THE PROSECUTION AND DEFENCE OF BLACK DEFENDANTS IN DRUG TRIALS.
Prosecuting and defence barristers' participation in trial is of principal significance in determining a case outcome. It is the intention of this article to examine the role that barristers play in shaping the representation of black people in the criminal statistics. Detailed observations of drug offence trials concerning black defendants demonstrate this role in the way barristers socially construct drug cases through the process of claims-making--an activity that entails an impressive utilization of language to persuade. The study describes how, within this claims-making process, racially imbued knowledge seemed to inform barristers' presentation of the defendants' cases before the jury. In conclusion, the findings question the authenticity of criminal statistics as an indication of guilt.
Among the several studies in relation to black(1) people, the court system and criminal figures, no importance has been given to a significant area of the criminal justice process--the trial process. This article sheds light on the significance of case processing in court prior to sentencing by exploring how collective forms of prosecuting and defence barristers discourse characterize the conviction or acquittal forming process in drug trials. Claims-making was a vital conceptual tool used by barristers to construct and relate black defendants' cases. The substance of this paper lies in how race appeared to be subtly represented in barristers' language through the process of claims-making.
Data for this paper derive from a seven-month observation of court proceedings concerning black and white defendants charged with a drug offence. Field research was conducted on a systematic basis in 1991 at one Crown Court and one Magistrates' Court in London, during which data were collected on a sample of 104 drug offence cases. Forty of the cases took place at the Crown Court and 23 of them involved black defendants while 17 concerned white defendants. Five of the 23 black defendants' cases and 2 of the 17 white defendants' cases were adjourned indefinitely during trial, leaving 18 and 15 complete drug cases concerning 19 black defendants and 18 white defendants respectively. Drug offence charges brought against the defendants were: (1) unlawful possession of a controlled drug; (2) unlawful possession of a controlled drug with intent to supply to another; (3) supplying a controlled drug to another; and (4) concerned in supplying a controlled drug to another.
The number of drug charges instituted against the defendants ranged from one to four. Most of the defendants, in addition to being charged with `possession', were charged with `possession with intent to supply'--a charge subject to provisions of the law meant for the control of drug trafficking. Also, charges 3 and 4 above are by law within the realm of a drug trafficking offence. Fifteen black and 16 white defendants were charged with a drug trafficking offence, and four black and two white defendants were charged with `possession'. Three of the black defendants did not go through a jury trial because they pleaded guilty to the charges brought against them, one defendant for `possession' and `possession with intent to supply', and two defendants for `possession'. Two white defendants pleaded guilty, one to the charge of `possession' and the other to both `possession' and `possession with intent to supply'. This article derives its substance from observations of 15 not guilty cases involving 16 black (two of the defendants appeared as co-defendants) defendants dealt with at the Crown Court, for the fundamental reason that they significantly portray race in a claims-making process that aimed at achieving a jury conviction or acquittal. To add breadth to the analysis, data are drawn from white defendants' not guilty cases to the extent that they show differential modes of barristers' claims-making activity on the basis of race, thus highlighting the representation of racial imagery in the prosecution and defence of black defendants' cases. Data from the guilty plea cases give further emphasis to the portrayals in the claims-making process.
Observations were carried out in different courtrooms, thus providing me with insight into claims-making activities of various barristers that took place in the separate cases. Oral statements were recorded in shorthand and the observed proceedings which form the main material of analysis will provide a descriptive account of an interactive process as it occurred in the natural setting of a courtroom. This will be shown in a sample of the interrogation of witnesses by prosecuting and defence barristers. The form of questioning demonstrates attention to detail in subjects which reveal what seems, from my observations, to be barristers' awareness and conceptions of race in the legal battle of words to establish guilt or innocence. In addition to the observational methods, interviews and discussions were held with a sample of six defendants, 12 defendants' relatives/friends, five police officers, six probation officers and two court staff, often during recess (sometimes over a cup of tea) or after a trial. The interviews and discussions revolved around issues on drugs, crime, criminal justice and individual cases that appeared in court. Although the findings do not form part of the data used for detailed analysis, they address the significance of knowledge and therefore add to the wealth of qualitative material relevant to this study of claims-making and social construction in drug trials.
It is worth noting at this point that the importance of this study does not lie in its statistical significance and as such, the author does not suppose that the recorded courtroom discussions represent the generality of the courtroom dialogue in the court researched into during the period of observation. Furthermore, the study may not provide a basis for substantial generalization vis-a-vis other courts and times. However, the findings of this study do allow for an analysis of the minutiae of trial proceedings as seen and presented to the jury by barristers, and invariably create an opening to an inquiry that addresses the in-depth embodiment of sociological factors within the court process. The influence of racial awareness was highlighted in the fact that the claims-making activities showed similar patterns in a significant number of cases.
