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The Jersey Law Review – October 2006
A FAIR HEARING? ETHNIC MINORITIES IN THE CRIMINAL COURTS by STEPHEN SHUTE, ROGER HOOD, AND FLORENCE SEENMUNGAL (Eds.). Devon: Willan Publishing, 2005. ix, 160 pp.
1 This book is based on questionnaire research which investigated the experiences of ethnic minority, as well as white, defendants and witnesses in the English criminal courts between 2000 and 2002. It examines in particular the extent to which black and Asian people who had appeared in both the Crown court and the Magistrates’ courts perceived their treatment to have been unfair, whether they believed any unfairness to have been the result of ethnic bias, and whether this had affected their confidence in the criminal courts of England. The research on which this monograph is based is concerned with such perceptions and beliefs held by minority ethnic citizens who have come into contact with the criminal courts. It is the first large-scale study in Britain to have concentrated on how minority ethnic defendants and witnesses experienced their treatment, as compared with white defendants and witnesses. It raises the question of the extent to which those members of ethnic minorities who felt they were not treated fairly and with equal respect by the criminal courts believed that this was due to discriminatory treatment based on their race, colour or culture.
2 The study on which this monograph is based was carried out by the Oxford Centre for Criminology in association with the University of Birmingham for the Lord Chancellor’s Department (now the Department for Constitutional Affairs). The first fruits were published as a report by the Lord Chancellor’s Department: Ethnic minorities in the criminal courts: perceptions of fairness and equality of treatment. With the Department’s support, that report has been transformed into this monograph in the hope that the findings will reach a wider audience. In undertaking the transformation, the authors have tried to place the research in the broader context of concerns that have been expressed over the last fifteen years or so about the treatment of minority ethnic people by the English criminal courts. The authors have also rearranged the ordering and presentation of the findings and augmented the text in various ways. This book involved observations of cases and interviews with more than a thousand people (defendants, witnesses, barristers, solicitors, judges, magistrates and others), and focused on courts in Manchester, Birmingham and London. This book contains eleven chapters and begins by showing how widely held the belief has been that ethnic minorities are discriminated against by the courts and by other agencies in the English criminal justice system. It discusses the factors that have contributed to this belief, especially the large over-representation of black people in prison. Therefore, this study is concerned primarily with the views of minority ethnic defendants in both the Crown Court and Magistrates' Courts. But these are not, of course, the only persons who have experience of the criminal courts, nor the only persons who have a perspective on how courts respond to ethnic minorities who appear before them. For this reason, the authors also canvassed views (although on a smaller scale) from witnesses, court staff, lawyers and legal representatives, magistrates, district judges, recorders and circuit judges. The scope of the questions put to them will become apparent when the authors discuss their responses later in the monograph.
3 The main part of this book then looks at the institutional setting in which the research took place, the experience of defendants and witnesses, their views of how they were treated by the criminal courts of England, and the views of others involved in the court process. So, the authors begin the analysis of the findings of this research by describing in chapter three the institutional settings of, and 'ethnic balance' in, the criminal courts in which the study was carried out, as well as the main characteristics and prior experiences of the courts of the defendants who were interviewed. Chapter four, the heart of the study, reports on the defendants' and witnesses' perceptions of their treatment at the hands of both the Crown Court and Magistrates' Courts. It attempts to assess the incidence of perceived unfairness and to identify how often and in what ways the treatment - both the procedures and the decision- making- accorded to those interviewed had been regarded as racially biased. In chapters five and six the authors explore the extent to which defendants and witnesses generally had confidence that the criminal courts would treat them or others in a fair and unbiased way and the extent to which their views had changed as a result of their recent experience. Chapters seven and eight look at the question of how fairness towards ethnic minorities is perceived by those who administer or have a professional role in the criminal courts-court staff, lawyers, judges and magistrates. The authors also explore attitudes towards 'ethnic awareness' training. Chapter nine discusses the experience of witnesses. Chapter ten examines how far attitudes and behaviour towards ethnic minorities are perceived to have changed over time and identifies a 'cultural shift' towards the elimination of behaviour which might give rise to perceived racial bias in the criminal courts. The views of all parties on what still needs to be done to improve the confidence of ethnic minorities in the criminal courts are presented in chapter eleven. This chapter draws together the findings, discusses their implications, and suggests some ways in which the system might be improved so as to reduce yet further the number of cases in which minority ethnic defendants perceive themselves to have been unfairly treated simply they are from an ethnic minority. So, final chapters in this book address the issue of sensitivity to ethnicity on the part of judges, magistrates and lawyers. They show that attitudes and practices are perceived to have changed for the better but conclude that more needs to be done to increase the confidence that members of ethnic minorities have in the fairness of the English Criminal Courts.
