18. Supplementary memorandum
submitted by Dr Marian FitzGerald, Specialist Adviser to the Committee
ABSTRACT
The focus on eliminating discrimination within
the criminal justice system has been at the expense of addressing
wider factors which may increase the risk of young people from
the various "black" groups coming to the attention of
the system in the first place. Redressing this balance does not
mean choosing between discrimination and socio-economic factors;
but measures to tackle discrimination alone will do little to
reduce "disproportionality".
However, improvements are needed in the quality,
analysis and presentation of ethnic data—not least:
(a) in order to provide more accurate pointers
to how and where any discrimination may be occurring; and
(b) to avoid publishing crude data which,
by failing to control for relevant variables, repeatedly show
black people to be overrepresented in crime statistics and may
thereby reinforce spurious racist assumptions about a link between
ethnicity and criminality.
For policy purposes, the submission proposes
that ethnic data should in future be used more routinely to monitor
the outcomes of generic policies for different ethnic groups;
but this is likely to pose particular dilemmas in the context
of criminal justice policies.
1. INTRODUCTION
1.1 Longstanding concerns about the overrepresentation
of black people in the criminal justice system (CJS) (see for
example Rose et al 1969) were highlighted again by the 1999 report
of the Macpherson Inquiry. The main focus of this concern has
been discrimination within the CJS and Macpherson focused in particular
on police searches in this context.
1.2. However, discrimination alone is unlikely
to explain the level of overrepresentation of black people at
all stages of the system and in the homicide statistics[151]
compared to people classified as white or Asian (Figure 1). So
the Committee will need to take account of any relevant factors
in addition to discrimination, especially where these may
have policy implications.
1.3 This submission therefore focuses on
a number of factors which are not specific to any ethnic group
but which are commonly recognised to increase the risk of young
people's involvement in crime. For the larger the number of these
risk factors at work in the lives of young black people, the more
their interaction will multiply the chances of their coming to
the attention of the CJS.
1.4 The submission first unpacks the different
components of the "Black" category before looking at
the extent to which these are affected by a variety of risk factors.
It then provides research-based examples of what happens when
these and other non-ethnic variables are controlled for in analysis.
And it concludes by outlining some of the analytical and policy
issues this raises.
1.5 All the statistics cited are based on
analyses of Census data and of the Home Office s95 publications
on "race" and the criminal justice system unless otherwise
indicated. The figures referred to in brackets are shown in the
appendix.
2. THE "BLACK"
GROUP IN
CONTEXT
2.1 The largest "black" group
in Britain following the main period of post major immigration
from Britain's former colonies originated in the West Indies.
However, that picture has now changed significantly as a result
of two main factors—increased immigration from elsewhere
in the world and the extent of unions between black and white
people. This means that the make-up of the omnibus "Black"
category varies considerably depending on age; and in future the
majority of Black people will be of mixed black-white heritage
and miscellaneous African origins.
2.2 The regional distribution of these
groups is very different from that of the population overall;
but it also varies somewhat between them (Figure 3a). The majority
of black Africans, "Other" black people and black Caribbeans
live in London; but the mixed groups are rather more dispersed
with less than a third of people of mixed white/black Caribbean
heritage living in the capital.
2.3 Distribution varies again at sub-regional
level; and, in particular, the proportion of black people in the
population tends to increase with the level of deprivation. In
London a comprehensive set of statistics was compiled for each
borough and the boroughs were then grouped according to their
ODPM deprivation scores. These borough profiles showed that the
black population increases with the level of deprivation (Figure
3b), as does the presence of other, poorer minorities; and so
does the level of crime (FitzGerald 2003).
2.4 Young people in the black and mixed
groups are much more likely to live in lone parent households
than young people in other groups (Figure 4a); and these are typically
headed by a lone mother. Around a quarter of mothers of Caribbean
origin are aged under 20 when their first child is born and the
majority of these are single (Robson and Berthoud 2003). In the
case of young people of mixed ethnic origins, the parent is most
often a white mother (Owen 1996).
2.5 Additionally, households in all of the
black groups have much higher than average proportions of people
living alone (Figure 4b). No gender breakdown is given in the
published Census outputs, but from the high proportion of lone
parent households headed by women in these groups, it may be inferred
that a very high proportion of males in these groups are living
alone.
2.6 Department of Health statistics show
that the number of black children in care is also higher than
average; and this is particularly true of those of mixed heritage
(Figure 5a). However, there are important differences in the reasons
for this (Figure 5b), with children in the black[152]
group more likely to suffer from absent parenting rather than
abuse or neglect.
