack of understanding, ignorance and misinformation. These things, he said, could be addressed by education.
I commented in my 1993 lecture that far too often this crucially important distinction was not made, and that fur and feathers fly in high places because of misunderstandings about the use of language. Racism is a reflection of the way in which we treat, or are seen to treat, people from another culture in a way in which we would not treat people of our own culture, with whom we are comfortable and familiar. It must not necessarily be equated with antagonism or hostility. People can be perceived to be racist when they act, or fail to act, without any consciousness that they are treating someone from a different culture differently. As judges we must all be aware of this danger, which is a natural part of the human predicament. I remember Jerome Mack, a very experienced black trainer, saying that of course we are all prejudiced. He had just read a newspaper which described a particularly grisly murder and his immediate reaction was to say "I do hope the murderer was not a black man."
You may know that last year a judicial inquiry looked into these matters, as a result of great public disquiet about the slipshod way the police had investigated the racial murder in South-East London of a young black teenager called Stephen Lawrence. This inquiry came up with a new definition of something it called "institutional racism". I will quote this definition to you, because it is bound to come up again and again during the course of this conference:
"Institutional racism consists of the collective failure of an organisation to provide an appropriate and professional service to people because of their colour, culture or ethnic origin.
It can be seen or detected in processes, attitudes and behaviour which amount to discrimination through unwitting prejudice, ignorance, thoughtlessness, and racist stereotyping which disadvantage minority ethnic people."
From my experience I know that this definition is just as apt to describe the failures of a country's judicial system to take these issues seriously as it is to describe the failures of its police service, or of its prison service, although failures by police officers or prison officers are more often in the news.
What are the ways in which racism can appear in a justice system? I will start with criminal justice for two reasons. The first is that in this country statistics have been collected systematically for some years now by the police, the probation service and the prison service. The second is that a country whose citizens do not all trust the criminal justice system to treat them fairly is not a country which is very nice to live in. The United States of America faces colossal difficulties here.
Our police statistics in 1997-8 showed that black people are on average five times more likely to be stopped and searched by the police than white people. Two million people were arrested that year. 7% of these were black. Once someone is arrested and charged, the police may have a choice of giving them a caution if they admit the offence, or of instituting a criminal prosecution. The statistics show that the police give a caution less frequently to a black offender than to others.
Probation statistics cover non-custodial community sentences. These are given for a range of offences which are too serious for a fine or a conditional discharge, but are not serious enough for prison. The statistics show that 7% of those who are given simple probation orders and 10% of those who are given a tougher type of community penalty called a combination order come from ethnic minorities.
Prison statistics show that 18% of our prison population are of non-white ethnic origin. The proportion of black people in prison increased between 1993 and 1998 from 10.9% to 12%. 61% of adult black sentenced prisoners are serving prison sentences of over four years, compared with 47% of white sentenced prisoners. Some care needs to be shown with these figures because of the large number of foreign nationals who are serving long sentences for drug importation, but the scale of the differential treatment the figures suggest cannot be attributed to this factor alone.
In my 1993 lecture I made a comment on statistics like these. A very experienced criminologist, Dr Roger Hood, had recently completed a study of sentencing in the Birmingham area, and I referred to some of his findings in what I said. Today I would not alter a single word of what I said then. I said:
"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 on page 98 of his book what he called the `expected risk of custody' against the actual outcome, taking into account a lot of different variables. The line of 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 being 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 small black sample. At 20% risk, 60% were sent to custody. The line of the graph dipped at 30% risk to 50% sent to custody, but it rose again at 40% risk to nearly 70% being sent to custody. Neither I or 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 or 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 today. This is why teaching about some of the risks I have been describing tonight 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."