4 A Fair Hearing? Ethnic minorities in the criminal courts is a well informed and well argued book that should be welcome as a substantial contribution to scholarship on English criminal justice system. This book ought to be an extremely useful resource for anyone engaged in the study of the criminal courts in England.
5 Today’s observers and scholars of the English criminal justice system are awaiting this kind of publication. They are interested in understanding new information relevant to their studies. The conceptual framework and arguments in this monograph present windows of opportunity and challenges that await those readers.
6 Overall, this book is an informative, important, interactive and stimulating perspective of the English Criminal Justice System. It lays the foundations for future scholarly inquiry into unanswered questions and emerging ones. Scholars, advocates and law students should buy this book.
Ali Adnan Al-Feel (B. A., M. A.) is an assistant lecturer in Criminal Law in the Public Law Department of the University of Mosul, Iraq.
LAWS OF GUERNSEY by GORDON DAWES Hart publishing, Oxford, 2004 lxxxiv + 789pp. ISBN 4 1-84113-396-5. £130.
A CELEBRATION OF AUTONOMY 1204 – 2004: 800 years of Channel Islands’ Law ed. by PHILIP BAILHACHE, Jersey Law Review, 2005 viii + 292 pp. ISBN 0-9535903-7-2.
1 When UNESCO begins to declare World Legal Heritage Sites, and when Cunard begins offering leisurely juridico-cruises to quaint jurisdictions, legal tourists will flock to the Channel Islands. It is not just that they are micro-jurisdictions: there are plenty of those round the world. The Channel Islands are juridical Galapagos Islands. In their long history they have made use of Norman customary law, French law, English law and Roman law and have thereby produced something unique. Most micro-jurisdictions have substantive law that is a fairly modern copy from another system, but not the Channel Islands. Considering that their combined population is only about one third of Edinburgh’s, this phenomenon is remarkable, though not unparalleled: for example Andorra has a unique system of substantive law, with a population of just 70,000. But the Islands have a trump card. In the first place the two bailiwicks (Guernsey and Jersey) are independent of each other (though sharing a Court of Appeal), and have legal systems which are by no means the same. But it does not stop there. The Bailiwick of Guernsey (population 60,000) is itself magnificently divided into three distinct legal systems, namely Alderney, Guernsey (in the narrow sense), and Sark.
2 The smaller a jurisdiction, the fewer the cases, the fewer the jurists, and the fewer the books. The literature on the laws of the Islands is tiny, and the two works reviewed in themselves constitute an important addition. A Celebration of Autonomy is the result of a conference held in 2004. Does it sound worthy but dull? It isn’t. These Galapagos Islands are suffering ecological stress and their survival is uncertain. From these pages, one can hear the gunfire of a bellum juridicum. One hears the same from the pages of the Jersey Law Review, as in the 2004 “citation debate” between Richard Southwell and Gordon Dawes, who also contribute to the present volume. Tiny legal systems have a special need to be able to look beyond their borders for inspiration when confronted by new problems. What sources are citable? Southwell was disturbed that Roman, Scots and South African law should be cited in court. He suggested legislative prohibition. Perhaps he had in mind such cases as Haas v Duquemin in which Hodge JA, the other members of the Court of Appeal concurring, cited Roman, Scots and South African law. It is a tradition that one of the judges of the Court of Appeal should be a Scots lawyer, and “Hodge JA” was Patrick Hodge, who now graces the Court of Session bench. In a Celebration of Autonomy Southwell takes up the debate where it had been left off. Hodge is the author of the next chapter. It is called “The Value of the Civilian Strand”.