Black People and the Criminal Justice System
A brief review of the relationship between black people and the criminal justice system is the main step towards putting barristers' claims-making activity in drug trials into perspective. There has been a growth in concern over the position of black people as suspects, defendants and offenders in the criminal justice system. Official statistics and research studies have for many years shown that black people are over-represented in the arrest, conviction and prison statistics (Stevens and Willis 1979; Home Office 1983, 1986, 1989, 1992, 1993, 1994; NACRO 1986, 1992; Walker 1988; Hood 1992; Penal Affairs Consortium 1996). This includes drug offences(2) (Home Office 1986, 1989, 1994). It has been argued that over-representation arises because black people are more likely to come into contact with the criminal justice agencies. Black people are more likely to be arrested (Smith 1983; Smith and Gray 1985; Jefferson 1988, 1991; Dholakia and Sumner 1993); they are more likely to be charged and less likely to be cautioned (Landau and Nathan 1983; Cain and Sadigh 1982; Mair 1986); they are more likely to be convicted (Home Office 1983). Black people face a greater chance of receiving a custodial sentence even after controlling for relevant factors (Hudson 1989; Runnymede Trust 1990; Hood 1992; Penal Affairs Consortium 1996), and are more likely to serve longer sentences for certain offences (Home Office 1994). A Home Office booklet, Race and the Criminal Justice System also observed:
Afro-Caribbeans are more likely ... to be remanded in custody before trial ... The type of offence with which they were charged only partly explains this difference ... Afro Caribbeans are more likely ... to be tried at the Crown Court. This is partly because they are more likely to be charged with indictable-only offences. They are also more likely to be tried at the Crown Court in triable either-way cases. (1992: 15)
An extensive research literature has provided empirical and theoretical evidence which relates this problem to improper discriminatory treatment that black people receive in the criminal justice system, from their encounter with the police to the sentencing stage. Most of all and of relevance to this paper is the relationship between black people and the police, which has received wide attention as reflected in documented studies, political debates and mass media coverage. Considerable emphasis has been placed on discriminatory and racist practices of the police as a significant explanation for the disproportionate presence of black people in the crime statistics(3) (see Gilroy 1987a, 1987b). Allegations against the police have included constant suspicion, harassment and criminalization of black people, differential high-policing of black communities, indiscriminate stop-and-search activities in black localities leading to arbitrary arrests of black people (Hunte 1966; John 1970; Hall et al. 1978; Institute of Race Relations 1979, 1987; Blom-Cooper and Drabble 1982; Demuth 1978; Gordon 1983; Solomos 1988, 1989, 1993; Day 1989; Chigwada 1989, 1991; Cashmore and McLaughlin 1991; Hiro 1992; Keith 1991; Smellie and Crow 1991). Cain and Sadigh (1982) note that because they are targets of proactive and heavy policing, many of them are brought before the court. These allegations have included complaints made by black people that they experience hostility, injustice and discrimination from the police, in the form of, for example, police use of excessive physical violence and racist language, drug planting and fabrication of evidence, susceptibility to police questioning and arrest (Solomos 1988, 1993; Chigwada 1991; Reiner 1985; Smellie and Crow 1991; Smith and Gray 1985; Jefferson 1991). Hall has observed:
Black people of all ages feel that there is discrimination in the police service ... Some feel that the police are quick to label them as criminals, concentrating on areas of so-called `black crime' such as mugging and drugs. (1989: 1)
The claim that black people's disproportionate presence in the criminal statistics results from discriminatory practices of the criminal justice process has been met with criticisms.(4) The line of analysis relevant to this article is that which relates black people's over-representation in the criminal statistics to their disproportionate involvement in crime. For the sake of this paper, this approach addresses issues of socioeconomic deprivation, crime/drugs, sexuality and violence in relation to black people. The argument that black people are disproportionately involved in criminal activities has been supported by referring to the socioeconomic deprivation that they suffer. Stevens and Willis (1979) argue that the over-representation of black people in the arrest rate is partly related to differential rates in crime attributed to socioeconomic deprivation. Lea and Young's (1984) evidence point in a similar direction, relating the high black arrest rate to higher offending behaviour generated by deprivation (also see Reiner 1985). There are theoretical justifications for taking this line of argument, which principally stem from criminological and sociological theories that have argued that crime lends itself most commonly to poor life conditions and social problems in lower class areas (see Cloward and Ohlin 1961; Cohen 1955; Merton 1957; Downes and Rock 1988). On comparing socioeconomic factors such as employment, housing and education, studies and official statistics have revealed that black people are more marginalized than other racial groups (Brown 1984; Penal Affairs Consortium 1996; Rankin 1991; Brooks 1987).
In explaining `black criminality', the popular view associates criminal attitudes with economic, social and physical degeneration characteristics of inner city areas where most black people reside. Gus John indicates this widespread notion in his observation that:
the state, the police, the media and race relations experts ascribe to young blacks certain collective qualities e.g. alienated, vicious little criminals, muggers, disenchanted, unemployed, unmarried mothers, truants, classroom wreckers etc. (1981: 155)
Lord Scarman's highly publicized report (1981) on the 1981 Brixton riot noted that black people suffer an adverse and complex form of deprivation not experienced by other racial groups, and argued that their circumstances force them into a life of crime.
