TV celebrity chef and domestic goddess Nigella Lawson admits on oath to using drugs! After the pretend shock and synthetic outrage, mischievous pundits have been moved to ask why she has not been prosecuted given her admission.
The suggestion that flows from that is that she has somehow been treated more leniently as a white, middle-class lady than some kid from the local housing estate, or someone from an ethnic minority background.
The first suggestion (prosecute on the basis of evidence in court) has little merit- most witnesses (including defendants) are able to give an honest account of their actions, without fear of being prosecuted as a result.
There are good public policy reasons behind that. If someone innocently accused of a serious offence has an alibi that at the relevant time they were at B’s flat, smoking a joint, then they should be able to say so- and more importantly B should be free to support that evidence, without fear of prosecution. So Nigella has not received any more favourable treatment in that context.
That however should not divert us from the very real discriminatory practices in stop and search, arrests, charge, conviction and sentence.
Nigella Lawson, I would suspect, has never been stopped and searched by police. Ever. But for some young people, and particularly young black men, that experience can be prevalent, embarrassing, intimidating or even confrontational.
Take the experience of Steven Lawrence’s brother. Stuart Lawrence has been stopped and searched by police at least 25 times, according to a complaint lodged by him last year, which led to a misconduct finding against one officer who told him they were ‘naturally suspicious’ of him. This is merely a high-profile example of everyday experiences for ethnic community groups.
An IPCC report found that 74% of the police driver’s stops between September 2012 and March 2013 were on Afro-Caribbean people. And looking at longer term statistics, black people were 6.3 times more likely to be stopped and searched for drugs than white people, while Asian people were 2.5 times more likely to be stopped and searched and those of mixed race were stopped and searched for drugs at twice the rate of white people.
And half the 280,000 drug stop searches carried out by the Metropolitan police in one year were on young people aged 21 years or below
The unfairness does not end there. On those cases where drugs are found, there is a disparity between the background of those who are charged and those who are not.
Again we see that black arrestees are far more likely to be charged (rather than cautioned) for simple possession offences. And finally, those from ethnic groups convicted or pleading guilty, are more harshly sentenced.
The alarming figures are analysed in report last year by RELEASE which showed “drug laws in the UK are a major driver of the disproportionality that exists in our criminal justice system in relation to the black community” – see HERE. The report should be essential reading for all who practice in, or have an interest in Criminal Law.
I don’t think anyone will be surprised by these findings. They are consistent with a long term trends, the Macpherson report, and every research paper on the topic over the last 40 years.
The question is, what are we going to do about it?
Why do we simply turn our heads, and look the other way?
It is time for the police to do more than methodically collect the figures, but instead pro-actively check and their charging practices. Every police station custody suite should have a designated officer to monitor their own charging rates, and be accountable to the chief constable if at the end of a year there is clear evidence of discriminatory charging.
Borough Prosecutors should not just proceed with cases that have been charged without challenging whether they need to have been charged, and in appropriate cases discontinue or refer back to the Police for a caution.
Magistrates need to be willing to grant adjournments at defence request for representations to be made in appropriate cases for alternative disposals. The current procedure rules disinhibit the granting of adjournments, but Courts should not sacrifice justice or fairness in their rush to efficiency.
Every Court should keep a record of drug possession cases, recording particulars of the offence, Penalty imposed, and profile of defendant.
It should be possible for researchers to find out which Courts -or even which magistrates- are treating defendants differently according to the colour to the skin.
Defence lawyers need to be braver in referring to the statistics, when defending someone from a group likely to receive a harsher sentence. Failure to do so makes us complicit by acquiescence.
So Nigella can relax. She will not be charged for admitting to having used cannabis or cocaine. And if in some future date, she is found with a joint, she is likely to receive a caution.and quite right too. But until we can be confident that all our citizens are treated equally regardless of race, colour or creed, we have a justice system that is unjust.
Author: Greg Foxsmith
Greg is a criminal defence lawyer