Select Committee on Home Affairs Written Evidence

18.  Supplementary memorandum submitted by Dr Marian FitzGerald, Specialist Adviser to the Committee


  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.


  1.1  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.


  2.1  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).


  3.1  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:

    —  age structure;

    —  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:

    —  offending history;

    —  type of offence;

    —  plea;

    —  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.


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).


  5.1  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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