Other studies have acknowledged a direct relationship between `black criminality' and deprivation. For instance, Pitts observes that:
young black people who live in the most crowded homes, whose parents have the lowest income, who go to under-resourced schools and have the poorest educational and employment opportunities, are engaged in crimes of poverty. (1986: 143)
Socio-economic factors have formed a notable subject in studies of black people and criminal justice. Being over-represented among the unemployed and working class is argued to make black people more vulnerable to differential policing and arrest (see Box 1981; Jefferson 1988, 1991). Again, socio-economic variables such as unemployment and homelessness have been known to influence critically other criminal justice decisions such as prosecution, bail and sentencing (Box and Hale 1986; McBarnet 1983; Carlen 1988; Chigwada 1989; NACRO 1993; Crow and Simon 1987).
The issue of drugs, especially drug dealing, has been incorporated into the analyses of black people, crime and deprivation. For many years, concerns about drug trafficking have been a subject of great debate. The media have given it prime exposure, proclaiming to the public its dangerous existence with the accompanying image of the deadly and greedy drug trafficker who sells drugs to users for profit; he is perceived as `bad' and `evil'. The implementation of harsh punitive measures for a drug trafficking offence--up to a maximum of life imprisonment (Home Office 1985) and the expenditure on law enforcement highlights the government's strategy to combat this menace. Over the years, race has become gradually absorbed into the discourses of drug trafficking. Inner city localities, referred to as high crime areas, are portrayed and reinforced by the media and the police as drug dealing areas with black men defined as the drug dealers and represented in the image of professional drug traffickers (Dorn et al. 1992; Keith 1991). According to Cashmore and McLaughlin,
the concern about black youth and their supposed `heritage of violence' as `muggers', `drug barons', `steamers', `yardies' and `posses' has been handled in such a way as to engender public support for police strategies, especially as most of the stereotypes have been uncritically accepted and, at times, supported by politicians and the mass media. (1991: 11)
With the publicized images of black people and drug dealing, the supposed link between race and crime is reinforced, and further solidified by constant references to the socio-economic marginalization of black localities. The popular perception is that black people are potential criminals, that those who experience deprivation identify with crime including drug dealing (Hiro 1992).
Alongside drugs have been allegations of sexual immorality (see Gilroy 1987b; Howe 1973). The image of black people and sexuality has undergone a gradual construction process which found its origin in the sixteenth century encounters between the English and Africans on the coast of Africa and in the slave societies of the West Indies (see Walvin 1973). Those periods of slavery saw sexuality as a characteristic symptomatic of an incurable black immorality. As Barker (1978: 121) observes, `No aspect of the unfavourable negro image had wider or deeper roots than the allegations of insatiable sexual appetite.' Black sexuality was conceived in both cultural and biological terms. African nakedness gave importance to the concept of black sexuality, for it was a conduct visualized as an indication of sexual abnormality and cultural inferiority. In a biological interpretation of sexual relationships between black males and females, the black race was described as libidinous and naturally promiscuous with uncontrollable sexual urges; their response to sexual desires was perceived as inevitably animalistic in nature (see Caplan 1987; Walvin 1973; Barker 1978). Polygamous relationships in Africa and the West Indies, and alleged public prostitution in Africa received explanations that related them to Africans' craving for sexual needs. The widespread conception of black people as constituting a branch of humanity with unusually powerful sexuality did not disappear with the abolition of slavery, instead, the belief has since been reproduced in various contexts. Hill (1967) has noted that there is a popular belief that black men are more strongly sexed than white men. The image of black sexuality has been reinforced not only in its moral context but also in terms of its link to crime. Gilroy (1987b) indicated the constant association of black people with vice offences. Black men have been accused of engaging in immoral activities involving pimping and living off white female prostitutes. Hiro notes, `the stereotype of the black pimp, ostentatiously dressed and driving a flash car, was becoming a fixture of popular mythology' (1992: 36). Rastafarianism is portrayed as a `mafia, type organization dealing in prostitution and dope ...' (Cashmore and Troyna 1982: 12). In addition, they draw attention to the link between black unemployment, prostitution and drug dealing.
