Equality before the law

CHAPTER 7
Equality before the law
7.1 The principle and its challengers
The constitutions of many countries proclaim a principle of equality before the
law or non-discrimination, or at least a general principle of equality. There is no
British Constitution as such, but the Human Rights Act 1998 brings into UK law
most articles of the European Convention on Human Rights. Article 14 declares
that the enjoyment of all the rights declared in the Convention shall be secured
‘without discrimination on any ground such as sex, race, colour, language, religion,
political or other opinion, national or social origin, association with a national
minority, property, birth or other status’. This is not a general principle of non-
discrimination, since it applies only to discrimination in respect of rights declared
in the Convention, but it is nevertheless important. Protocol 12 to the Convention
includes substantive and broader protection against discrimination, but it does not
bind a member state unless that state ratifies it.
1
Apart from Article 14, English law contains no general principle of non-
discrimination. This deficiency ought to be rectified: non-discrimination is a key
aspect of the principle of equality before the law. Discrimination is wrong because it
treats persons with certain attributes as worthy of less respect than others. Equality
before the law declares that every person is entitled to equal respect from the law and
its processes. There have been significant steps in recent years, notably the extension
of the race relations legislation to the police and other criminal justice agencies by
the Race Relations (Amendment) Act 2000.
It might be argued that a direct statement of the anti-discrimination principle
would besuperfluous where the proportionality principle has priority in sentencing.
On that principle, sentences should be determined by reference to the seriousness
of the offence; that involves consideration of the factors discussed in Chapters 4, 5
and 6, not others. This, however, brings us to the thematic questions in this chapter.
Does English sentencing practice give grounds for believing that discriminatory
factors are present in some cases? Even if discriminatory elements are not evident

as primary reasons for sentence, do they exert an indirect influence through other
1Wintemute (2004).
219
220 Equality before the law
factors such as unemployment, previous record or previous remand in custody?
And, if so, should the principle of non-discrimination always be accorded greater
weight than other relevant principles?
The first and second questions are matters for empirical inquiry, and the evidence
will be reviewed briefly below in relation to race, gender, employment status, social
status and other factors. The focus hereis on sentencing but, as argued in Chapter 1.4,
sentencing is merely a single stage in a sequence of decisions in the criminal process,
and practices at earlier stages might exert a considerable (though perhaps unrec-
ognized) influence on sentencing. On some of the points the available evidence is
inconclusive, and definitive studies are awaited.
The third question goes to the foundations of sentencing policy. It is sometimes
presented as the issue of whether the sentencing system should simply try to avoid
discrimination in its own decisions, or whether sentences should be calculated in an
effort to counteract discriminatory forceswhich are known to operate more widely –
leading in some instances to a kind of positive discrimination. This is an issue which
we should keep in view, but there are more specific issues too. How should the prin-
ciple of parsimony be related to the principle of equality before the law? Norval
Morris and Michael Tonry put their answer strongly: ‘To insist that criminal A go
to jail or prison because resources are lacking to deal sensibly with criminal B is to
pay excessive tribute to an illusory ideal of equality.’
2
They are content to see a white
or employed person receive a non-custodial sentence in the same circumstances in
which a black or unemployed person would be incarcerated. This furthers parsi-
mony, in the sense that fewer people would be incarcerated by subordinating the
principle of equality before the law in such instances. Morris and Tonry would rather

have the system discriminatory than uniformly punitive. Others would argue that
equality before the law is simply not negotiable: it is a principle which should not be
compromised, and any concerns about over-punitiveness should be tackled through
the overall system rather than by discriminating between individual offenders.
Another aspect of this argument is that available statistics tend to suggest that
those who suffer from certain social disadvantages (e.g. unemployed, no fixed
address, no close family ties) are more likely to be reconvicted than those who
are socially well established. A preventive sentencing strategy might therefore lead
to the imposition of more onerous sentences on the disadvantaged, and corre-
spondingly less onerous sentences on the well established. This, however, would
be to pursue prevention at a fairly superficial level. Prevention at a deeper level
requires a social strategy which tackles housing, employment, community facilities
and related matters. To pursue preventive strategies through sentencing is as short-
sighted as it is unjust. It tends to scapegoat a vulnerable group rather than to seek
alonger-lasting solution.
References will be made tothese themes in various parts below,and the arguments
of principle will be reviewed in a concluding discussion.
2Morris and To n r y ( 1990), p. 33.
7.2 Race 221
7.2 Race
3
The clearest application of the principle of equality before the law is that no person
should be sentenced more severely on account of race or colour. If sentencing is
based strictly on the seriousness of the offence, discrimination on this ground should
not occur. However, we have noted that although proportionality is the overriding
principle of English sentencing according to the Sentencing Guidelines Council,
s. 142 of the Criminal Justice Act 2003 requires courts to have regard to a miscellany
of conflicting purposes. If this is interpreted as bestowing considerable discretion
on the courts, then it will leave room for elements of discrimination to creep into
sentencing, whether consciously or unconsciously. Is there any evidence to suggest