I am the chairman of a centre based in King's College London which studies issues concerned with crime and the causes of crime. When I spoke to Supreme Court judges in Vancouver two years ago, I quoted to them what a young black offender had recently said to a journalist who was writing for our quarterly magazine. He said:
"I think that the justice system for black people isn't very good yeah? White people get good justice because obviously it is a white country, but take me for instance, I went to court, I got sent down for something I didn't do, yeah? Basically I was there, my friends done it, now they tried to say to me I should have rung the police on my own yeah? Grassed up on my friends yeah? That's not me, I wouldn't do that, so I went down for something I didn't do, now that's not very good justice. They never had any forensics on me, no witnesses, nothing, yeah? But because I'm black, because I've got a gold tooth, because I look like a ruffian, to them I look like a gangster - they looked at me and they just think that instantly I'm guilty. I don't agree with that, do you get me? They are looking at you and judging you by your appearance. They say when you go to court, oh there's no racism in the court, but you can see it on their faces when they are looking at you, when they are talking to you."
I told those Canadian judges that I had no idea whether he was guilty or not guilty. However, I had seen comments of this kind time without number in English studies, and I had read stories of the same kind in Canadian studies. It might well be, as English evidence tended to suggest, that criminally minded young people of one culture tend to commit more of a particular type of crime, like robbing people in the street or supplying drugs, and that the criminally minded young from a different culture tend to indulge in different anti-social habits, like non-domestic burglary or theft from shops, that attract a different approach to sentencing. If this is the case nobody should be surprised if more people from the first category go to prison, or that they go there earlier in their criminal careers. There is nothing remotely unfair about such an outcome.
It is when the courts, the police or the prosecuting agencies get a reputation for treating people unfairly, as they certainly have in this country, that it is crucially important to examine all our practices to ensure that things are not going wrong because people are indeed being treated differently because they come from a different culture. When I visited a large young offenders institution in London two years ago, the governor told me that 40% of the sentenced inmates and 60% of the unsentenced prisoners there came from ethnic minorities. I do not believe for one moment that these figures are an accurate reflection of the proportionate degree of criminality among young black people in London as compared with their white contemporaries. Something is going wrong, probably at each stage of the criminal justice process, because some people are taking different decisions in relation to offenders from a different culture from their own, and particularly to black offenders, from the decisions they are taking in relation to people who come from the same culture and with whom they find it easier to empathise.
In the field of civil and family justice, I have less to say, because less effort has so far been devoted to research and statistics in these fields. One well-known difficulty is that many people from ethnic minorities, and in particular those who are more poorly educated, see the court system as an indivisible extension of the executive, and they have plenty of reasons to be wary of the executive. They are wary of the police, they are wary of immigration officials, and they are therefore wary of judges, particularly if the judges are white and are based in courts where most of the court staff are white, too, and the court notices are all in a language they do not understand.
The Government has just decided to fund a research programme which will examine some of these issues. Housing problems often give rise to great misery, and part of this research will be directed to inquiring into the confidence possessed by ethnic minority tenants that they will obtain justice in their local county court when they feel they are being treated unfairly by their landlords.
In the field of family law the problems are getting more and more complex with every year that passes. How does one reconcile a system of justice which makes divorce relatively easy and which gives precedence to the needs of the children when a partnership has broken down with a system based on cultural and religious values that regards divorce with anathema and which looks up to the men of the family as the family leaders in every sense of the word? How does one teach judges and lawyers who are used to the family systems of their own culture - the nuclear family of father and mother and two, three or four children - to understand the dynamics of the extended family which is so familiar to people from different cultures?
In my lecture you will read a story I was told by Patricia Scotland. When I knew her first, she was in her early thirties, building up a fine reputation for herself as a barrister specialising in family law. She is now a QC, a member of the House of Lords, and a Government minister. She used to tell me that although she went to school and university here, when she started to appear for her clients in magistrates' courts, she could sense that some members of the bench treated her as someone who had just arrived from Bongo Bongo land and were very surprised when she addressed them in perfect English. Time after time she told me of the injustices she watched being done because English judges and lawyers and social workers simply did not understand the cultural dynamics of the family situation which was at the heart of a case in court.