Further to the above portrayals is the popular representation of black people in reference to violence (see Solomos and Rackett 1991; Dorn et al. 1992; Keith 1991). Violence has for many years been perceived as an essential element of black people. Reflected, for instance, in the major public disorders of 1958, 1976, 1980, 1981 and 1985 in inner city localities in parts of England, media coverage and publicized political debates focused attention on images of race as the root cause of the unrest (see for example Benyon and Solomos 1987). Another notable example is violent street crime, referred to as `mugging', which since the early 1970s has been socially constructed and popularized by the police, courts, politicians and the mass media as a `black crime', with inner cities classed as the principal centres of `mugging' (see for example Cashmore and McLaughlin 1991; Hall et al. 1978; Solomos 1993). Official statistics reveal a high number of black people in the crime figures for violent street crime, other violent theft and offences of violence (Home Office 1983, 1984, 1986, 1994). In 1996, the racialization of street crime and violence was again publicly reinforced by Sir Paul Condon's (the Metropolitan Police Commissioner) statement that a significant proportion of street crimes are committed by young black males. A comment by Sir Kenneth Newman (the then Metropolitan Police Commissioner) in the aftermath of the 1981 Brixton riot portrayed a link between race and violence. According to Clare, he was quoted in the American Police Magazine as stating:
In the Jamaicans, you have a people who are constitutionally disorderly. It's simply in their make-up. They are constitutionally disposed to anti-authority. (1984: 52)
Claims have been made by the police that black people are hostile and aggressive towards them; the police have also alleged insolence by black people (see Pitts 1986). According to Humphrey (1972: 221), `It is now almost textbook knowledge in police circles that West Indians are argumentative, moody, excitable and arrogant'. Similarly, Keith cited Banton (1972) as noting that:
West Indians are sometimes regarded as more difficult to deal with, being disputatious and very ready to register complaints against the police. They are also regarded as more violent than English men. (1991: 193) Chigwada also stated that black women, unlike their white counterparts, are believed by the police to be disruptive, aggressive and hostile. These attributes, the police feel, are consistent with their `innate racial characteristics' (1991:139). Studies, political debates and media reports have shown that an antagonistic relationship exists between the police and black people, as exemplified in incidents of violent conflicts between the two groups. While black people allege police brutality, the police allege use of violence on them by black people. To the police, violence, disruptiveness and race are correlated (see Cashmore and McLaughlin 1991; Keith 1991).
As it stands, the arguments surrounding issues of black people and criminal statistics have produced mixed findings. This is not a comparative study of the literature, so it is not the intention of the author to provide a critique of the conflicting views. Instead, this article reveals that the explanatory accounts become intelligible and relevant at the point of claims-making activities governing barristers' discourse in drug trials. In the next section, claims-making is placed within a theoretical perspective that lays a foundation for our comprehension of the role of race in barristers' talk.
Claims-making, Discourse and Race
We are concerned with how prosecuting and defence barristers' discourse in drug trials appears to intricately reproduce race as a category of criminality or non-criminality through the process of claim-making. According to Spector and Kitsuse, `claims-making is always a form of interaction: a demand made by one party to another that something be done about some putative condition' (1977: 78). Best describes claims-making as ` ... a rhetorical activity' (1987: 102). He adds, `Claims-making is an act of communication ... Claims-making attempts to persuade' (1989: 1). In an interactional situation, the prosecutor demands that a defendant be adjudged responsible for an alleged drug offence; the defence on the other hand, claims that the defendant is innocent. These claims are argued, justified and represented by barristers in order to persuade the jury to find their respective assertions acceptable.
Barristers' discourse demonstrates claims-making as a principal verbal weapon by which the meaning of an alleged drug offence is socially constructed within the `fact finding' process of court inquiry. Social construction indicates that a defendant's guilt or innocence is influenced by the subjectivity that surrounds definitions placed upon the factual evidence of a drug case. This is revealed in the barristers' own typifications of the substantive elements of cases. Although the facts of a drug case underlie barristers' claims and form the basis of the claims-making activity, their existence does not in itself constitute the establishment of guilt or innocence. Instead, the facts form part of the rhetorical activity of barristers in drug trials; they form part of the process through which drug cases involving black defendants are subjectively described. Best observes the relevance of facts in the claims-making process. He has employed the terms `grounds' and `warrants' as vital rhetorical devices utilized in the persuasion process. `Grounds' constitute the key facts of a condition which form the basis of an assertion. `Warrants' are `statements which justify drawing conclusions from the grounds' (1987: 108); they are used to emphasize and solidify a line of argument.
Whilst claims have grounds, the nature of the claims are justified by way of representation, and accordingly, Best (1989) identifies `typification' as an essential component of claims-making in any social condition. It is in this context that claims-makers can adopt any promotional strategy to realise their goal. In drug trials, barristers support the grounds for their claim by subscribing to the `warrants' and `typifications' that they believe would sound meaningful and convincing to the jury. In the process, the objective basis relevant to the claims becomes distorted in the rigmarole, legal niceties and bartering between them. This is because the claims-making activity of barristers is a process influenced by a variety of human elements which they introduce in the construction of `reality' in the courtroom. Such human elements described by Box (1981: 159, 171) as `non-legalistic considerations' or `irrelevant criteria', or in the words of Platt (1969: 141), `extra-legal resources', and according to Quinney (1970: 142), `extralegal factors', reflect barristers' stockpile of knowledge which form the reproductive way through which racial images are put into their legal discourse.
