Discrimination in Criminal Justice: Four Analytical Steps for Lawyers

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Discrimination in Criminal Justice: Four Analytical Steps for Lawyers

By Alex Benn
16 March 2021

Discrimination has always existed in the criminal justice system1. But, in the last decade, analysis and awareness of discrimination have grown significantly. Despite these developments, criminal lawyers’ understanding of discrimination can be limited and out of date. In this post, I aim to help. I outline an introductory framework for criminal lawyers to consider whether their clients have suffered discrimination and, if so, how best to address it.

 

Has My Client Suffered Discrimination?

An incident has taken place. You think that your client may have suffered discrimination, typically from the police or others involved in an investigation. Quickly, this taps into the difficult question of what discrimination involves. Some forms of discrimination are well-known, such as racism and homophobia, even if they are inadequately addressed. However, for less familiar forms, you may be hesitant to raise the issue of discrimination.

In those circumstances, consider two short questions. First, has my client been treated unfairly because they are a member of a particular group (or more than one group)? Second, does that group (or do those groups) suffer severe disadvantage in our society?2.

What Form of Discrimination Is It?

That’s the first step done. Now, turn to the form of discrimination. Although forms of discrimination change, the most entrenched are classism, racism, ableism, misogyny, homophobia and transphobia. Some will be obvious, with you being able to point to a slur to show that discrimination has occurred. Some may be more difficult to identify.

The key is not to over-simplify your client’s experience. If you do, it may undermine your relationship with your client, especially if they lose trust in your ability to understand them and to present their case. The precise nature of their experience may also be important down the line when making arguments about the discrimination. For example, imagine the case of a Muslim defendant, who lives in Blackburn, Lancashire. Before the arrest, the Body Worn Video shows the arresting officer commenting to a colleague that the defendant ‘has probably got family in the local grooming gangs’ and ‘is just another inbred in this shithole’. The stereotyping at work is racist: associating Muslim people with a system of grooming without supporting evidence. It is also classist: labelling the defendant ‘inbred’ because of where they live. Some lawyers would allege racism without mentioning classism. That might be because they aren’t used to recognising classism for what it is. But this problem comes up again and again, even with more familiar forms of discrimination, such as the experiences of racism and misogyny that women of colour suffer.

Here, use the concept of intersectional discrimination3. Kimberlé Crenshaw argues that we can’t understand the experiences of black women, for instance, just by adding together racism (understood from the perspective of black men) and misogyny (understood from the perspective of white women)4. In my example, the Muslim defendant suffers racism and classism. Note how stereotypes of family grooming and inbreeding feed off each other5. When it comes to understanding your client’s experience and making arguments about it in a complaints process or in court, keep in mind intersectional discrimination.

Is the Form of Discrimination Legally Recognised?

The current law only recognises some forms of discrimination6. The UK Equality Act 2010 protects nine ‘characteristics’: age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex, and sexual orientation7. The law of hate crime is more limited. It addresses—to varying degrees—racism, homophobia, transphobia, ableism, and religious hostility8. The Law Commission is considering reform of this area of the law, with the proposals likely to include gender and age (alongside, possibly, homelessness, sex work and ‘alternative subculture’)9.

Legal recognition does matter. It provides more obvious routes to seek a remedy: judicial review, discrimination claims, prosecutorial policy. Don’t treat legal recognition as the only criterion, though. For example, the Independent Office for Police Conduct (IOPC) has a guideline for handling complaints relating to discrimination. While the guideline uses concepts found in the Equality Act,10 it notes that the Standards of Professional Behaviour prohibit any form of discrimination—including groups not protected under the Equality Act, such as homeless people and sex workers11. The same goes for the Bar Standards Board Handbook and the Equal Treatment Bench Book.12.

 

So, you may have grounds for a complaint, even if the form of discrimination is not legally recognised. Yes, the options may be more limited. You may also have a harder time convincing your audience that discrimination has occurred, especially if the people involved didn’t think that their behaviour was discriminatory at the time. But the argument is possible.

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Alex Benn

Alex Benn is a lecturer in law at University College, Oxford, focusing on criminal law and discrimination law. Alex is currently undertaking pupillage with Red Lion Chambers.

"I try to put the law in its broader context as a tool of powerful groups, which involves looking at the widespread discrimination that exists in criminal justice."

