Law is produced by the most powerful in any society and inevitably it reflects their concerns and interests and is the product of their world view. Of course, decent parliamentarians from both left and right, and judges too, create or develop law with an eye to societal cohesion. They are not oblivious to the ways in which law is an important instrument in creating normative behaviour, and know that exclusionary law can lead to social disruption. The system is therefore constantly tweaked and rearranged to ameliorate some of its worst failings, but at the core of its failures is its ownership. The experience of the legal system by those who are the brokers of power is of a very different order from those of the working class to whom it has never given much comfort. However, there is a double burden for ‘the other’, those who diverge from the norm in terms of race, sexuality, religion or other status which places them at the margins of the page, making them different. People who are black, Asian or of other minority ethnic background, foreign nationals, refugees, gays, lesbians, people who are transgender – too often such people experience the law as particularly oppressive and punitive.
The brutal murder of Stephen Lawrence in 1993 was an iconic event. His killing by a group of white thugs and the bungled investigation by the police sparked off a long period of soul-searching in British society. Stephen’s mother Doreen Lawrence has been the keeper of the public conscience, constantly reminding the nation that in a civilised society there must be justice for all. The subsequent inquiry into the death of Stephen was led by a retired judge, Sir William Macpherson, and the Macpherson Report in 1999 found that the police were institutionally racist. It was a moment of hope for black people and the government pledged to stamp out racism in the criminal justice system. Subsequent legislation – most recently the Equality Act 2010 – places a positive duty on public services to promote equality in every area of work, although immigration is noticeably excluded from its scope.
Despite this genuine commitment to racial equality, the government often loses a sense of what the implications of new policy agendas will be for racial minorities and race relations. For all the rhetoric of anti-racism, immigration and asylum policies feed into hostile views about those who are seen as ‘other’. The effect has been particularly acute in recent years, with large numbers of people forced to migrate to escape war, persecution and conflict, and politicians of all stripes willing to exploit public prejudice towards migrants. The erosion of civil liberties invariably also has a disproportionate effect on minority communities. Leaders of black, Asian and minority ethnic communities, male and female, know that changes in legal protections and lowering of standards will have the greatest impact on the most vulnerable. They know that BAME people will take the biggest hit. Public debates about racism implicitly refer to black or Asian men while similar debates about gender discrimination have white middle-class women in mind. The inability of policymakers to see the simultaneous interaction of multiple discriminations is a continuing problem for BAME women.
The issue of race is highly contentious in legal circles. Incredibly, most judges still do not accept that the colour of a person’s skin in any way affects their judgments, even if it is suggested that attitudes and biases may be unconscious or that discrimination can be indirect. Many see racial disadvantage as rooted in society, requiring a political resolution, and as outside the province of the courts. They describe their function in a mechanistic way as the application of ‘the law’, an impartial set of rules, without fear or favour and regardless of sex, colour or creed.
In September 2017, David Lammy MP published a review of how the criminal justice system treats people from BAME backgrounds. It found that although BAME people constitute approximately 14% of the population, they make up 25% of the prison population. Over 40% of young people in custody are from BAME backgrounds. Black women are significantly more likely to be arrested than white women. The number of Muslims in prison has increased by nearly 50% in the last decade.
There are still those who choose to interpret the statistics as proof of a particular propensity to criminality among BAME people. Such crude views defy contradiction or rational debate. Ever since the early 1990s, when Roger Hood of the Cambridge Institute of Criminology for the Commission for Racial Equality conducted his seminal study into race and sentencing, the idea that there is no sentencing differential between defendants of different races has been totally debunked. Yet there has always been resistance to any suggestion of racial bias in the system. Home Office research in the same period claimed little difference in outcomes for white and black accused, but when white Irish were taken out of the frame the picture changed. The prejudice faced by the Irish community, particularly in the wake of Irish terrorism, distorted any simple comparison by race and created a more favourable impression than was the truth. Minus the Irish, the differences between what happened to black offenders and white offenders became quite stark.
The unwillingness to admit that the problem exists arises because those involved in the administration of justice know the courts must be above reproach – the one area of society which should be beyond doubt. The legal establishment can accept that people may be discriminated against in education or employment because of their colour, but insist that in court the problem is in the minds of defendants (which they consider unsurprising since recipients are rarely satisfied with the justice of their deserts).
For many years, the lack of concrete data on the law’s disproportionately severe treatment of BAME people also proved a formidable obstacle to getting the issue recognised. It was thought that if something could not be measured in empirical terms it did not exist. If there was no actual proof of discrimination, it must have followed that the courts were colour-blind. Then again, one of the problems with conducting quantitative research is that different responses may be obtained in different regions and before different courts. The outcomes can vary depending on the race of the researcher. It has also been shown that surface examination of the offence and the sentence may show no discernible difference in approach, because in such an assessment no account is taken of the complicated process which has gone before.
When I started practice at the Bar I spent a large part of my time in courts representing young black men charged with being a ‘suspected person’. The accused did not have to commit an offence; it was enough that the police saw him behaving in a way that led them to believe that he was up to no good. There was no right to jury trial. In court, the standard case involved two police officers corroborating each other, using their identical notes made back at the police station. They would describe seeing the suspect behaving suspiciously, looking around him to see if there were observers and then trying a car door handle or pushing against a gate or reaching into a shoulder bag. There were never any fingerprints or independent witnesses or stolen items. Large numbers of young black men acquired criminal convictions on this kind of evidence, with magistrates nodding the cases through. The scandal of discriminatory police practice around the ‘sus’ laws led to legal reform, but ‘stop and search’ has become the new litmus test of police attitudes.
Home Office figures released in October 2017 show that the number of stop and searches conducted by the police fell across all ethnicities in the period 2015–16. However, the number of white people stopped and searched decreased at almost double the rate of the number of BAME people. Those from BAME backgrounds were three times more likely to be stopped and searched than those who were white. This statistic rose to six times more likely for those who were black. In London, the disparity is even more pronounced.
As Home Secretary, Theresa May tried unsuccessfully to reform the police’s power to stop and search. Today, the Metropolitan Police Commissioner Cressida Dick argues that stop and search is critical in the battle to reduce knife crime. I have no doubt that, as the Macpherson Report found nearly 20 years ago, stop and search can be a useful operational tool. But it must not be used to discriminatory effect. The disproportionate use of stop and search against BAME communities is the most alienating policing tool in contemporary use. It corrodes trust in the police. Black and Asian men rightly suspect that they are being targeted simply because of the colour of their skin. Darcus Howe, the late broadcaster and journalist, described being stopped and searched 10 times over a 20-year period. Once in the West End of London, an officer lied through his teeth and claimed he had seen him dipping into women’s handbags with intent to steal. Even Neville Lawrence, the father of Stephen Lawrence, whose face was so familiar from television appearances, was stopped and searched after his son’s death. As indeed was Archbishop Sentamu, one of the commissioners on the Macpherson Inquiry. The same story can be repeated by almost every black male, no matter how prominent. It is unacceptable. No matter what views linger in unpleasant crevices of the police psyche, being black in public is not a crime.