What is demonstrated is how the awareness of legacies is embedded in the `fact establishing' process. The pattern of proving guilt or innocence means tapping into knowledge which has as its ingredients elements of racial awareness, stereotypes and beliefs (Kalunta-Crumpton 1996). Drug trials place drug cases within the realm of the wider society, of which the jury is a part; they reveal that the court is part of the society, as such it is an institution that operates with reference to the social structure (see Eaton 1986; Quinney 1970). On looking at strategies by which information about a drug case is manipulated and communicated through language, we see how arguments relating to black people and criminal statistics proliferate in the courtroom to legitimize claims regarding the probable guilt or innocence of a defendant. As Best states, ` ... the way claims are articulated also affects whether they persuade and move the audience to which they are addressed' (1987: 102). Barristers' discourse in the court process is neither unique nor unfamiliar--their language is analogous to that used in political discussions, throughout the mass media and in the works of academics. By way of claims-making, barristers' stocks of knowledge, also implicit in society, seem ingeniously to reproduce familiar racial imagery as part of the process by which claims are justified.
This is not to say that barristers do not act with reference to the law. A fact not to be ignored is that their discourse of drug cases is guided by legal rules and procedures (see McConville et al. 1991), however, as McConville et al. (1991) point out, criminal cases are constructed in the utilization, manipulation and interpretation of legal rules. This indicates that legal evidence is .not devoid of social effects and so is able to have a discriminatory influence in court cases (see Cooney 1994; McConville et al. 1991). Cooney quoted Lafree (1989) as stating that `In actual practice, evidence is not a fixed commodity but a purposefully constructed set of documents, testimony, and material objects' (1994: 838). Cashmore and McLaughlin (1991: 40) also observe that `stereotype images' and `convenient myths' rather than `empirical facts or scientific observations' often determine the construction of realities. According to Mehan and Wood (1975: 18) `the factual matters of a case comprise only a part of the apparatus which the courtroom participants employ to decide a case'. What is important in the claims-making and social construction process is how barristers in the legal setting negotiate knowledge through language in the bid to persuade. An argument derives much of its intelligibility not from its facticity but in its logicality. We shall be looking at how prosecutors seem to reinforce images of race, crime/drugs, socio-economic deprivation, violence and sexuality in their effort to establish a defendant's guilt. On the other hand, defence barristers' claims-making activity bears resemblance to the widely acknowledged information about race and policing, which they further propagate.
The Prosecution and the Social Construction of Guilt
As Parker et al. state, the prosecutors are `the providers of key information about the details and circumstances of the offence ...'; they could make an offence `sound much worse ... or it could sound much less serious than it first appeared ...' (1989: 98). The grounds for a drug offence allegation are not enough to secure a conviction. The process of establishing guilt embodies inter alia substantiating and justifying allegations by drawing upon various contexts of facts and circumstances about defendants and expressing them in a language that seems to be informed by knowledge (see Frohmann 1991), with underlying racial symbols. This article argues that the prosecution's interrogation of defendants significantly pinpoints defendants' histories to the jury in a way that subtly locates cases within an external `reality' from which a drug offence can be inferred. Arguments are made to sound plausible and `the same' reasonableness is expected from the jury in its decisions.
Socio-economic deprivation as justification: evidence from the study
Socio-economic deprivation is relevant in cases involving defendants charged with a drug trafficking offence. A notable strategy that the prosecution adopts to prove a defendant's alleged involvement, in drug trafficking is to describe the offence as an economic venture. In the 1986 Drug Trafficking Offences Act, provisions are made for the confiscation of drug traffickers' assets identified as proceeds of drug trafficking. The provisions:
allow the court to make assumptions that any property appearing to the court to have been held by the defendant the previous six years was derived from drug trafficking; that any expenditure made by him was from drug money; and all property received by him was free of any other interests. (Sallon and Bedingfield 1993: 168)
In this context, the prosecution's case rested on their interpretation of an alleged drug trafficking offence as a commercial transaction. In all the cases in this author's research where defendants were alleged by the prosecution to have benefited from drug trafficking, the defendants' assets and their alleged connection with drug dealing were crucially linked to their identity as a drug dealer. The assets were claimed as evidence, proceeds of drug trafficking, to prove the alleged offence (Kalunta-Crumpton 1996). Proceeds of drug dealing associated with the defendants included jewellery, money, clothes and a car.
The significance of the prosecution argument lay in the location of the alleged proceeds of drug trafficking within the realm of the defendants' socio-economic circumstances. Of the 15 defendants charged with a drug trafficking offence in the study, 13 (87 per cent) were claimed by the prosecution to have made a profit from drug dealing. Six (46 per cent) of the 13 defendants were unemployed, six (46 per cent) were self-employed (on an irregular basis) and one (8 per cent) had regular employment. Most of the defendants claimed welfare benefit (which most white defendants also received). The socioeconomic factor became vital in the prosecution process in that it enabled the prosecution to assess the defendants' accounts of the source of their possessions by weighing the alleged proceeds against their socio-economic conditions. In probing the source of assets, the prosecution prioritized the economic accountability of the defendants to construct them as drug dealers (Kalunta-Crumpton 1996). The picture was different with white defendants alleged by the prosecution to have benefited from drug dealing. Out of 14 white defendants associated with the proceeds of drug trafficking, ten were unemployed and four were in irregular self-employment. However, the question of guilt did not balance upon these defendants' socio-economic status and lifestyle as they were not subjected to a `detailed' and `emphasized' prosecution interrogation that gave importance to the black defendants' socio-economic condition. The argument as it was presented and emphasized to the jury was that a black defendant dealt in drugs because s/he was constrained by economic circumstances (see Kalunta-Crumpton 1996). This justification not only coincides with the ideology that deprivation and drug use/drug dealing are intertwined, with the former leading to the latter (Pearson et al. 1987; Green 1991; Dorn and South 1987; Burr 1987; Parker et al. 1986), it also seems to reaffirm the widely acknowledged image of the black community as deprived and consequently criminally minded. The following brief conversation between a police officer and a court staff exemplifies the shared understanding of the supposed link between `black deprivation' and `black criminality'. The conversation took place during a short adjournment of a drug case involving a black defendant. The police officer was a prosecution witness and the conversation started with a discussion about the weather and progressed into this:
Court staff I am amazed at the number of black people that appear in this court everyday. [that is as defendants]
Police officer It's unemployment. They can't help it, can they? Many of them haven't got a job and they don't seem to be interested in getting one anyway.