2.7 In terms of education, DfES statistics
show that black boys' level of attainment has already dropped
off relative to whites by the age of 10 (Key Stage 2) and the
trend is steeper once they get to secondary school (Figure 6a).
Black girls' attainment also progressively diverges from their
White British counterparts—but not to the same degree (Figure
6b). So the gender gap is much larger for black young people by
the GCSE stage, with boys of mixed heritage and those of black
Caribbean origin faring particularly badly (Figure 6c).
3. THE EFFECT
OF CONTROLLING
FOR NON-ETHNIC
VARIABLES
3.1 A wide range of non-ethnic factors needs
therefore to be taken into account when interpreting the reasons
for the rate at which different ethnic groups come to the attention
of the criminal justice system in the first place. Comparing like
with like means recognising that young men in the lower socio-economic
groups with fewest qualifications are most "at risk";[153]
and analyses of data in terms of entry to the CJS, therefore need
to make allowance (at least) for ethnic differences in:
— deprivation (in terms of education,
employment, income, neighbourhood etc);
— residence in high crime areas (where
the risk of getting involved in crime is higher but so too is
the presence of the police); and
— marital status—especially in
relation to young men where lifestyle factors associated with
being single may de facto increase the likelihood of coming
to the attention of the police.
3.2 Once in the system, further account
needs to be taken at each key decision-making point of any other
systematic differences between different groups. An overview of
the relevant research (FitzGerald 1993) shows that the main variables
which need to be controlled for when analysing outcomes within
the system are ethnic differences in:
— the bail/remand decision; and
— election for Crown Court trial in
either-way cases.
3.3 Remarkably little empirical work has
explored how far these factors contribute to the overrepresentation
of black people in the CJS relative to their presence in the population
at large (commonly referred to as "disproportionality").
But key examples of what exists are the following.
Differences in patterns of offending
3.4 The study of street crime for the Youth
Justice Board (FitzGerald, Stockdale and Hale, 2003) explored
the reasons for differences in street crime between London boroughs.
Black "overrepresentation" was particularly stark in
this context where black people accounted for 60% of suspect descriptions
compared to 30% for overall crime in London. When the study modelled
the street crime figures against many socio-economic and demographic
variables at borough level, though, it found that ethnicity was
not significant. Street crime was higher in boroughs with higher
than average black populations but the reasons were:
— the general level of deprivation
and the proportion of households with dependent children but no
earning adult;
— access to people in the same area
who were not deprived (and therefore likely to be worth robbing);
and
— population turnover (implying both
a greater degree of anonymity for offenders as well as lower levels
of communal control).
"Availability" to the police
3.5 Deprivation means that a much higher
proportion of black people live in high crime areas which are
not only more intensively policed but where the style of policing
also tends to be more adversarial (FitzGerald, Hough et al 2002).
However, the public do not only encounter the police in their
own neighbourhoods; and many factors will influence the extent
of these encounters, including the distances people travel and
the frequency with which they are present in public space.
3.6 Comparisons solely with local population
figures, therefore, are likely to be misleading—certainly
in the context of police searches; and evidence to this effect
is growing. Work by the Home Office (MVA and Miller) and independent
studies by academics for individual police forces (Waddington
et al 2004) show that the population on the streets where searches
are most likely to occur is systematically different from that
of the local resident population. Comparisons with the relevant
"street population" instead of the local Census figures
significantly reduce ethnic differences in searches and they may
disappear entirely.
Differences in outcome within the system
3.7 A relatively early study of juvenile
cautioning showed that significant ethnic differences disappeared
when allowance was made for black juveniles' greater likelihood
of denying the offence so they were not eligible for a caution
(Westwood 1991). By far the most sophisticated study of outcomes
within the CJS, though, remains Hood's 1992 study of custodial
sentencing at selected Crown Court centres in the West Midlands[154]
where 56.6% of black men received a custodial sentence compared
to 48.4% of white men.
3.8 Once a wide range of other factors were
taken into account, this difference of 8.2 percentage points reduced
to 2.5 percentage points. Importantly, no differences were found
at the Crown Court centre from which most of the cases were drawn;
so the inference must be that:
(a) most individual defendants were treated
equally by the Crown Court but
(b) in the case of the small minority of
individuals who were sent to custody unfairly, this was as a result
of decisions made by particular sentencers in particular centres
rather than reflecting generic bias across the whole of the system.
4. SOME IMPLICATIONS
Data issues
4.1 The data currently available on ethnic
minorities and the CJS use crude categories. A full breakdown
by the standard Census codes is only available for the prison
statistics, with the further important facility of being able
to separate out foreign prisoners from British nationals (see
4.3). Also, the published outputs for different agencies increasingly
use a slightly different set of categories, with some including
a "mixed" group which does not directly map on to the
data provided by the police in particular. Nor (as section 1 illustrates)
are other relevant data routinely published using the full Census
codes.