BAME people are also more likely to be arrested. In 2017 the government conducted a Race Disparity Audit, which collected a large amount of statistical information about the differences in the way white people and BAME people are treated. The audit found that black men are three and a half times more likely to be arrested than white men. A natural sense of injustice can result in greater confrontation with police and consequent accusations by the police that they have been disorderly or violent. In their understandable distrust of the frequently all-white bench of magistrates, BAME defendants elect trial by jury in the Crown court more often than their white counterparts. This means longer sentences on conviction because higher courts have greater sentencing powers. According to the Lammy Review of BAME treatment in the justice system, BAME men are also more than one and a half times more likely to enter a not-guilty plea than their white counterparts. Their fundamental lack of trust in the system leads to a sense that it is not safe to cooperate with the police, or trust the duty solicitor’s advice. Again, the result is a much harsher sentence if convicted. It is also noteworthy that a greater number of BAME defendants are ultimately acquitted at trial, suggesting that the original arrests may well have been unwarranted or that there was overcharging. The whole process confirms a sense of unfairness.
The contact of BAME communities with the police is so often negative that it spills over into the courtroom. However, when some judges see part of their role as validating a pressurised police force, they are faced with an unpalatable choice and either side with the police or avoid criticising them in the way that an aggrieved defendant feels an impartial judge should. The judge’s attitude may not actually affect sentencing, but it will affect the way the court process is experienced by BAME defendants.
These defendants face all the usual problems: fear, worry, confusion and concern for their families – but they also have especially low expectations of how they will be treated, often anticipating hostility from court staff and the bench. Authority is white, and the courtroom reinforces that message. The great majority of lawyers are white. While BAME representation is at record levels among judges under 40 in lower courts, the latest judicial diversity statistics show that overall just 4% of circuit judges, and 2% of High Court judges, come from a BAME background. Eleven per cent of magistrates are black, but this statistic is somewhat skewed by the relatively high number of BAME magistrates currently sitting in London. For all other regions bar the Midlands, the proportion of BAME magistrates is well under 10%. The Society of Black Lawyers has stated that ‘the poor image which black people have of the courts leads to the sense that if one is black in court one has to prove one’s innocence rather than the court prove one’s guilt’. In 2017, Agenda and Women in Prison conducted a series of focus groups aimed at understanding the experiences of BAME women within the criminal justice system. Many of the participants felt their ethnicity and gender had affected their sentence. The report concluded: ‘either sentences are unfair or the reasoning behind them is not properly understood. Either way this lack of trust in the system is a problem.’
While black, Asian and other ethnic minority people are often grouped together for the purposes of statistical analysis, it is important to avoid the assumption that all BAME defendants experience the criminal justice system in the same way. Different groups are subject to distinct forms of racial stereotyping. Asian defendants are often considered industrious and family-minded. This means, for example, that they are more likely to obtain bail than black defendants. However, they are also seen as more dishonest and lacking in credibility than other BAME defendants. The special burden carried by West Indians is that for some reason they are often assumed to be more violent. The ultimate albatross for all black men is that they are believed to be sexually insatiable. This is reflected in the fact that prosecution rates for rape are significantly higher for black men than for white men.
For black women, the racism of police attitudes is often compounded by sexism. Sometimes, women need to use the police to investigate domestic violence and sexual assault but in those negotiations are distrustful because they have witnessed the abuse of police authority in relation to the men in their communities.
I remember once visiting Holloway Prison to talk to women about separation from their children. I was surprised at the numbers of black women and questioned the probation staff on the size of the ethnic population in the prison. That week the number of black women in Holloway had passed the 50% mark (counting both unconvicted prisoners awaiting trial on remand and those already sentenced). At the time, that was 10 times the ratio of black to white in the population at large. I knew that Holloway presented a very different picture from other prisons because of its wider catchment area and because it covered the metropolis and the major ports of entry. But the visual impact of so many black women kept incarcerated by so many white women and men in uniform (few of the officers were from ethnic minorities, and even today only 6% of prison officers are BAME) was shocking.
Why should black women be deserving of prison sentences or refusal of bail where white women are not? I am convinced that black women are penalised for failing to conform to ‘appropriate’ notions of womanhood. To some judges and policemen the lifestyles of many black women in Britain today seem unorthodox. The set-up is often matriarchal, lacking the ‘restraining male influence’ for which judges tend to look. The fact that the family unit of four is no longer an accurate reflection of social organisation among the white population, and that the percentage of single-parent families is high regardless of race, does not help black women, because we are now also seeing a moral and political crusade against the ‘lone parent’. According to the Lammy Review, black children are more than twice as likely to grow up in a lone-parent family than white children. The courts still see single motherhood as a signal of an unstable background, regardless of family structure.
The higher prevalence of single-parent families among the black community has a different impact on young black fathers. A recurring theme is that of young black men refused bail on the basis that they have insufficient roots in the community to guarantee their staying around to stand trial. The fact that they may have children seems to count for very little when the kids are living separately with their mother. The men are often just as deeply involved with their children as any white father, and the likelihood of their absconding is no greater than that of most, but the courts minimise their family attachment by reference to the difference in lifestyle.
For black women there is a general assumption that they will disappear into a subculture which will be difficult for the police to penetrate. Another objection to bail frequently raised by the police is that they consider it likely that the accused will commit further offences. This objection, usually based on the existence of previous convictions, communicates the view that the woman is so undisciplined that appearing in court operates as no constraint on her behaviour. If the court sees a young woman who is affecting lack of concern they read her demeanour as supporting the police view, and off she goes into custody.
This is problematic because black working-class women are often less submissive in the face of the legal system than their white counterparts. This is not to say they are unafraid of courts – they are as much in terror of them as any woman – but I do not think that they see any reason for colluding in a system which discriminates against them. Many of the black women that I have represented arrived at court angry. Their anger was rarely understood; it was taken for aggression, and as an unwillingness to show deference. Even if they themselves had not gone through criminal proceedings before, they had often learned from the experience of male family members and friends not to have high expectations. The collective experience went into court with them.
Being seen as ‘lippy’ is a particular problem for young black women. Afro-Caribbean girls are often given independence at an earlier age than white girls and are allowed to be responsible for their own lives. They are assertive in a way that is not accepted in the dominant culture. The writer Ann Oakley has pointed out that the dividing line between what is masculine and what is criminal is at times a thin one; assertiveness and independence are seen as exclusively male characteristics, and when displayed by young black women are seen as indicative of ‘trouble’.
For many BAME people the court appearance is their last stand. The whole process has been humiliating. Direct racist abuse of defendants by the police is thankfully less common today but often there is a sense of unfair treatment in other, less perceptible ways. For example, by the time they arrive at the trial, black defendants are more likely to have been remanded into custody than white defendants. Women talk of feeling dirty, like scum; the relative calm of the courtroom is their last chance to say: I am not going to be crushed.
A classic story of a black woman’s road to crime was told to me by a young woman who was first convicted at the age of 14. The family was celebrating her brother’s marriage, and the wedding party was in full swing when the police raided the house, suspecting that drugs were being consumed. The festive spirit was immediately spoiled and the house was turned upside down in the presence of all the guests. No drugs were found, but the girl became involved in a struggle with the police and was arrested. Despite all the claims that girls are treated lightly and are cautioned for first offences, she was brought to court and given a two-year conditional discharge as well as a fine and compensation to the officer for a torn epaulette amounting to £82.
It took the schoolgirl a long time to pay off the money, and her deep sense of the unfairness of what happened lives on. The conviction counted against her when she left school and tried to get a job, and offences of dishonesty started to accumulate. In interview, this woman made the important point that even as a girl she had the physical appearance of a mature woman, and she was dealt with as such. She felt that this assumption was often made about black girls if they were physically well developed.