Court staff It's a shame, isn't it? They seem to stiffer the recession more but that's no excuse ...
Punch (1979) has noted that drug dealing allegations against black people are strengthened with any existence of assets considered as expensive. Humphrey (1972) has also observed that black people who drive sports or unusual cars are subjected to police suspicion. According to the Indian Workers' Association, `the police assume that all blacks are on the dole, and if they are not they ought to be' (1987: 2). Similarly, a black defendant commented on the police conception of black people who do not fit their description of the economically deprived:
The police have the general impression that all black people are drug dealers, especially if you have a car. They stop you in your car and ask you, where is your Mercedes? Where is your BMW?. Because you drive, you are a drug dealer.
Similar knowledge appeared to have formed a solid ideological construction that permeated the prosecution's discourse and created a bedrock upon which was based their justification in relation to proceeds of drug trafficking. Being unemployed justified the claim of drug dealing and being self-employed (or in regular employment) did not exonerate the defendants from the prosecution's scrutiny of their socioeconomic standing and the subsequent interpretation of a link between assets and drug dealing. The defendants' own explanations regarding the source of their possessions received a deconstruction that presented the accounts as illogical and false. To add strength to the prosecution's claim, defendants' assets were valued and the information presented to the jury while the prosecution searched for `accuracy' in the defendants' evidence.
The following case demonstrates how the particularization of alleged proceeds in the prosecution's inquiries specifically defined and highlighted the defendants' alleged involvement in drug trafficking in terms of a deprived socio-economic context.
A 40-year-old self-employed black male defendant was alleged to have made a profit from drug dealing. The alleged proceeds were a car, 700 [pounds sterling], 300 [pounds sterling], jewellery, clothes, gas shares, a building society account of 2,500 [pounds sterling] and a building society account of 30,000 [pounds sterling] in a name different from the defendant's. The following exemplifies the interrogation process.
Prosecutor Mr M, two building society passbooks were found in your flat and you have told us that the one that bears your name belongs to you and that the other belongs to a friend of yours called X ... Why was X's passbook in your possession?
Defendant He is a very close friend of mine. He left it with me to look after till he comes back from the US.
Prosecutor He is still not back to collect his passbook. You have not been of assistance to the police regarding the whereabouts of this man?
Defendant I have told the police all I know. He travelled to the US.
Prosecutor I am made to believe that the account in the name of X belongs to you. You opened an account in a false name in order to store away money from your illegal drug dealing business and that explains the 30,000 [pounds sterling] in that account.
Defendant It is not true.
Prosecutor I still suggest it to you that X does not exist.
Defendant He does.
During the interrogation, the defendant had earlier related the 2,500 [pounds sterling] in his account to his savings from his employment. The prosecutor still inquired:
Prosecutor You have not told us how you came about the 2,500 [pounds sterling] in the account in your name? Defendant It is my savings.
Prosecutor Your statement of account shows that you were regularly withdrawing as well as paying in money into that account (the prosecutor read out the bank statement). The withdrawals and pay ins can only be explained in relation to drug dealing, am I correct?
Prosecutor You claim approximately 57 [pounds sterling] social security benefit per fortnight and you have a Family (the defendant was living with his girlfriend and their child) to maintain. From where did you get money to pay into your account amounting to 2,500 [pounds sterling]?
Defendant I saved up that money. I told the police that I am an industrial cleaner. They saw an industrial machine in my flat.
Prosecutor So you are telling us that you receive social security benefit and work at the same time. You must know that it is illegal to do that.
Defendant I only do the job sometimes.
Prosecutor And how much do you earn from the cleaning job?
Defendant When I work, sometimes 100 [pounds sterling] a week, sometimes more and sometimes less.
Prosecutor Surely, you could not have saved 2,500 [pounds sterling] from that. You have a car, 2,000 [pounds sterling] worth of jewellery [valued by the prosecution], some expensive clothes [the jewellery, three silk shirts and two suits were presented to the jury as evidence]. Mr M, do you not think that your lifestyle is above your means?