that it might do so? Is there evidence that blacks or Asians are treated more severely
than whites?
4
The most cited figures are that, while some 1 to 2 per cent of the
general population is black, some 15 per cent of the male prison population and
almost one-quarter of the female prison population are black.
5
Does this indicate
discrimination in sentencing?
First, it must be recalled that the offenders who come up for sentence in the courts
are a selected group, resulting from various patterns of reporting, investigating and
filtering in the pre-trial stages. The importance of regarding the sentence of the
court as merely one stage in a lengthy process, signalled in Chapter 1.4,must be
emphasized here.
6
It can be shown, for example, that blacks have been more likely
to be stopped on the streets than whites or Asians, by a factor of around five to one.
7
These findings have been refined by Tony Jefferson and Monica Walker, whose study
of the address and place of arrest of 5,000 people arrested during a six-month period
showed that blacks have a higher arrest rate in predominantly white areas and that
whites have a higher arrest rate in predominantly black areas.
8
There is evidence that
white juveniles have been far more likely than black juveniles to be cautioned rather
than prosecuted.
9
The charges brought against black people show a relatively high
rate of victimless, preparatory and public order offences,
10

and a high rate of charges
of robbery.
11
The extent to which these differences reflect real offending patterns
or the influence of racial stereotypes on reporting and investigation remains to
be examined. However, they certainly have consequences in the criminal process,
inasmuchas a higher proportion of blacks appear at the Crown Court rather than the
magistrates’ courts
12
– notably because robbery is triable only in the Crown Court
3Bowling and Phillips (2002).
4The term ‘blacks’ is used here to refer to people from an African-Caribbean background, the
term ‘Asians’ includes both people from a background in the Indian sub-continent and those of
south-east Asian origin. Neither term is ideal.
5 See ch. 9.6.3 below. 6 See further Fitzgerald (1993) and Bowling and Phillips (2002).
7Home Office (1999), Table 3.2. 8 Jefferson and Walker (1992).
9 Landau and Nathan (1983), discussed by Fitzgerald (1993), pp. 17–18.
10 Hood (1992), pp. 144–5. This category included drug offences.
11 Home Office (1999), Table 5.5, showed that some 54 per cent of persons arrested in London for
robberywereblack.
12 Hood (1992), p. 51, and Fitzgerald (1993), p. 21.
222 Equality before the law
and not because more blacks elect to be tried there – and, partly in consequence, a
higher proportion of blacks are remanded in custody.
13
These findings go to establish that it would be a mistake to point to the sentencing
statistics for black and white offenders or, even worse, the numbers of black and
white offenders in prison, and to argue that the racial imbalance demonstrates dis-
crimination in sentencing. The courts could pursue an absolutely impartial sentenc-
ing policy in relation to the already skewed group of offenders coming before them,