Another problem for black women is that police consider their colour before their gender, and in situations of arrest they are often dealt with quite aggressively. The police assume, as they do with black men, that black women will be violent, and that perception informs the way they handle a situation. In turn, any altercation with the police is dealt with seriously by the courts; defendants on charges of assaulting police are invariably sent to prison. Assumptions about the sexuality of black women are also insidious. They are deemed to be inherently promiscuous, happy not only to have sex with anyone but to do so with rampant regularity and abandon. This belief is habitually subtly present in courtroom exchanges and social inquiry reports, and affects the way they are sentenced.
In rape cases in particular, the black experience seems to represent an amplified version of the disadvantages facing women generally. When black women are raped they have problems having their allegations heard, because all the myths about women generally merge with those about black sexuality and aggression. In the eyes of many jurors, black women are not readily seen as fragile creatures in need of protection, but as well able to look after themselves. It is hard to get statistics on the rape of black women as separate figures are not kept by all of our 43 police forces but 20% of those using the services of the Rape Crisis Centres are black (when only 3% of the general population is black).
Black women’s organisations also campaign vociferously about the neglect of black women’s complaints when they are subjected to battering. They say there is an assumption that they can give as good as they get and the police avoid getting involved. In the trial of a Ugandan woman for grievous bodily harm to her husband by pouring hot cooking fat over him, it came to light that, although she had called the police repeatedly, her violent husband had never been arrested. Indeed, it was suggested to her that she was not telling the truth when she said in interview to the criminal investigation department that she had made many previous complaints; there was no record of such complaints and the claim that she was exaggerating her husband’s brutality was put to her again at her trial by prosecuting counsel. It was a prosecution witness, a neighbour, who inadvertently came to her aid. He complained in the witness box about the number of times he had been awakened, first by her screams and then by police mistakenly ringing his doorbell when they came in answer to her calls.
It’s not just the disproportionate use of stop and search against black men that makes BAME feel that there is an accepted belief that they are dishonest, criminal and possibly terrorist. BAME people are much more likely to be apprehended on the street than white people. A colleague of mine represented a black hospital sister who was arrested at the Chelsea Flower Show. Not many black faces are to be seen at the Flower Show, a quintessentially English, middle-class affair, but the woman in question was in fact both English and middle class, and also a lover of gardens and horticulture. To her amazement, she was pulled out of a group of women who were queuing to use the ladies’ lavatory by two young police officers who maintained that they had seen her put her hand into the handbags of other women. She was aghast. No stolen article was found on her and no person in the queue had complained, but she was charged with attempted theft and trailed through the nightmare of a Crown court trial before being acquitted.
Black mothers often feel that their bond with their children is perceived as less significant and that their views on a child’s welfare are deemed less valuable. One mother, sentenced to two months in prison for refusing access to her daughter’s father, felt that she was viewed as bloody-minded and obstructive, when in fact she was trying to express deep concern for her child’s well-being. Her ex-boyfriend was a drug user and the little girl returned from visits describing in detail his use of drugs and drug involvement with others. The mother feared that the influence of drugs would affect his ability to care for the child when she was with him, and wanted any access to be supervised. In court, her concerns were ignored. She explained:
The judge thought I was a stubborn, determined person who was going out of my way to break a court order. I think had I not had two children by different fathers they would have viewed me as a different type of person. I think the judge was trying to say, ‘You can’t have your children and do what you like with them.’ I think the colour factor comes into it, but it’s something that can never be proved.
The heroism of ‘mother figures’ who bring up families in the face of hardship and poverty is part of the received wisdom. While young black women are often underestimated as committed mothers, older black women are almost invariably seen as overcommitted matriarchs, who indulge their sons and protect them from the forces of law and order. The Brixton riots in 1985 were fired by the shooting of Cherry Groce when the police were looking for her son, Michael. The race riots which took place in Tottenham later that year were sparked off by the death of a black mother, Cynthia Jarrett, who suffered a heart attack while her home was being raided by police.
Although a lot of water has gone under the bridge since these events, they are part of the collective memory of the black community, cited with the Stephen Lawrence case as reflective of policing that is cavalier about the rights of black people.
The Black Lives Matter campaign in the United States is confronting racism in law enforcement, the shooting of black suspects and the mass incarceration of black people, but it has also stimulated blogs and articles about the raising of black children, and not only is the absence of black fathers being put under the microscope but also the parenting by single black women, who are left to bring up their children alone or largely unsupported. There is nothing new or race specific in the blaming of mothers for the behaviour of their children but unspoken accusations of failure or over indulgence hover around black families.
To most people living in the 21st century such stereotypes seem ridiculous. They are, but we should not let the fact that some parts of society have become more enlightened blind us to the bigoted beliefs still held by many. In most circles it is no longer acceptable to air such toxic views aloud, but that does not mean that they do not lurk, unarticulated, in the furthest recesses of the courtroom.
The racism experienced by many BAME women cannot be disconnected from what they see happening daily to their fathers, brothers and sons. When you unpack the stop-and-search figures, they disclose disproportionate suspicion of young black men and boys and a greatly increased interest in young Asian men (including men from the Middle East), in the aftermath of 9/11. In airports, Asian men are overwhelmingly more likely to be stopped for additional security checks, especially if they are Muslim. The British Pakistani actor Riz Ahmed has written powerfully about the many times he has been ‘randomly’ stopped in airports, both in the UK and the United States. He describes being shown into a holding pen and seeing 20 slight variations of his own face looking back at him. Americans would call this racial profiling. As well as alienating men, it feeds negative feelings among women and undermines confidence in the authorities as a source of help when women need them.
Unsurprisingly, many Asian communities feel beleaguered, sensing a growing hostility and Islamophobia not just from the authorities but also from their neighbours. Baroness Lola Young conducted an independent inquiry into criminal justice and race which spelt out the over-representation of young Muslim and black prisoners in the British justice system. She found that only 1% of offences by Muslims related to terrorism yet the community was viewed with suspicion of insurrection by the authorities. Terror attacks by men who claimed to be acting in the name of Islam have led to huge surges in hate crimes against Muslims. There have been instances of pigs’ heads being left near Islamic community centres or thrown through people’s living-room windows. A van was driven into worshippers as they left evening prayers at Finsbury Park Mosque. One man died at the scene and at least eight others were injured. The increasing sense of ‘them’ and ‘us’ has serious repercussions for women. Women’s groups working with minorities feel that the community solidarity created to deal with this perceived targeting and Islamophobia make it impossible for women who are being abused or forced into marriages to turn to the authorities for help.
Asian women’s experience of the courts is frequently different from that of other racial minority women. There is a greater willingness to believe that they are not acting through their own agency and quite often that is true. An interesting paradox was presented to the courts during the Grunwick dispute back in 1977, when assertive, politically organised Asian women picketed their place of work and were arrested for offences arising out of the dispute. Jayaben Desai, the union leader, was charged a number of times and defended the cases successfully, and with great dignity, discarding the submissive stereotype and earning herself an individualised hearing.
The more recent challenge to the idea of the submissive Asian woman has arisen in relation to terrorism. Women have appeared in the dock in a number of cases where their complicity in plans to cause explosions or to commit other terrorist offences has been proven, defying the idea of passive wife or sister. I have acted several times for the wives of jihadists or bomb plotters and the assumption is that the women know what their husbands are planning and are supportive, which is not always true by any means. They are usually charged with failing to report their husbands to the authorities.