How Is the Discrimination Legally Relevant?

Even if the form of discrimination isn’t recognised as a protected ground in law, it may be legally relevant in other ways. One illustration comes from the law of confession evidence. When interpreting ‘oppression’ under section 76(2)(a) of the Police and Criminal Evidence Act 1984 (PACE), any form of discrimination may be important. For instance, if police officers refer to a suspect by using misogynist, classist and/or racist slurs during an interview, the concept of discrimination may help you to show the severity of unfair treatment.

Beyond the usual claims under the Equality Act and judicial review, other places where discrimination may be relevant in criminal justice include:

  • Complaints to the IOPC (above) and other regulatory bodies.
  • The prohibition of ‘degrading’ treatment for the purposes of Article 3 of the European Convention on Human Rights13.
  • The defendant’s perception of circumstances in certain defences, such as assessing reasonable force in self-defence14 and the gravity of the situation in the partial defence of loss of control15.
  • Cross-examination of police officers and others involved in the investigative process. This applies, in particular, to certain investigative tools with discriminatory biases, such as the Gangs Matrix16.
  • Mitigation in sentencing, usually when the discrimination relates to the circumstances in which the defendant committed the offence(s).
  • Monitoring language used in court proceedings, especially when it comes to words and phrases likely to prevent everyone in the courtroom understanding the proceedings17. This may also justify an objection during examinations when an advocate uses discriminatory language and ideas (such as pushing a characterisation of a black witness as ‘angry’ without clear, supporting evidence).

With discrimination saturating criminal justice, these steps only scratch the surface. Still, they may help lawyers to become more familiar with discrimination and to consider how to combat it by using tools that already exist.

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  1. For just one well-known example, see The Stephen Lawrence Inquiry (‘The Macpherson Report’, 1999).
  2. For a similar conceptual framework, consider Tarunabh Khaitan, A Theory of Discrimination Law (2015) 155.
  3. Crenshaw, ‘Demarginalizing the Intersection of Race and Sex’ (1989) University of Chicago Legal Forum 139; Cho, Crenshaw and McCall, ‘Towards a Field of Intersectionality Studies: Theory, Application, and Praxis’ (2013) 38(4) Signs 785.
  4. Crenshaw, ‘Demarginalizing’ (above) 139-140.
  5. For discussion of classism and racism in policing, see Akala, Natives: Race and Class in the Ruins of Empire (2018) 174-178. More generally, see Jones, Newburn and Reiner, ‘Policing and the Police’ in Liebling, Maruna and McAra (eds), The Oxford Handbook of Criminology (2017) 769.
  6. For more, see Benn, ‘The Big Gap in Discrimination Law: Class and the Equality Act 2010’ (2020) 3(1) Oxford Human Rights Hub Journal 30, available at ohrh.ox.ac.uk and ssrn.co.uk.
  7. Equality Act 2010, s 4.
  8. Crime and Disorder Act 1998, ss 28-32; Criminal Justice Act 2003, ss 145-146.
  1. Law Commission, Consultation Paper No 250 (2020), available at lawcom.gov.uk; Benn, ‘Classism, Hate Crime and the Law Commission’s Consultation Paper 250: Lessons from Discrimination Law’ (12th February 2021) Oxford Human Rights Hub Blog, available at ohrh.ox.ac.uk.
  2. IOPC, Guidelines for Handling Allegations of Discrimination 2.
  3. IOPC, Guidelines (above) para 1.8, though there is no reference to classism in the guidance.
  4. Bar Standards Board Handbook (December 2020), e.g. rC12; Judicial College, Equal Treatment Bench Book (February 2021) 298.
  5. See the relevance of age in Bouyid v Belgium App No 23389/09 (28th September 2015) ECtHR.
  6. Criminal Justice and Immigration Act 2008, s 76(3).
  7. Coroners and Justice Act 2009, ss 54(1)(c), 55(4).
  8. Amnesty International, ‘What Is the Gangs Matrix?’ (18th May 2020), available at amnesty.org.uk; Nwosu, ‘The Gangs Matrix – Racialised Policing & How Lawyers Are Pushing Back’ (17th August 2020) Legal Lifelines, available at legallifelines.co.uk.
  9. E.g, on avoiding language in court that discriminates against trans and gender non-conforming people, see Judicial College, Equal Treatment Bench Book (February 2021) 340-341.