It was Patricia who told me the story of a black child's grandmother who told a court she would willingly come 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 herself. To Patricia, and to someone of that grandmother's culture it was the most natural thing in the world for that woman to treat her child's child as her own child, but the witness had to endure questioning from a white advocate, which the judge did nothing to stop, to the effect that there must be something wrong with her own marriage for her to be willing to leave her husband in order to live with her grandchild for a while.
These, then, were some of the issues we were facing in 1991 when we first began our training effort. The line we adopted then was that it was not for judges to change society, but that they had to understand society. It was the duty of a judge to provide a fair trial. By this I mean a trial which was seen to be fair by every fair- minded person in court, black and white, winner and loser, and at the end of which the judge gave reasons for his or her decision which were seen to be equally fair.
This is why in those days my expert advisers told me to talk endlessly to judges and magistrates about oaths, names, familiar words which have more than one meaning, family structures and other things that are different for people from different cultures, important matters of religion and mistakes with body language. They all rammed home to me how crucially important these things were. I remember how pleased I was when I gave one of my standard talks to magistrates in the West Midlands. One of them, who had great experience in race relations in Birmingham, came up to me afterwards. She told me I had covered in my talk all the matters which in her experience gave rise to difficulties again and again in dealings between people of different ethnic backgrounds.
The message I was taught to give was that if people encounter what they see as shockingly bad practice over simple things like oathtaking, or if they are addressed or referred to by the wrong name, or if they are described by judges and lawyers in court in a way they find offensive (such as "coloured" or "half-caste" in an English context), then they are unlikely to be very impressed by the quality of the justice which is being provided at courts which are obviously not taking much trouble about things that are very important to them.
The advice which is given to English judges in the second edition of the Handbook is rather more complex than the advice I used to give in those early days, when I spoke to more than fifty groups of judges and magistrates over a two-year period. On page 29 of the new Handbook our early approach to training was mentioned, and then this passage appears:
"This teaching, however necessary, tended to encourage among some judges and magistrates the notion that once these `problems' could be identified and understood, there was nothing left to learn. Things have now moved on. That approach, however much it was needed at the time, is now perceived to have negative connotations. It tends to turn black and Asian people into permanent victims, instead of active participants in British life, with an equal right to receive high quality service from the courts, and an equal responsibility to contribute their own talents and experience to the business of the courts. A fresh approach is therefore needed."
The authors say that this fresh approach should not put the burden on minority communities to prove themselves, or treat them as a "problem". Instead, it should impose responsibility on those who are concerned with the administration of justice to provide a fair, just system which provides services of equal excellence to all members of the community. They suggest that if this approach is adopted, it will in turn help to restore confidence in the justice system among minority communities which is lacking at present. But they add that it is quite impossible to attempt this approach unless some fairly basic things are understood about discrimination and the ways in which it may become evident. Some wise and fairly sophisticated written advice then follows.
I have no quarrel with the advice given in this Handbook. I do quarrel, however, with a training regime which is so short of resources that it has to depend largely on the written word for getting its message across. Judges are busy people, and those who need the message most are the least likely to set aside time to read and understand the quite complicated information provided to them in the new Handbook. In my time, the Government set aside a million pounds for a training effort which enabled us to run a series of 36 24-hour residential seminars for all our full-time and part-time judges. More recently, the Canadian Government has allotted a huge sum of money for a massive programme of what they call social context education for judges which I helped to launch for senior judges in Vancouver.
I hope that one of the outcomes of this conference will be a crisp, clear message that these things are far too important to be treated as an optional extra in judicial training. Continuous attention to high quality training in these matters is essential. The publication of written advice, however wise and sensible, must be supplemented by seminars and discussion groups and videos which will bring home to judges and magistrates just what racism means and what they need to do to banish it from their courts.
In The Arthashastra, a Hindu political treatise written over two thousand years ago, these words appear:
"Judges shall discharge their duties objectively and impartially so that they may earn the trust and affection of the people."
This is what this Colloquium is all about.
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