Bouchra el-Hor was charged with urging her husband to fight ‘jihad’ and failing to report his plans to the police. She was arrested with him and their baby son at Luton airport, and in his computer were incriminating extremist videos and information about how to construct pipe bombs. In her suitcase was a journal which contained notes and prayers as well as domestic lists and pieces of writing, all of which indicated her love of her husband and her anxiety about his love for her. One was a very elaborate letter describing a battle and which invoked the idea of a husband’s death and his going to paradise where she would eventually join him. It was a reference to a well-known Arabic love story, like that of Lancelot and Guinevere, but was automatically interpreted by the police and their Pakistani expert as incriminating. At her trial at the Old Bailey in 2007, el-Hor was able to show that she was in despair about her marriage and often wrote emotional pieces, drawing inspiration from mythology or hadith or history. Her husband was convicted and jailed for three and a half years but the jury acquitted Bouchra el-Hor, much to the disdain of some of the press.
Cossor Ali was the wife of the transatlantic bomb plotter-in-chief, Abdulla Ahmed Ali. He was convicted in September 2009 of planning to cause explosions using liquid bombs on planes crossing to North America. He, with others, was sentenced to life imprisonment with the order that he serve a minimum of 35 years. Cossor Ali was charged with failing to pass on information that would have been useful in preventing an act of terrorism. The prosecution argued that she knew her husband was planning mass murder by targeting passenger jets but failed to tell the police. They insisted that she must have known as they lived together in a one-bedroom flat where extremist books were found and where notes Abdulla Ahmed Ali had made while listening to lectures on jihad bore her fingerprints. She described her lonely and emotionally distant life from her abusive husband. She had had a moderate religious upbringing in Walthamstow but after her marriage she felt her identity being erased by her husband and his strict religious family. She told the jury that he once hit her so hard that imprints of his fingers were left on her face for days. She had phoned her father who had driven her to the police station to report it. Although she had later under pressure withdrawn the complaint, the record of the incident was found which supported the account she and her father gave. She was forced by her husband to wear a veil and he had bitten her face to remind her to wear it. She was never to be in any room where men were present and was not allowed to watch TV, read or listen to music. She spent her days caring for their baby, cleaning and praying. When she was acquitted, her father told reporters that they had suffered as a family for over three years waiting for her case to be heard ‘because of some individuals with whom we have nothing in common’. He and his wife were registered foster-parents who were suspended from their jobs while the case was outstanding. Family association carries grievous risk where terrorism is involved.
Sometimes, Asian women on trial have language difficulties and an interpreter has to be used. Conducting a defence through the medium of a translator is never satisfactory because the usual methods of measuring truthfulness are greatly reduced; questions and answers become mechanical and bland, and the emotion and subtlety in a person’s intonation are lost. The delay before the answer is treated with suspicion; jurors imagine the witness understands more than she is letting on, and that she is using the time to consider her response. It is true that if you try to conduct cross-examinations in poor English, the risk of misunderstanding is considerable, but the accused is not as ‘real’ when she is distanced by language from those who try her and she suffers the consequences. The ultimate linguistic failure happened in the case of Iqbal Begum, a battered wife who pleaded guilty to the murder of her husband at Birmingham Crown Court in April 1981 without understanding the language spoken to her by her lawyers or the court clerk.
Wearing a niqab or burka presents real problems for juries in evaluating the credibility of a defendant or a witness. I would be very anxious about a witness giving evidence against my client if I could not see her face when I was asking a question or see her facial expression when she was answering. I would object to the evidence. I think it is also problematic for a defendant to sit in the dock through a case with her face covered. Juries watch defendants throughout a trial and see their facial responses when witnesses testify. It is the whole process that assists in their decision-making, not simply the giving of testimony, and they feel cheated of that opportunity to assess a defendant. I have persuaded clients like Bouchra el-Hor to remove face veils for this reason. Human rights often involve balancing rights which are in contest. I have discussed this issue of facial covering in courts with Muslim female friends and they largely agree that requesting removal is not unreasonable in the interests of a fair trial. In these instances religious freedom is in contest with justice and in my view justice has to take precedence.
Women in minority communities are particularly vulnerable to the effects of cultural relativism, where non-intervention is justified because certain behaviours are assumed to be cultural norms. ‘They’re not like us and we have to tread with care or we will be accused of racism by their community leaders,’ was one of the explanations I was given by a prosecutor. Needless to say, most of the community leaders are men. Repeatedly, Asian women report that if the police do turn up they are often too distressed to be very coherent, and little effort is made to discover what they have suffered, and if the wife has poor English, the police tend to rely on the story being told by the men around. One Asian woman testifying to the Fawcett Commission on Women and the Criminal Justice System described being taken to the doctor’s by her husband who had caused her injuries. He did the talking. ‘The GP, who was an Asian friend of the family, did not pick up on the violence.’ Another said that after 10 years of domestic violence and reporting it to the police, the first real help came when she saw a domestic violence coordinator who took on all her cultural concerns. ‘Until then the response of the police was very poor.’
It is true that the pressures on women in some minority communities are great, because it is considered an insult to the honour of the man’s family if his wife should leave. The notion of honour is used to control women. A shocking number of Asian women have been killed by their husbands or a member of their husband’s family because they have attempted to leave or seek help from the criminal justice system and been fobbed off. Balwant Kaur was killed by her husband inside Brent Asian Women’s Refuge. Other women are killed by their own families for bringing shame on them. Culture does have a bearing in terms of the strategies available for Asian women to escape violence. But there is a precarious tightrope to walk. While not wanting to construct Asian and particularly Muslim culture as some monolithic and static phenomenon, problematic and pathological, it has to be spelt out how women can be constrained by their families and communities.
In June 1995 Tasleem Begum was killed by her brother-in-law, Shabir Hussein. He ran her over with his car, reversed over her body and sped forward once more, crushing her three times. She had been married to an older cousin who lived in Pakistan and did not visit her for four years. In his absence, she fell in love with a married Asian man at work, an action which dishonoured the family in Hussein’s eyes. He was sentenced to life imprisonment for murder but appealed and was eventually convicted of manslaughter on the grounds of provocation, receiving six and a half years. The result was attacked by women’s groups, including Southall Black Sisters. Hannana Siddiqui, the coordinator, stated:
For us, the concept of honour is being used as a justification or mitigation for violence. It can often be used to judge women’s sexual conduct or just general behaviour like refusing to be obedient, regardless of the reasons why they might be refusing. The consequences for women can be anything from social ostracism and harassment to violence and, in a few cases, murder … Cultural defences which use notions of honour to justify murder or other offences of domestic violence have been accepted by the courts, which has led to differential treatment of black and minority women and a system colluding with that justification.
Over the past 20 years the courts have had increasingly less truck with the plea that cultural difference can explain away murderous behaviour. In 1999, 19-year-old Rukhsana Naz was strangled by her mother and brother after she refused to have an abortion. When she was 15, Rukhsana had been forced into a marriage. Her husband lived in Pakistan and she had only seen him twice. Her family was incensed on discovering that Rukhsana was expecting an illegitimate child by a young man called Imran whom she had secretly dated since she was 12. He too had been forced into a marriage he did not want. Rukhsana’s body was found five days after her death when a farmer stumbled across it in his field. She was eventually identified because scrawled on her hand was Imran’s pager number. Both her mother and brother were sentenced to life imprisonment but some members of the community believed that strangling was too good for an adulteress and she deserved to be stoned to death (see From Homebreakers to Jailbreakers, edited by Rahila Gupta, 2003).
Heshu Yones, who was 16 and a student from west London, had her throat cut by her father in October 2002, after she was discovered dating a man from outside the Kurdish Muslim culture. Abdalla Yones had become so ‘disgusted and distressed’ by his daughter’s westernised ways that he stabbed her 11 times and left her to bleed to death before trying to kill himself. He was convicted of murder and sentenced to life.