and the results would appear discriminatory. The need, therefore, is for research
which takes proper account of all the major variables in sentencing (e.g. type of
offence, previous convictions and so forth), which distinguishes at least between
blacks, Asians and whites (rather than grouping blacks and Asians together),
14
which distinguishes between the Crown Court and magistrates’ courts, and which
has sufficiently large numbers of non-whites in its sample. The study carried out in
the West Midlands by Roger Hood (1992)meets most of these desiderata, although
it was confined to Crown Court cases.
Hood’s sample comprised 2,884 males, of whom half were white and half non-
white (the latter including roughly twice as many blacks as Asians), and 443 females.
It was thereforeone of the largest samples of Crown Court sentencing everprocessed,
and it produced a number of familiar findings apart from racial issues. Thus custody
ratesvaried among the courts studied, and this sentencing inconsistency persisted
even after account had been taken of the different offence-mix and offender-mix
of the various courts. Hood’s methodology included the calculation of expectancy
scores for sentencing, based on the characteristics of offences and offenders apart
from race, in an attempt to show whether race did exert an independent effect. One
result of this exercise was to show that a higher proportion of blacks fell into the
high-risk (of custody) category, whereas a higher proportion of Asians fell into the
lowest risk category.
15
Comparing expected custody rates with actual custody rates, Hood found a
‘residual race difference’ of the order ofa5percentgreaterprobability of a black
offender being sent to prison, which was greater at one court and lower at another.
16
The origins of this appeared to reside in the tendency of particular judges to deal
relatively harshly with some blacks with low or medium expectancies of custody.
The two characteristics of black offenders most highly correlated with severity were
being aged 21 or over, and being unemployed.

17
If, therefore, we return to consider
the fact that the proportion of black males in prison is around seven times as high
as that in the general population, what causal inferences can be drawn from Hood’s
study? He estimated that the bulk of the difference, some 70 per cent, was accounted
13 Hood (1992), pp. 148–9.
14 The Prison Statistics now distinguish between ‘South Asians’ and ‘Chinese and other’.
15 Hood (1992), pp. 68, 197; cf. Flood-Page and Mackie (1998), who, in a smaller study with less
sophisticated analysis, found that custody rates for white, black and Asian offenders were broadly
similar in both magistrates’ courts and the Crown Court.
16 Hood (1992), p. 78. 17 Hood (1992), p. 86 and ch. 6 generally.
7.2 Race 223
for by the number of blacks appearing at the Crown Court for sentence: this, in
other words, reflects the influence of all the pre-trial decisions and filters discussed
above. This should not be represented as a cumulative bias: the research suggests
discrimination at several stages, but not at every stage.
18
What of the remaining 30 per cent of the difference? Hood estimated that some
10 per cent was accounted for by the more serious nature of the offences of which
black offenders were convicted. No research has yet determined the extent to which
blacks are disproportionately involved in more serious types of crime, or the extent
to which the figures merely reflect stereotyping, labelling and deviancy amplifi-
cation by the public and law enforcement officers.
19
A further 13 per cent was
attributable to the imposition of longer sentences on black offenders, which was
traced almost entirely to the greater propensity of black defendants to plead not
guilty and, therefore, the unavailability to them of the sentence discount for pleading
guilty.
20

The remaining 7 per cent was accounted for by the greater use of custody
than expected. If the same analysis is carried out for black offenders under 21,
some 92 per cent of the difference was attributable to the numbers appearing for
sentence and the seriousness of their cases. Hood states that these estimates ‘must
be regarded with a degree of caution’,
21
and in respect of sentencing decisions he
argues that ‘in most respects Asian offenders did not fare worse than whites, nor
did all Afro-Caribbeans’.
22
None the less, this remains Britain’s most careful and
wide-ranging examination of race and the sentencing of male offenders,
23
and it
makes a powerful case for vigilance rather than complacency about the existence of
racial discrimination in sentencing.
The problem of race in sentencing must be seen at three different levels, at least.
First, there is the broadest level of social policy: unless there is an end to racial
discrimination in society, it is likely to manifest itself in criminal justice no less
than elsewhere. Although the Race Relations Act 1965 may be regarded as rather
timid in retrospect, it was a first excursus into a hitherto unregulated field of social
behaviour, at a time when strong views against immigration were often expressed.
Since then the legislation has been strengthened, and the Race Relations Act 1976
both created the Commission for Racial Equality and set out to penalize both
direct and indirect discrimination on grounds of race. As noted earlier, the Race
Relations (Amendment) Act 2000 extended the legislation to cover the police and
other criminal justice agencies, on the recommendation of the MacPherson Report.
However, race issues are often woven into public concern about immigration and
asylum seekers. In terms of social policy, they cannot and should not be isolated
18 Indeed, blacks have a higher acquittal rate: Fitzgerald (1993), p. 22.