4.2 Significant gaps also remain in our
knowledge at the centre of the criminal justice process with regard
to the CPS and the courts; and even where figures are kept, they
are limited particularly in regard to young people. In 2004-05
the number of young people supervised by the Youth Offending Teams
whose ethnicity was not recorded (9,540) was actually larger than
the figure for any minority other than the black group (17,216),
making any inter-ethnic comparisons with regard to young people
unreliable (YJB 2006). Age breakdowns are not routinely available
in other statistics, though; and special studies are usually required
in order to link ethnicity with other relevant variables for the
purposes of exploring the reasons for any "disproportionality".[155]
4.3 The comparisons which are currently
made between the crude headline figures for different ethnic groups
are unhelpful and potentially dangerous for several reasons; and
comparisons based on "per thousand population" are especially
misleading—not least because of:
— the known undercount in the Census
of young men in inner city areas;
— the disproportionate number of young
men from particular minorities within this; and
— the unknown extent to which those
who come to the attention of the police may not, in any case,
normally (or legally) be resident in Britain.
Also, trend data which consistently show one
particular group to be "overrepresented" in recorded
crime despite significant efforts over many years to reduce "disproportionality"
may unintentionally have the effect of reinforcing prejudices.
That is, the figures may lend themselves to "statistical
racism" since they may be used to support the view that the
group in question is inherently more criminal than others.
Policy implications (general)
4.4 Unless we can compare like with like
both in terms of the numbers entering the system in the first
place and of decisions at subsequent decision-making points, it
is impossible to know the extent of any discrimination, still
less where and how it is occurring. If, instead, discrimination
is simply inferred from crude headline figures, the responses
to it are likely to be misconceived; so they are likely to be
ineffective and could even prove counter-productive. Meanwhile,
ongoing neglect of the wider factors at work will perpetuate the
problems faced by successive generations of young black people.
These are problems they share with people in most other ethnic
groups; and, although black groups may be disproportionately affected
by them, they only account for a minority of those affected.
4.5 For the most part, therefore, the appropriate
policy response will be generic rather than specifically targeted
at black people. For example, policies with regard to teenage
pregnancy, approaches to neighbourhood renewal, efforts to tackle
the underachievement of poor boys, ensuring single working mothers
have access to good affordable child care etc cannot be restricted
to any particular minority. The role of ethnic statistics, though,
lies in monitoring:
(a) whether the profile of those who participate
in specific programmes or receive particular benefits accurately
reflects the level of need; and
(b) whether the outcomes of any generic programmes
are equal for all groups.
4.6 This approach is needed (but relatively
uncontroversial) in policy areas such as health, education and
local government services. However, it may prove more challenging
with regard to criminal justice policies.
Implications for criminal justice policy
4.7 Since criminal justice policies will
disproportionately affect groups who are at greatest risk of crime
in the first place, they will demonstrably have a greater impact
on the more disadvantaged minorities, including the "black"
groups. This has specific implications throughout the CJS—as
illustrated by police searches and trends in sentencing.
4.8 Two reasons why searches have traditionally
been such a flashpoint in police-community relations are the fact
that they take place in public and that the majority do not result
in an arrest—so a large proportion of those who are subject
to this potentially adversarial experience will be innocent members
of the public going about their lawful business. The majority
of searches on all groups are under s1 and the arrest rate has
fluctuated between 13 and 15%. However, there have been significant
increases over recent years in searches under s60 of the 1994
and searches under s44 of the Terrorism Act 2000 and these have
a more disproportionate impact on minorities than s1 searches
(Figure 7). Arrest rates under each in the financial year 2004-05
were very low, at 3% and 1% respectively.
4.9 Even if there were no discrimination
in searches, therefore, as long as some groups have a higher risk
of being the legitimate target of searches, disproportionate numbers
of innocent people in those groups will be searched. The fact
that this has been the experience of black people for decades
has resulted in a deep-seated sense of grievance; for black people
with no criminal involvement are right in assuming that they are
more likely to be searched when they are going about their lawful
business than they would if they were white. Yet the police might
genuinely claim that searches are now more "intelligence-led"
than ever and that the ethnic profile of s1 searches simply reflects
that of the suspect descriptions the police receive.
4.10 Huge investments in training, in revising
codes of practice etc since Macpherson which have been predicated
on assumptions of discrimination have done nothing to resolve
this impasse. Rather, "disproportionality" has increased.