Faqir Mohammed stabbed his daughter 20 times when he found her with a boyfriend at their family home in 2001. In September 2002 Badshu Miah suspected his estranged wife was having numerous affairs, including with white women, so he used a machete and a kitchen knife to slay her and her four-year-old daughter and her disabled brother. Sahjda Bibi was stabbed 22 times on her wedding day in 2003 by her cousins Rafaqat and Tafarak Hussain because she dared to marry a man of her own choice, a divorcee and non-blood relative. The men got life.
Shafilea Ahmed was just 17 years old when she was killed by her parents in 2003. The Warrington teenager had apparently brought shame on the family through her westernised behaviour. After months of attempting to keep her in line through bullying and violence, Shafilea was drugged and taken to Pakistan. She drank bleach in an attempt to escape a forced marriage and was brought back to the UK, where her parents suffocated her in front of their other children. Her body was dumped in undergrowth on a riverbank. Both parents were sentenced to 25 years in prison.
In 2010, the cousins of Banaz Mahmood, an Iraqi Kurd from south London, were sentenced to life imprisonment for her murder, having strangled her and buried her body in a suitcase. Her father and uncle had earlier been sentenced to life for ordering her death because she had left her violent husband and begun another relationship. Banaz had previously thrown herself through the window at her grandmother’s house when she realised her family wanted her dead. She had given a recorded interview to the police who dismissed her fears as fantasy and wanted to charge her with criminal damage.
The police continue to insist that gathering evidence is rendered almost impossible in many of these cases because the value systems in some communities still legitimise domestic violence. They point to how families and groups close ranks to protect their menfolk. Communities are not always the cosy havens of warmth, security and comfort romanticised by politicians. Sometimes they are places with secrets and hierarchies and practices like female genital mutilation.
Women can be just as brutal as men, as seen in the cases of Rukhsana Naz and Shafilea Ahmed. Women in minority cultures are socialised to accept male constructed morality and concepts like honour. In 1998, Surjit Athwal travelled to India for a family wedding. She never came back. It later emerged that her mother-in-law, outraged by the news that Surjit had been having an affair and wanted a divorce, had organised for her to be murdered during the trip. Almost a decade later, Surjit’s husband and mother-in-law were jailed for life for arranging her killing. A number of other British women have died in suspicious circumstances while visiting family abroad. In July 2016 Bradford-born Samia Shahid was strangled in Pakistan by her first husband whom she had dared to divorce. The deaths are sometimes explained away as ‘sudden heart attacks’. Murder is hard to prove across continents. More than 11,000 incidences of honour crime were recorded by UK police forces during 2010–14, ranging from forced marriage to FGM, while there were 18 recorded cases of honour killings in the UK in the same period.
Southall Black Sisters has been constant in challenging the underlying racism and sexism in official decision-making for over 20 years. Standing at the intersection of race, gender and class, these women have changed the landscape of feminist activism and their doggedness has paid off. The Home Office, in conjunction with the Foreign Office, is now actively tackling the issue of forced marriages, providing support and return flights when young women are taken abroad, ostensibly on a family holiday but forced to marry while there. In 2016, the government’s Forced Marriage Unit dealt with 1,428 possible cases of forced marriage, the vast majority of which involved female victims and had an overseas element. The charity Karma Nirvana advises girls who suspect they are being taken abroad for a forced marriage to hide a metal spoon in their underwear when going through airport security. The idea is that the spoon will set off the metal detector, and the girl will be taken to one side, making it easier for her to ask for help.
Since 2014, it has also been a crime to use violence, threats or any other form of coercion to force someone into marriage. For a period this was resisted by some of the Asian women’s groups because it was felt that too few women want their fathers or other family members prosecuted and possibly jailed; it was believed that criminalising would prevent their seeking help. Civil injunctions were pursued as the initial remedy but they seemed to have little impact and it was recognised that a stronger response was needed. The new process involves an application for a forced marriage protection order and it can be ordered at the behest of an individual or a local authority or the police. The order can forbid marriage and engagement anywhere in the world and in appropriate cases can forbid parents and relatives from attempting to locate the victim. Breach of the order carries up to five years’ imprisonment. The penalty is not intended as an assault on the custom of arranged marriages but is to prevent marriage where a party does not consent or only consents under duress. The traditional offences of assault or kidnapping had often proved woefully inadequate in forced marriage cases, especially when a woman was tricked into making a visit overseas. The first successful prosecution for forced marriage took place in 2015. The perpetrator had repeatedly sexually and physically abused his victim, playing on her shame to blackmail her into silence. He forced her to marry him by threatening to kill her parents if she refused. He was jailed for 16 years.
These are welcome developments, but there is still room for improvement. Until recently, the Foreign Office required victims of forced marriages taking place abroad to pay the costs of their own repatriation to the UK. In some cases, the woman’s passport was confiscated until she was able to pay back the ‘loan’. The policy, which applied even when the victim was under 18, was roundly condemned by women’s groups when it came to light, and rightly so. Not only was the policy liable to deter women from seeking help, but making survivors pay the price of their own salvation is a cruel affront to the dignity of these women. However, the increased focus on forced marriage does risk the further stigmatisation of certain minority groups. Southall Black Sisters argues that the government has used forced marriage cynically as a justification for pushing a restrictive immigration agenda. While I am in favour of criminalising forced marriage, it must not be exploited as a tool for entrenching old prejudices. Forced marriage can and does occur in a wide range of communities and not just among Muslims.
Women’s organisations also say that the police are still insufficiently responsive to early signs that a woman is at risk. The escalating suicide rate among young South Asian women is one of the darkest secrets in our society. Unsuccessful attempts at suicide often go unheeded. The tension of living in a Western developed nation, where the relationships between men and women are in the process of great change, and reconciling that reality with the mores and customs of another cultural tradition can be unbearable. The pressure to conform, combined with high expectations, can cause massive strain on young women, who are taught to hide any problems that bring shame on the family. This is not an experience confined to the Asian community. Domestic violence and pressures to marry people from the same background have operated in Catholic, Jewish and other communities too. Speaking publicly about the behaviour of your own people is seen as an act of betrayal because minority communities feel that such exposure will further stigmatise them in the eyes of the majority. On the one hand are those who want the lid taken off the secrecy and call for a clear denouncement of unacceptable practices; others fear that focusing on ‘honour and shame’ may lead to the Asian community being stigmatised and even more stereotyped. But activists like Hannana Siddiqui are anxious that multicultural sensitivity may lead to moral blindness and feel the government is still wary about taking on the leaders of ethnic minority communities over cultural traditions.
The case of Zoora Shah has long been a cause célèbre among women campaigners, for it threw into stark relief the failings of the courts to understand women who challenge cultural stereotypes. In the 1970s Zoora came to Bradford from Mirpur in rural Pakistan following an arranged marriage. Her husband, who had subjected her to violence, abandoned her and her young children when she was pregnant with her third child. She was totally destitute and isolated when she was befriended by Mohammed Azam, a drug dealer from the criminal underworld of Bradford. He helped her acquire a house and because of her indebtedness to him he began to make sexual demands. This sealed her reputation as a ‘prostitute’. In the years that followed she became enslaved to him, used for sex as and when he pleased, and was threatened and tyrannised so that her home became a prison. She suffered from periods of depression and illness which were confirmed in medical records. Her efforts to get help from community leaders fell on deaf ears or they would themselves exploit her sexually. Eventually Zoora poisoned her persecutor when she thought he had sexual designs on her daughter and might ruin her life too.