19 See Cook and Hudson (1993), pp. 9–10.
20 Hood (1992), pp. 124–5; issues around the guilty plea discount are discussed in ch. 5.4.1 above.
21 Hood (1992), p. 130. 22 Hood (1992), p. 183.
23 Ch. 11 of Hood’s book discusses the sentencing of women, but the numbers of blacks and Asians
in the sample were relatively small.
224 Equality before the law
from more general inequalities in matters of wealth, employment and housing. This
point is taken further in part 7.7 below.
Second, there is the level of criminal justice administration. Racial awareness
training of judges and magistrates has increased in recent years, through the work
of the Equal Treatment Advisory Committee (known as ETAC). In respect of judicial
training, for example, ETAC advises on the structure of the sentencing and procedure
exercises that judges are asked to discuss during their seminars. Training of this kind
may help to remove prejudices of which sentencers may be unaware – for example,
one study found evidence that magistrates were influenced by demeanour in court
and might misinterpret the body language of some defendants as ‘arrogance’, leading
to an unsympathetic response.
24
ArecentstudybyHood,Shuteand Seemungal
found that there were no major differences in the proportions of white, blacks and
Asians who felt unfairly treated in the criminal courts. They did find that one-
fifth of black defendants in the Crown Court believed that they had suffered unfair
treatment as a result of racial bias (as did one in eight Asian defendants), proportions
that are lower than some might expect but which are still unacceptably high.
25
Third, there is the level of criminal justice policy. Various initiatives, policies or
targets may have impacts that amount to at least indirect indiscrimination. Thus,
in the context of US criminal justice, Michael Tonry has argued that the ‘war on
drugs’ has had racially discriminatory effects, and has resulted in the sacrifice of
black youths (imprisoned at an extraordinarily high rate) in pursuit of a drug-

control policy with no better prospects of success than certain less repressive and
less discriminatory alternatives would have.
26
A similar analysis of sentencing for
drug offences and robbery in this country would be likely to raise stark questions of
the same kind. For example, the label ‘robbery’ probably has an inflationary effect
on sentences that might disappear if the offence of robbery were abolished, leaving
prosecutors and sentencers to focus on the theft and any offence against the person
committed.
27
7.3 Gender
28
Just as racial discrimination in many fields is outlawed by the Race Relations Act, so
sex discrimination in some fields is outlawed by the Sex Discrimination Act. And,
as we saw in the previous paragraph, the provision in s. 95(1)(b) of the 1991 Act on
the publication of information about discriminatory practices applies expressly to
sex discrimination. Is there any evidence of discrimination against, or for, women
in the sentencing system?
The general statistics suggest that women are favourably treated at the sentencing
stage. Some 24 per cent of adult women received a discharge for indictable offences
24 Hedderman and Gelsthorpe (1997), pp. 33–4. 25 Hood, Shute and Seemungal (2003).
26 Tonry (1995), esp. ch. 3. 27 Ashworth (2002b).
28 In addition to the works cited below, there are chapter-length treatments by Edwards (1993),
Hudson (1998) and Heidensohn (2002).
7.3 Gender 225
in 2002, compared with 14 per cent of adult men; 33 per cent of women received
acommunity sentence, compared with 25 per cent of men; and 17 per cent of
adult women received immediate custody, compared with 30 per cent of men.
If there is any discrimination suggested by these figures, it is against men, not
women.

However, the figures cannot be taken at face value. Much depends, in the first
instance, on the types of offence typically committed by men and by women. Some
66 per centof females found guilty or cautioned for indictable offences have commit-
ted theft, usually shop theft, compared with only 44 per cent of males. For burglary
and drug offences, the positions are reversed.
29
Asecondvariable is the court in
which an offender is sentenced: a higher proportion of women are sentenced by
magistrates’ courts, and the research evidence shows that the Crown Court tends
to pass significantly more severe sentences in comparable cases.
30
A third variable
is criminal record: in Moxon’s Crown Court survey some 46 per cent of the females
were first offenders, compared with 22 per cent of the males. The average number
of previous convictions was 5.3 for males and 2.1 for females.
31
A small study by David Farrington and Allison Morris found that, taking account
of variations in type of offence and previous record, the gender of the offender
seemed to have little or no independent effect on sentence.
32
Asubsequent study
by Lizanne Dowds and Carol Hedderman found that, taking account of the usual
variables, women shoplifters were less likely than men to receive a custodial sentence,
whether as first offenders (1 per cent and 8 per cent respectively) or as repeat
offenders (5 per cent and 15 per cent).
33
Women were more likely toreceivea
community sentence and to receive a discharge, but this seemed to be because
sentencers were often reluctant to fine a woman in circumstances where they would
fine a man.