Defendant I have worked as a mechanic, a full-time trader and a builder. I saved that money over a long period of time. I did not buy my clothes and jewellery all at the same time. My car is a Volkswagen and I have had it for seven years.
Prosecutor How much were you earning from these jobs in a week?
Defendant As a mechanic, I was earning about 200 [pounds sterling] a week.
Prosecutor What about the other jobs?
Defendant I can't remember. It has been a long time.
Prosecutor Can you account for the 2,000 [pounds sterling] worth of jewellery?
Defendant They don't all belong to me. Some belong to my girlfriend and some belong to friends that owe me money ...
The defendant was asked by the prosecutor with the approval of the defence barrister to divide the jewels into three sets--those that belonged to him, his girlfriend and his friends. As the defendant separated them, the court usher listed them individually. The categorized jewels were shown to the jury after which they were mixed together. The defendant was again asked to separate them exactly as he previously did. He did and the separate sets were cross-checked against the list. The interrogation continues:
Prosecutor Could you tell the court how you were able to afford the set that belongs to you?
Defendant Most were gifts from friends and relatives. This necklace (holding it up) I have worn for over 20 years without taking it off but the police took it off me. These rings, I have had for more than 15 years. I paid for them.
Prosecutor Could you show us the ones that were given to you by your relatives and friends? [the defendant did and the jury had a look at them]. How could your relatives and friends give you such expensive jewels? What do they do for a living? If you insist that you paid for the ones you have shown us, could you produce the receipts?
Defendant I don't have the receipts any more. It has been a long time since I have had them.
Prosecutor ... Two separate bundles of 700 [pounds sterling] and 300 [pounds sterling] were found located in different areas of your flat. Why was that?
Defendant I separated them for safety reasons.
Prosecutor How did those large sums of money come about?
Defendant The 300 [pounds sterling] I withdrew from my account. I borrowed 700 [pounds sterling] from my baby's mother in Italy.
Prosecutor [reading out the defendant's bank statement] Your account shows that you withdrew 300 [pounds sterling] on [date]. After that you made three other withdrawals. Is the 300 [pounds sterling] found in your flat the money you withdrew on [date]?
Defendant I am not sure.
Prosecutor When did you withdraw the money?
Defendant I can't remember.
Prosecutor Why would the lady in Rome lend you 700 [pounds sterling]?
Defendant She is my baby's mother. I am supposed to pay her back the money.
Prosecutor She must be rich. Your passport shows that you have been to Rome and you have told us that this lady sponsored the trip. For a lady you are not married to, why would she do that if she does not gain something in return?
Defendant We are very good friends and she has a very good job there.
Prosecutor I suggest it to you that the lady in Rome is your partner in the drug trafficking business and that explains your trip to Rome and the monies in your flat ... If you borrowed 700 [pounds sterling] and withdrew 300 [pounds sterling] from your building society account, why did you need 1,000 [pounds sterling]?
Defendant I wanted to start up a cleaning business.
Prosecutor You had 2,500 [pounds sterling] in your building society account. You did not have to borrow money, did you?
Defendant I needed more than that.
Prosecutor So you had to buy and sell drugs to raise more money?
Defendant I don't buy and sell drugs.
Prosecutor ... What about the 200 [pounds sterling] worth of gas shares?
Defendant That is an investment ...
This pattern of interrogation, applied to all black defendants' cases where proceeds of drug dealing were indicated, shows an overall examination of the importance of material possessions and socio-economic status. The above case also illustrates the image of deprivation on a broader scale in that by questioning the economic position of the defendant's relatives and friends, deprivation appeared to be consolidated in the prosecutor's mind as a permanent structural feature amongst black people. Evidently, the defendant's relatives and friends who were in court during trial were black. In addition to the ascription of a peripheral socio-economic status to the defendant's relatives and friends, criminality was ingeniously placed in the imputation. The case also shows that the fact that the defendant received supplementary benefit in addition to money made from his self-employment made a positive contribution to the prosecution's case, for it effected the application of a criminal label to an act not directly related to the alleged drug trafficking offence. This contrasts with the presentation of similar white defendants' cases, in the sense that being in receipt of welfare benefit was not an issue addressed by the prosecution, thereby exempting the defendants from any criminal definition of such an act. Self-employed black defendants were presented by the prosecution as people who do not fit into the image of the economically productive by constructing their means of achieving success through any legitimate self-employment as suspicious. On the other hand, the absence of a prosecution inquiry that links economic aspects to drug dealing in cases of self-employed white defendants seemed to indicate normality and acceptability of legitimate access to income and wealth among white people.
In this case involving a 43-year-old self-employed white male defendant, the alleged proceeds of drug dealing were 725 [pounds sterling], money in his bank account, with particular reference made to 5,000 [pounds sterling] paid into the account by the defendant. Found on the defendant on arrest was a list of people's names, weights and prices which the prosecution related to names of customers and weights and prices of drugs. Before the jury was seated, the prosecution and the defence debated over what should and should not be presented to the jury as proceeds of drug dealing. The defence argued that the list had nothing to do with the case and should not be mentioned. The defence also claimed that there was no evidence to show that the 725 [pounds sterling] found on the defendant on arrest was made from drug dealing. The 5,000 [pounds sterling] was attributed by the defence to the defendant's share of proceeds from the sale of his matrimonial home and other monies in his account were related to his self-employment and a previous business which collapsed. The prosecution accepted the story but insisted on using as evidence the list and the 725 [pounds sterling] to support his claim of drug trafficking. The judge advised the prosecution not to emphasize the list.