3 Comparatists often underestimate the importance of language. Why is the French legal tradition stronger in Quebec than in Louisiana? Perhaps because in the former French remains the majority language, whereas in the latter it is now spoken only by a rural minority. For hundreds of years the Islands, though politically connected to England, had a substantive law that shared largely in the character of the country whose shores are only a few miles distant. Only in the 20th century was French replaced by English as the language of legislation. Today the Islands are overwhelmingly anglophone: today the legal influences are overwhelmingly English. If an archangel, or devil, were to alight and make the Islands francophone, perhaps the tide of influence would begin to flow in a different direction. A Celebration of Autonomy has just one contribution in French. Even that is followed by an English translation. Alas, that no doubt reflects modern reality. The “citation debate” has a linguistic dimension. Given the anglophone character of the modern Islands, if their law is not to be become a mere local variant of English law, increasing use is going to have to be made of materials from systems that have a substantial civilian tradition but which publish partly or wholly in English, such as Louisiana, Quebec, Scotland and South Africa. But such materials are not easily accessible to those working in St. Helier or St. Peter Port. Indeed, even some of the “institutional” works, such as Guillaume Terrien’s Commentaires du Droict Civil, are rare. Perhaps the Islands need a good comparative law library, and perhaps works such as Terrien’s need to be reprinted. But all this would cost money.
4 Does it make sense for tiny systems of substantive law to exist? Opinions will differ. As the Sabbath was made for man, not man for the Sabbath, so laws were made for men, not men for the laws, and it is understandable if there are those in the Islands who, in what they see as the interests of pragmatism, would prefer their law to become a local variant of English law. (Or, one might add, of French law, but that possibility is seldom discussed.) The only difference from English law that many there would enthusiastically wish to preserve is tax law. But the opposite view is equally understandable: there are those who see law as being, among other things, part of a cultural heritage, a matter of identity, and it is evident that there are those in the Islands who see things thus. Their voices too will be heard in this volume. For them T.B. Smith’s aphorism may resonate: “We are the fideicommissaries of the past and fiduciaries for the future”. (Studies Critical and Comparative, p 88).
5 If a system of substantive law is to survive it needs many things. One is education. Here the Islands have a hitherto unsolved problem: being too small to have a university of their own, they have no university law school. Guernsey, but not Jersey, requires of its lawyers a short period of attendance at the University of Caen. But at all events the Islands seem to lack the benefits that an academic legal culture (whatever its accompanying faults) can bring. Take one example. In 2002 the Jersey Law Commission published a consultation paper called The Jersey Law of Contract, provisionally proposing the replacement of Jersey contract law by English contract law. The paper does not mention the current developments in harmonising and even unifying contract law that are taking place at the European and international levels. What is said of the UNIDROIT contract code? It is not mentioned. What, then, is said of PECL, which already in 2002 was being seen by many as the basis of a new European contract law? It is not mentioned. Nothing is said of the new European private law. A digital search for the word “European” yields only one hit: a footnote reference to European Legal History by Olivia Robinson, T.D. Fergus and Bill Gordon. Do I criticise? No. My purpose is to explain. In a stronger legal-academic culture would such a consultation paper have come to the same provisional conclusion? In the absence of the archangel, one cannot know. But one thing one can know: the process of deliberation would have been broader and deeper.
6 A system of law needs a literature, and a literature needs writers and readers. In a small population both must be few, and the absence of an academic environment makes things more difficult, for one thing that academics will do is write, and not always nonsense. In these circumstances it is a miracle that anything at all is published: perhaps after all the archangel is at work. Dawes’ book is an immense achievement, and there must be those in Jersey who wish that a comparable volume could be produced for their jurisdiction. In turning the pages one does not find displayed a strongly civilian landscape: the Islands, rooted in Norman customary law, never had a thoroughgoing civilian reception. If their substantive law is to survive as more than a local variant of English law, it may be that it needs to move a little more in the civilian direction. But precisely these issues are those in debate. The world will watch with interest.
George Gretton is a professor of law at Edinburgh University
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