34
Insofar as this is true, it may mean that some women received a more
severe sentence (a community sentence) that some men, because they were thought
unable to pay a fine.
However, it has long been suggested that the whole orientation of sentencing for
women is different: the emphasis in pre-sentence reports, speeches in mitigation
and sentencing seems to be on some pathological or abnormal explanation for the
offending.
35
This might be a separate strand of explanation for the higher use of
community sentences, particularly those involving supervision. Thus, Farrington
andMorris found that divorced and separated women receivedrelativelymoresevere
sentences than married women, as did women regarded as ‘deviant’ (e.g. unmarried
29 Flood-Page and Mackie (1998), p. 134.
30 Hedderman and Hough (1994), drawing on Hedderman and Moxon (1992).
31 Moxon (1988), pp. 53–4. 32 Farrington and Morris (1983).
33 Dowds and Hedderman (1997), p. 11.
34 Magistrates interviewed by Gelsthorpe and Loucks (1997), ch. 4, were often reluctant to fine
women because they had no independent means and/or because taking money from them might
make their child-care responsibilities more difficult.
35 Gelsthorpe and Loucks (1997), ch. 3, recording the tendency of the magistrates they interviewed
to regard women offenders as ‘troubled’ rather than ‘troublesome’.
226 Equality before the law
mothers with no employment) rather than as ‘normal’.
36
The other side of this coin
is that the traditional family unit is adopted as the centre of normality. Where
women do have family responsibilities, these sometimes militate in their favour;
37
those with less conventional lifestyles tend to be viewed unsympathetically, as do

those who fail to exhibit expected female responses in court (tearful, apologetic,
respectful).
38
When dealing with most female offenders, however, it appears that
magistrates give much greater weight to mitigating factors and, in particular, strive
harder to avoid a custodial sentence than when sentencing a male.
39
Arewomen treated more leniently? In overall terms the answer might appear to
be affirmative; but, on the basis of their research projects, Dowds and Hedderman
and Gelsthorpe and Loucks draw a different conclusion. They point out that
men and women stood an equal chance of going to prison for a first violent offence.
However, among repeat offenders, women wereless likelyto receive a custodial sentence.
Women first offenders were significantly less likely than equivalent men to receive a
prison sentence for a drug offence, but recidivists were equally likely to go to prison.
40
This shows, the authors argue, that women do not consistently receive more
lenient treatment than men. Rather, their sentencing patterns are more likely to
reflect ‘the fact that men and women who come to court differ across a wide range of
factors which sentencers take into consideration when determining an appropriate
sentence’.
41
This refers to the effect on women’s sentencing of factors such as the
primary responsibility for child care, no independent income and a more respectful
or remorseful attitude in court. But one could certainly argue that the patterns found
by these authors point to heavily stereotypical reasoning by some sentencers.
42
Indeed, as suggested above, there may be two sets of divergent social stereotypes at
playhere–aformofchivalrythat regards women as behaving irrationally if they
offend (‘troubled’, ‘disturbed’) and therefore as deserving sympathy, and a form
of rejection which bears down harshly on women who depart from conventional

social roles.
43
It can be strongly argued that the focus should not just be on gender but also
on other reasons why women and men may be treated unfairly by the criminal
justice system. We have already met one example of this: black women. The figures
quoted in part 2 above showed that a quarter of the female prison population are
black, around 13 times as many as in the general population. Some of these will
be on remand, but that in itself is a cause for concern. Some will be convicted
or alleged drug couriers from other countries. The justifications for imprisoning
36 Farrington and Morris (1983).
37 On the mitigating effect of such factors, see ch. 5.4.5 above.
38 See the remarks of the magistrates quoted by Gelsthorpe and Loucks (1997), pp. 30–4.
39 Gelsthorpe and Loucks (1997), ch. 4.
40 Gelsthorpe and Loucks (1997), p. vii. 41 Gelsthorpe and Loucks (1997), p. 55.
42 See also the study of male and female child-killers by Wilczynski (1997), identifying different
official responses to the two groups.
43 See Morris (1988).