At her trial Zoora Shah refused to give evidence. She was ashamed of what she had become in the eyes of the community and could not bring herself to reveal the full details of her debasement in public. Bound by all the powerful notions of honour and shame, she therefore chose to remain silent in the hope of saving the honour of her daughters. She was found guilty and sentenced to life with a tariff of 20 years. Her subsequent appeal also failed. In the words of her lawyer, Pragna Patel, ‘she did not lead a “normal”, “passive” existence as a “victim” of violence but tried to retain control in an impoverished world inhabited by male predators’. The psychiatrist for the Crown had no experience of gender issues within Asian communities. He presented Zoora as a cold and calculating woman, especially because she chose to stay silent at her trial, acted in contradictory ways and had an ambivalent relationship with her abuser.
As Pragna Patel points out: ‘There was a complete absence of awareness of the intertwined issues of culture, gender and power within minority communities … Women face very real consequences when they find themselves transgressing the norms of their community and it is important for those sitting in judgment to understand why cultural values keep a woman silent and close down her options.’ The sustained efforts of Southall Black Sisters meant that Zoora Shah’s tariff was reduced to 12 years in 2000. She was finally released in 2006 after spending 13 years in prison.
Southall Black Sisters raise the important issue that many immigrant women, who originally acquired entry to Britain through their marital status, feel obliged to stay in violent marriages because to leave may jeopardise their right to remain in this country. Such fears make women diffident about calling in the police or, if they do, about answering all their questions, which in turn is perceived as deceit. The One Year Rule in immigration law means that if a marriage fails within a year, a party who has come from abroad will lose their right to stay. Following campaigns by Southall Black Sisters, concessions to the rule have now been made for spouses and partners who are victims of domestic violence.
The abuse and violation of women is a human rights issue and there can be no hierarchies of human rights. Women from ethnic minorities deserve the same legal protections as any other women, and women deserve the same protection as men. As my friend Claire L’Heureux-Dubé, a former Canadian Supreme Court judge, has said, context is everything. But this is a lesson still to be learned here, and until it is, equality at the hands of the law and before the law will not be secured.
It is not just the ethnic minority communities who suffer racial prejudice. Today, around 12% of women in prison are foreign nationals. While there are still significant numbers of Jamaican and Nigerian women in this group, Eastern European women are now being imprisoned in the UK in increasing numbers. According to the Bromley Briefing Prison Factfile 2015, one in three imprisoned foreign national women are serving sentences for drug offences, compared to 12% of British women. We are in addition seeing a rising number of women arrested for immigration-related offences, charged with the deception of the authorities over their immigration status, or the use of false documentation to enter or leave the UK, obtain work or access benefits. Irregular immigration status, and the resulting fear of being imprisoned or deported, also makes many migrant women particularly vulnerable to coercion. Agents who traffic women to the UK to work in the sex trade, cannabis production industry or as domestic servants use the threat of a report to the authorities to keep their victims in line. Those who do not hold British passports have similar experiences.
The noughties saw a spike in the number of women from overseas being imprisoned for drug offences, usually importation, mainly from Nigeria, Ghana and Jamaica but also from India and Pakistan or Latin America. In 2003, these women made up around 20% of the female prison population in England and Wales. The conviction rate for these offences was high because, even where the women claimed they had been duped or pressured into carrying drugs, judges and juries were sceptical. The worlds they heard about were so alien that the accounts often seemed fantastic. A woman from Colombia, sentenced to nine years, said that her trial judge suggested to her that she had read too many books about the Mafia or watched too many films. There was no real appreciation of her terror at what could be done to her family back home.
To people leading impoverished lives, the financial rewards for importing and distributing drugs are considerable, though they often bear very little relation to the value of the drugs themselves. The use of women as couriers, or ‘mules’, is frequent and intentional. A steady supply of extremely poor women can be persuaded to earn cash which will see their children through school, pay for medical bills or just secure their family’s existence for the foreseeable future. For many, coercion has played a part in their decision to act as a courier. Sometimes, drug dealers will offer a struggling woman a loan. Carrying drugs is the price exacted as repayment. Other women have drugs planted on them, and have no idea that they are carrying. Either way, they are the pawns of the drug gangs and they become the forgotten prisoners within our system. Few of the women are aware of the sentences they are likely to face, or of British sentencing policy. According to a 2012 briefing paper produced by the Prison Reform Trust, a common theme is women being told: ‘The worst that can happen is that you will be sent back.’
Thankfully, the number of foreign women being arrested for drug importation appears to be slowly declining, but the number of immigrant women under legal scrutiny is increasing. Those who go through the criminal justice system rarely have much voice, but immigrants are one of the most silent groups. Few prisoners have a vote, and no foreign men and women charged with crime do. They are the most vulnerable of all the adults who appear in our courts.
Between July 2016 and June 2017, over 4,000 women were detained for immigration control purposes, either before being deported or while waiting to see if they are given permission to enter the UK. An order of the court is not necessary to detain these women; it can be done on the say-so of a Home Office official. Many women in immigration detention have committed no crime; the Home Office can detain them in order to establish their identity, or if there is a risk they will abscond if released. Others have committed crimes which render them liable to deportation, and once their prison sentence is complete, are transferred to immigration detention while a decision is taken on whether to deport them or not.
The majority of women in immigration detention are held at Yarl’s Wood, an immigration removal centre in Bedfordshire equipped to hold around 450 women. It has long been a magnet for controversy. Many women detained there have physical and mental health-care needs which mean they need ready access to doctors and medication, but are faced with long waits for appointments, delayed prescriptions and inadequate support. Allegations of sexual abuse have been rife, and in 2013 two male staff members were fired for having sex with a detainee. In another incident a few years previously, a detainee became pregnant by an officer. Privacy is effectively non-existent. Research conducted in 2015 by the charity Women for Refugee Women found that almost all the women they interviewed said that men watched them in intimate situations, including while naked, in the shower, or on the toilet. The threat of coercion is omnipresent.
There is no limit on the length of time that people can be held in immigration detention. Both men and women are sometimes held for very considerable periods of time, and in extreme cases for several years. This is striking when contrasted with the position of most other European countries; the UK is one of the very few not to impose an upper time limit. In most, detention is for a month or, at a maximum, a few months. An analysis of five main European countries found that the UK takes fewer refugees, offers less generous financial support, provides housing that is often substandard and does not give asylum seekers the right to work. The UK has been known to punish those refugees who do voluntary work and routinely forces people into destitution and even homelessness, driving them into shoplifting or other crime. The position may be particularly acute when a foreign national has been to prison and is then transferred to immigration detention to await deportation, so that an indeterminate stay in a removal centre is tacked on to the end of their custodial sentence. The uncertainty this causes has a serious impact on the mental health of detainees who have no idea when they are going to be let go – to say nothing of the moral dubiousness and financial inefficiency of detaining people who do not need to be locked up. In 2015, an All-Party Parliamentary Group recommended the introduction of a limit of 28 days as the maximum length of time anyone can be held in detention. That recommendation was not implemented by the government, although the system has recently been changed so that pregnant women cannot be detained for longer than 72 hours.
Charities and campaigning organisations continue to fight for a time limit on immigration detention, or better yet, for its abolition altogether. Yet the arguments used by campaigners can be twisted and used as a justification for making the system tougher, not fairer. A good example was the ‘detained fast track’ asylum procedure which was used to process asylum claims until it was declared unlawful by the High Court in 2015. Under this speeded-up process, asylum decisions were made, and appeals disposed of, within a matter of weeks. Ostensibly aimed at curbing excessive stays in detention, in reality the extremely tight time limits often operated to deny asylum seekers the right to a fair appeal hearing. Another example is the introduction of strict limitations on the amount of time that children can be detained in immigration detention. This is obviously a good thing; there can be no justification whatsoever for detaining a child. But it does mean that the use of immigration detention for those with families now involves splitting up children from their parents. This has the same disproportionate impact on mothers as it does in the prison context. There is an obvious answer to this, which is not to detain the parents in the first place, but this is not the approach which has been adopted by the government.
