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How have Colonial Attitudes informed Law and Policy within the Criminal Justice System?

The United Nations, on 21 August 2021, unanimously passed a resolution to establish the “United Nations Permanent Forum of People of African Descent.”  The remit of the new forum is to ensure that people of African descent have a forum to promote full legal rights against racism and discrimination.  In establishing the committee, the UNHCR stated:

“We realized that a main part of the problem is that many people believe the misconceptions that the abolition of slavery, the end of the transatlantic trade and colonialism have removed the racially discriminatory structures built by those practices; [but] we found that this is not true,” said UN Human Rights Office’s Mona Rishmawi, Chief, Rule of Law, Equality and Non-Discrimination Branch. “

As a result, countries have not paid adequate attention to the negative impact of policies on minority populations and the “conscious and unconscious bias” associated with it, the OHCHR officer insisted.

For people of African descent, these legacy impacts are “a part of their daily life and the daily reality of dehumanisation, marginalisation and denial of their rights”.

The BLM gained huge momentum and international condemnation, following the untimely death of George Floyd.  The UN Assembly expressed alarm at the spread of racist extremist movements around the globe and deplored the “ongoing and resurgent scourges” of racism, racial discrimination, xenophobia and related intolerance.

I now turn to explore two areas of law and policy where the systemic, institutionally embedded traits of colonialisation have been categorically lambasted in either caselaw or independent investigations.  This notion was laid bare in “The Stephen Lawrence Inquiry, and subsequent MacPherson report.”  They represent a good sample of the concerns raised by the UN.

Stop and Search

This policy was initially borne out of a Metropolitan police operation, aimed at targeting pick pockets.  In its inception, over a period of 10 days 150 officers made around 1000 stop and searches.  These were predominantly in Brixton, and disproportionately targeted black males.  This resulted in the Brixton riots of 1981.  In a public enquiry Lord Scarman suggested recommendations that resulted in the Police and Criminal Evidence Act 1984 (PACE).  This intervention, in my view, has not resulted in the required change in police attitudes and stereotypes.  What is required is a systemic overall in colonially based attitudes.

The initial measure was calculated by Home Office on actual numbers of stop and searches made by police officers.  In 2004/5 the numbers were published as 628,000 as white, 118,000 Black, 60,000 Asian and 12,000 of other origin.  However the Human Rights Commission commissioned data analysis considering the proportionality of search per capita on individuals, and the results were stark.  Since 1995, per head of population in England and Wales, recorded stop and searches of Asian people have remained between 1.5 and 2.5 times the rate for white people, and for black people always between 4 and 8 times the rate for white people.  The consequence has been strained relations between the black community and the police.   A matter solely the responsibility of those in authority, still peppered with a subculture based on misogyny, sexism, and racism!

Joint enterprise

R v Jogee [2016] UKSC, was regarded as a landmark judgment on the law concerning criminal liability for accessories.  Pre-Jogee, it was sufficient for the prosecution to prove that the participant had mere foresight of the principal’s crime.    Post Jogee saw a significant departure in that the jury must now be sure that the participant had knowledge of the principal’s crime.

It is very well recognised that joint enterprise was utilised as a legal tool to convict accessories to gang related violence.   The doctrine pre-Jogee was regarded as disproportionately effecting black and minority ethnic groups.   It was a principle that had its origins in the case of R v Chang Wing-Siu [1995] and created a perverse position whereby the principal had to have formed the necessary mens rea, however, the accessory only to have foresee that the principal would commit the act with the necessary mens rea.

Having specialised in Criminal Appeals for twenty years, the anticipated flood of appeals being submitted to the Court of Appeal has not occurred.  Jogee has not had the impact that practitioners anticipated.  SHU Law has a dedicated Criminal Appeals department, with the writer the lead solicitor.  SHU Law is instructed on several joint enterprise murders appeals, and it is anticipated that submissions will be made to the CCRC in due course.

The UN Committee

Turning back to the UN forum of people of African descent, it remains to be seen how much attention the UK Government will heed to its objectives.  Policy has clearly failed to weed out institutionally held attitudes.  It is my view that we need to veer away from the insular objective of taking back sovereignty, whilst recognising that the only way to make real inroads is by taking a two-prong approach.  Firstly by robustly challenging internal institutional cultures with a zero-tolerance stance, which secondly will pave the way for the legislature and judiciary to start the healing process.


By Rajan Mawji – Criminal Appeals and Prison Law Solicitor

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