Where black people comprised 11% of all s1 searches in 1997-98,
by 2004-05 the figure was 14%. For these reasons, it will be important
for the Committee to avoid getting bogged down in the endless
debate about the reasons for "disproportionality" in
searches but address the central tension between increasing the
numbers of searches (whether by accident or design) and the disproportionately
adverse impact this will inevitably have on particular minorities.
4.11 Similar dilemmas arise with regard
to the significant increases in the use of custodial sentences
in recent years, since, inevitably, these have not fallen evenly
across all groups either. Between 1997 and 2004, the number of
white British male prisoners rose by 5%; but for their black counterparts
the figure was 21% (rising to 42% in the case of British Pakistanis).
5. CONCLUSIONS
5.1 Measures to tackle actual or potential
discrimination within the criminal justice system are essential;
but they need to be based more firmly on evidence about exactly
how and where any such bias may occur. Of themselves, though,
such measures may make very little difference to overall levels
of "disproportionality". Meanwhile, persisting in publishing
crude figures which make no allowance for differences between
groups and which show little or no change in "disproportionality"
will not only continue to undermine police-community relations,
they may unwittingly also reinforce negative racial stereotypes.
5.2 Other measures will additionally be
needed in order to break the cycle which for several generations
has increased the risk of young black people of Caribbean origin
coming into the CJS in disproportionate numbers. To varying degrees,
these are now affecting other black groups, including a rapidly
increasing number of young people of "mixed" ethnic
origin. The same factors may also affect young people from other,
disadvantaged minorities as well as very much larger numbers within
the undifferentiated "white" majority; and this adds
further to the urgency of strengthening a wide range of economic
and social policies which will address the causes of youth crime
in general. The effectiveness with which these policies are implemented
should be monitored in terms of whether they can be shown "disproportionately"
to be benefiting the groups in greatest need.
5.3 At the same time, it will be essential
not only to monitor the impact of criminal justice policies at
both the national and the local level post hoc. Any new
initiatives or policy developments should routinely be subject
to the race impact assessment process required by the 2000 Race
Relations (Amendment) Act.
Marian FitzGerald
Visiting Professor of Criminology
Kent Crime and Justice Centre, University of Kent
June 2006
REFERENCES Feilzer,
M and Hood, R (2004) Differences or Discrimination? London.
Youth Justice Board.
FitzGerald M (2003) Borough Profiles. Unpublished
report for the Metropolitan Police Service (MPS). (Borough level
tables, with group averages available on request.)
FitzGerald M, Hough, M, Joseph, I and Qureshi,
T (2002) Policing for London. Willan Publishing.
FitzGerald M and Marshall, P (1996) "Ethnic
Minorities in British Prisons: Some Research Implications"
in Matthews, R and Francis, P (eds) Prisons 2000: an International
Perspective on the Current State and Future of Imprisonment. Macmillan.
FitzGerald M, Stockdale J and Hale C (2003)
Young People and Street Crime. Youth Justice Board
Hood R (2002) Race and Sentencing. OUP.
MVA and Miller, J (2000) Profiling Populations
available for Stops and Searches. Police Research Series Paper
131. London. Home Office.
Owen D. (1996) "Black-Other: the Melting
Pot" in The Ethnic Minority Populations of Great Britain
(ed Peach C) Office of Population Censuses and Surveys.
Robson K and Berthoud R (2003) Early Motherhood
and Disadvantage: a Comparison between Ethnic Groups. ISER
Working Papers 2003-29. Institute for Social and Economic Research.
Rose E J B and Associates (1969) Colour and
Citizenship Institute of Race Relations/Oxford University
Press.
Waddington P A J, Stenson K and Don D (2004)
In Proportion: Race, and Police Stop and Search. British
Journal of Criminology, Vol 44 (pp 1-26).
Westwood D (1991). Cautioning and the Limits
of Ethnic Monitoring. Probation Journal. March.
YJB (2006) Annual Statistics 2004-05. Youth
Justice Board.
151 The homicide figures are the only official victimisation
data for which ethnicity is recorded. Back
152
Unfortunately this source does not further disaggregate the
"black" category. Back
153
The characteristics of white prisoners, for example, are systematically
different from white people in the population at large-and far
more similar to those of black prisoners (FitzGerald and Marshall
1996). Back
154
This involved entering details from the individual files on
a sample of over 3,000. The subsequent study of the juvenile justice
system (Feilzer and Hood 2004) relied instead on Youth Offending
Team data bases where much potentially relevant information was
missing. Back
155
It is worth noting that taking this approach may actually highlight
potential causes for concern among groups who were not "overrepresented"
according to the headline figures. Back
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