Women who end up in immigration detention are often vulnerable. Many are asylum seekers, fleeing persecution or violence at home. They may well have suffered sexual and physical abuse. Many of them have committed no crime; those that have are much more likely to have played ancillary roles, or also to be victims of crime themselves. The anxiety and fear experienced by women in immigration detention is magnified through the lens of previous abuse. At the same time, it is important not to deny the person-hood of these women by viewing them solely as victims. Just as in prison, there are some women in immigration detention who are there because they freely choose to do bad things. Others, who are there because of circumstance, abuse or because they are in reality the victims of crime, have individual personalities as well, and experiences and stories to tell.
In an increasingly punitive climate there is a temptation to pander to the expectations and prejudices of judges and juries in ways which will secure a favourable outcome. (It is an approach to which we have all succumbed, lawyers and probation officers alike. We have all experienced the fear that our client will turn up with a Mohican haircut, or with her tattoos showing, or with a ring in her nose, especially when the judge really is a conformist and is likely to draw adverse inferences.)
The Probation Service is now actively addressing the issue of racism and sexism, and their studies have identified stereotyping as a particular problem. The accepted image is an easy shorthand to fall back on when there is little time. When I was making a television programme on a similar subject I interviewed the BBC’s head of comedy, who told me that reliance upon stereotypes in sitcoms was partly due to the need to impart information quickly and to create shared laughter in shared values. The problem is that these values, wherever they are used or appear, are then reinforced, allowing prejudice to creep in. In the courtroom their use prevents important distinctions being made between each case and each person. Basic information is provided, responses are triggered, and the individual who is encased in this envelope of assumptions is never allowed to surface. For BAME women, emerging as special and different is especially tough.
BAME women lawyers complain that the problems of being taken seriously are exacerbated for them. They have well-tuned antennae and empathise with the problems faced by women clients of their race. As the late barrister Tanoo Mylvaganam said, ‘You cannot be a woman lawyer, experiencing discriminatory practice yourself as a professional, without being alerted to the way that the same attitudes affect women who do not even have our class advantage.’
One black woman barrister, a rising criminal practitioner, described defending a black client who was one of several defendants; the other lawyers were all white. She had the strong feeling that the trial judge, who was renowned for his rudeness, was particularly dismissive of her legal arguments. At one stage, when she sat down, he sent her a note asking her whether her accent was English, and if so where she had been to school. She ignored the note, uncertain what it meant, but felt very undermined, as though her fluency and education were being questioned. After this barrister had made her final speech to the jury, the judge summed up to the all-white jury with this remark: ‘Members of the jury, we are British and this is a British court and British standards of behaviour are being protected.’ She thought the comment diminished her own address to the jury, as coming from someone with a different and less valid value system.
Elizabeth James, a British barrister of Nigerian descent, was defending a Nigerian woman charged with credit-card fraud when the judge opined that ‘this type of crime is far too prevalent amongst the Nigerian community’. There is absolutely no support for his view, and she had the courage to challenge him in court and to say that she took personal exception to the remark.
The negative experiences and social injustice encountered by these different communities comes to a head in our courts. This takes us to a sensitive issue: the potential racial imbalance of juries in cases with a racial component. In London it would be rare to have a jury that was not multiracial. However, even in the metropolis it can happen that a jury is overwhelmingly white and if the accused is black it may create the feeling that white justice is being delivered on black people. The removal of the right of the defence to challenge jurors without cause has happened by salami-slicing the entitlements of those who stand accused. When I first came to the Bar it was possible to challenge up to seven jurors on behalf of each individual client. This right was reduced under a Labour administration to three challenges per defendant, and was finally removed altogether in 1988 because it was claimed that anyone who carried the Daily Telegraph or who looked as though he or she had half a brain was being dismissed by manipulative defence lawyers.
There was no doubt that efforts were made to second-guess the type of juror from all sorts of aspects of their appearance, a lot of the time to little avail. (I myself, for example, had a sneaking aversion to men who had badges on brass-buttoned blazers and women who looked like my old headmistress.) But there were occasions when the challenge had a valid and important use. In cases involving aspects of child-rearing, such as cases of baby-battering, it is helpful to have people who have not forgotten the demands of a newborn. Equally, age can be important in cases involving youths, where their lifestyles may be incomprehensible to jurors of an exclusively older generation.
However, it is particularly worrying that in cases of a racial nature we can have all-white juries trying BAME defendants. Successive studies have now shown that jury verdicts are not generally affected by ethnicity. But it is also important to consider how the process looks from the point of view of the person in the dock. A predominantly white and male jury may well not feel fair to a black or Asian female defendant. As one of the participants in the Agenda and Women in Prison focus groups commented: ‘I had a pretty old jury and I was thinking well I’m young and I’m black, hmm … what are my chances?’
Some positive developments are taking place. Judges are consciously endeavouring to remove the spectre of cultural ignorance from the courts. It is thankfully unheard of now for generalised statements about racial groups to be made in the courtroom. But before reaching the position where racism is completely ousted there has to be recognition that people do not start equal – that the old British playing field is not level. The baggage which comes with the defendant or complainant to the courtroom must be thrown into the scales. All the experiences of BAME people at the hands of the law have been absorbed into the collective consciousness of their communities: the black taxi driver badly beaten for no reason by off-duty policemen; the middle-aged woman who suffered a dislocated shoulder when her £20 note was automatically suspect and she was wrongfully arrested with force by a detective; the young man whose head was stamped on in a police station; the Asian families burned out of their homes because the police failed to take seriously the threats being made by racist neighbours.
When the subject of racial and sexual awareness training was first raised in the legal profession it used to be greeted with sneers, but judges now speak of the benefits of learning about cultural difference and recognise that judicial training has played an important role in securing confidence in the system. But the learning does not run deep enough. Until there is a clear appreciation of racism and the social factors which bring BAME people before the courts, as well as an understanding of the subtle dynamics which work in the courts to discriminate against them, those from ethnic minority communities will continue to be among the sections of the community least well served by the law.
The idea of ‘the other’ is of course not restricted to the colour of people’s skin or their cultural background. One of the effects of the change in women’s status in society has been the greater confidence it has given them to express their sexuality freely, a factor which has highlighted so many of the dichotomies in the law. The new confidence has enabled gay women openly to declare their sexuality. The fact of lesbianism has never even been acknowledged in the criminal law, which is an extreme expression of the way the law denies the existence of active female sexuality.
In a divorce case reported on 21 May 1954 in The Times, the judge was so wedded to Queen Victoria’s disbelief in the very existence of lesbianism that he refused to grant the divorce. In his judgment he said:
At the highest the wife and Miss Purdon were seen hand in hand, used to call each other darling, kissed on the lips, spent a good number of holidays together, were constantly alone in the wife’s bedroom at the vicarage and on two or three occasions occupied the same bedroom at night … It was a very odd business, two grown women spending all this time together often in the same room and often in bed together, but the court is quite satisfied that that is perfectly innocent.
There are laws which can be used against lesbians such as ‘Behaviour likely to cause a Breach of the Peace’ or ‘Indecent Assault on a Woman’, but the law puts much more emphasis on protecting women from vaginal penetration by an unsanctioned male and on protecting men from homosexuality.
Sexuality matters because human beings do not thrive when cut off from desire or sexual expression. Although male homosexuality was decriminalised in 1967 it was still vilified and evoked disgust; gay men were subject to harassment and prosecution for gross indecency by the police for many years thereafter. It was not about equality of sexual orientation or any questioning of patriarchy. Occasionally in the seventies and eighties, publicans tried to expel gay women from their bars if they kissed or embraced, and consequent ‘sit-ins’ by lesbian groups led to arrest for breach of the peace but the forces of law and order were largely uninterested in gay women.
In 1988 the Thatcher government passed into law Clause 28 of the Local Government Act making it an offence to promote homosexuality in schools. This was interpreted to mean that teachers could not be positive about any sexual identity other than straight and if pupils came to them about bullying or depression, in need of advice or counselling, they could not say it was fine to be gay. Teachers knew they put themselves at risk of contravening the law just by expressions of support and kindness.
However, because lesbianism poses an implicit challenge to heterosexuality and a world ordered to suit men, when a woman’s lesbianism is put before the court as part of the general evidence in a case unrelated to her sexuality, it can still be manipulated against her. Lesbians can disrupt the idea of passive femaleness so strongly that the law is used symbolically for public condemnation. In one case, the wounding of her lesbian lover led to a woman being imprisoned for seven years in circumstances where corresponding heterosexual domestic violence would have had a much less severe result.
Another scandal of the penal and justice systems is the inappropriate detention of people in prisons and special hospitals. This is partly because of the devastation of psychiatric facilities in ordinary hospitals through lack of funding. However, many women are made the subject of Mental Health Act sections who should not be sectioned at all. They are left to spend indeterminate periods in places like Broadmoor and Rampton, largely because they have been aggressive and angry or generally acted inappropriately for their sex.
To get into these places, patients have to be diagnosed as mentally ill and deemed to be a danger to society or themselves. For women it is very often the latter, because their desperation is so often turned inwards. Many of the female patients in Broadmoor are there for comparatively ordinary crimes, whereas the detained men have committed sex offences or sexually motivated murders.
Prue Stevenson of Women in Secure Hospitals (WISH) described in lectures the attack on identity and sense of self that women, especially lesbians, experienced in places like Broadmoor, where they are put under pressure to wear make-up and feminine clothing, grow their hair and have tattoos removed. Behave like a proper woman was the message. Most women complied, since to refuse could go against them in assessing their readiness for discharge. However, the process of making women conform starts much earlier in the criminal justice process, and young gay women have felt they are partially punished for non-compliance.
Lesbians experience the criminal justice system, from policing onwards, as hostile. As the victims of crime they are at a profound disadvantage, and have difficulty persuading the police to pursue complaints of sexual harassment, verbal abuse and assault by men. It is a particularly courageous gay woman who will brave the attack upon her character she knows will attend any trial such as rape. Some attacks are not confined to cases where gay women have been sexually assaulted. In almost any case the fact of her sexuality can be used against her in subtle ways. A gay policewoman told me that she has always had to be prepared for an attack in the witness box on the basis that her arrest of a male accused was based on bias against men.
The failure of the law to provide adequate protection for transgender people is now getting more attention.
In 1996 I fought the first transgender case before the European Court of Justice, where my client had been constructively dismissed from her job because she was embarking upon transition and the employer did not want her on the ‘front of house’ workforce. It was in fact a global first on transgender rights. Having lost in the courts in the UK, we won in Europe and the case started the slow process of legal reforms. However, transgender men and women still suffer greatly in the legal system, especially in our prison system, which too often locks up transgender prisoners according to their genitalia rather than their chosen gender identity and often with tragic consequences.
One of the most distressing cases I ever conducted was defending a young transgender woman who had been raped and vaginally damaged by a former partner. She had gone to the police and reported the violation only to be greeted with ridiculing asides and suppressed laughter. The case pre-dated the Human Rights Act and reforms in rape law and the Equality Act. Her experience at the hands of the police was so wretched that she decided to withdraw the allegation whereupon the police charged her with perverting the course of justice. I tried to persuade the court to drop the case but only succeeded in having her charge reduced to wasting police time and a conditional discharge by way of sentence. I like to think this could not happen today as so much legal change has taken place and there is greater public understanding of transgender issues and the abuse suffered by transitioning people who have gone on the tough journey to assert their gender identity. The courts and prosecution service are mindful of the human rights issues at stake as are the police and prison service.
Since the Gender Recognition Act 2004 came into force transgender people have been able to have their acquired gender recognised by going through a detailed legal process which, if satisfied, allows a new birth certificate to be issued. For legal purposes the person is then identified in their new gender. While this has been a valuable step towards recognising gender autonomy it has created a hierarchy for trans people that has permeated the legal and penal systems. Anyone with no gender recognition certificate has been placed in the prison estate that reflects their birth gender. This was in line with the national guidance. Between 2015 and 2017 three openly transgender women took their own lives in custody in English prisons: Vikki Thompson, Joanne Latham and Jenny Swift. None had the right certification and were in male prisons.
The discrimination, verbal, physical and sexual abuse experienced by trans people in and out of prison can take people over the edge of despair. Self-harming among trans prisoners is frequent. New prison policy was published at the end of 2016 on transgender prisoners, which stipulates that prisons must recognise gender-fluid and non-binary inmates and if a transgender person is sufficiently advanced in their gender reassignment process they may be placed in the estate of their acquired gender. It improves the procedures for making prison-allocation decisions but still leaves a lot to the discretion of governors and prison boards, who will have to decide whether incarcerating a trans prisoner in the prison of their own choosing might put their well-being or security at risk or the security of other inmates. Tara Hudson, a transgender woman who was held in a male prison, was moved to a female facility after her complaints of sexual harassment received sufficient public attention. She had lived all her adult life as a woman and had undergone gender reconstruction surgery but had not acquired the certification. She was female in all but law.
The convictions of Gayle Newland and Justine McNally for sexual offences that involved deceiving others about their gender show how complicated it can be if someone self-identifies as a trans person but is not legally transitioned. Both were recognised as suffering from gender confusion and had sought psychiatric help for anxiety and self-harming but neither had medically or legally transitioned. By misrepresenting their legal gender they were deemed to have prevented their victims from making informed decisions about consent – even though they may have self-identified as male at the time of the offences. Changes to the way we see gender, as more fluid or as crossing a spectrum, are going to present real challenges to the system. If either Gayle Newland or Justine McNally had legally transitioned, could their victims have claimed that they were deceived and would not have consented in the knowledge of that transition?
If certification is essentially the passport required by institutions and by law, will such a certificate be more readily obtainable? And what if non-binary people do not want to be saddled with a fixed gender or want to have surgery or want to choose which side of the divide they prefer? How can they be protected from molestation and abuse in or out of prison?
It has become clear that the Gender Recognition Act needs amendment to take account of these many and varied aspects of gender identity. I greatly regret that the transgender issue has divided some women. For any of us who have worked with those transgender people who have been raped and abused, sacked from employment or rejected by family and friends, who have lived from childhood with the emotional pain of having the wrong identity, we know these are questions of human rights and compassion.
To be different and ‘other’ tests the legal system, which is created around norms and rules that have been formulated with very traditional ideas about citizenship and belonging and indeed what it means to be fully human. The woman who is an outsider has an even harder time fulfilling the system’s demands and in consequence justice for her can become more of a lottery.