The prosecution interrogation of the defendant about the supposed proceeds followed thus:
Prosecutor When you were searched by the police, a list was found on you. The list contained names of people, weights and prices. Is that right?
Defendant That is correct.
Prosecutor Why would you keep such a list?
Defendant Some of the names on the list are people that borrowed money from me and others are people that I sold metal powder to.
Prosecutor Mr H, you wrote down weights and prices against the names on the list, why would you do that?
Defendant I sell metal powder and I weigh it before selling. That is what the weights on the list mean. What you call prices are money paid to me for metal powder and money that people owe me.
Prosecutor A sum of 250 [pounds sterling] is included in this list, Was that payment made to you or money borrowed from you?
Defendant I think that was money borrowed from me.
Prosecutor What about the sum of 535 [pounds sterling] ?
Defendant I don't have the list so I can't explain all the details on the list. I wouldn't have kept a list if I could remember all that.
Prosecutor Why would you lend a person 250 [pounds sterling]?
Defendant Why not if I have it and a friend of mine desperately needs it.
Prosecutor Do you always lend money to your friends when they ask for it?
Defendant Not always. If I have the money, I do. I do a bit of sculpturing and moulding as well as sell metal powder. My friends do favours for me and I don't see why I should not help them if I can.
Prosecutor Why did you have the list on you on the day that yon were seen supplying drugs to Mr X?
Defendant I don't see anything wrong with having a list on me. The list has nothing to do with drug dealing and I never supplied any drug to him.
Prosecutor Mr X's first name is included on this list as Ray. He is one of your customers?
Defendant I don't call him Ray. I call him Raymond (whilst giving evidence, the defendant on one occasion called Mr X `Ray' which did not seem to be noticed by the prosecution).
Prosecutor Mr H, is it not correct to suggest that the names on the list are names of customers that you sell drugs to and that the weights and prices indicate the quantity of drugs sold or to be sold and the monies you have received or yet to receive?
Defendant That is not true.
Prosecutor ... Why was 725 [pounds sterling] found on you at the time of arrest?
Defendant That was payment for a moulding job I did.
Prosecutor So you are telling us that the money was not your profit from drug dealing?
Defendant I don't deal in drugs.
Aside from the illustrated difference in emphasis allocated to the issue of proceeds and in the relevance given to socio-economic factors, case 2 further demonstrates that the process and outcome of the negotiation that took place over what should be identified as proceeds of drug dealing reveals that what constitutes evidence of drug trafficking (or even any offence) may vary and the variation may be determined by the discretion of criminal justice officials, which may in turn result in a difference in what is presented as evidence before the jury and ultimately affect conviction or acquittal decisions.
Even in a situation of unemployment, the prosecution examination of white defendants did not scrutinize their socio-economic circumstances in the allegation of proceeds of drug dealing so that the defendants' accounts of the source of their assets (the supposed proceeds) appeared plausible.
It was claimed by the prosecution that the defendant, a 36-year-old unemployed white male made a profit of 96 [pounds sterling] from drug dealing for which he was interrogated as follows:
Prosecutor When did your girlfriend give you the money? [the defendant claimed that he borrowed 100 [pounds sterling] from his girlfriend]
Defendant Same day I was arrested by the police, in the morning. It's a loan. Prosecutor Why is it taking you a long time to pay back the money that you owe?
Defendant I mean to pay her back when I start work soon. She's not in a hurry for the money. She knows I'll pay her back.
For an unemployed black defendant, the picture that the prosecution created for the jury was one of typical socio-economic deprivation.
A 21-year-old unemployed black male defendant was alleged by the prosecution to have made 14.50 [pounds sterling] from drug dealing. In relation to this, the interrogation comprised the following:
Prosecutor You have told us that you are unemployed and that you receive 28 [pounds sterling] unemployment benefit a week?
Prosecutor I believe that you spend money on at least food?
Prosecutor You have told the court that you are a heroin addict and that on the day you were arrested, you were buying drugs?
Prosecutor You had 14.50 [pounds sterling] in your possession when you were arrested. Am I right?
Prosecutor And you have told us that you had 40 [pounds sterling] on that day and that you gave 25 [pounds sterling] to the dealer?
Prosecutor ... Could you tell the court how you came to have 40 [pounds sterling] on the day that you were arrested when you claim 28 [pounds sterling] unemployment benefit a week?
Defendant My grandma gave me some money plus my social security.
Prosecutor How much did your grandmother give to you?
Defendant [pause] I can't remember.
Prosecutor Did she give it to you on the day you were arrested?
Defendant No. About two or three days before but I collected my social security on that day.
Prosecutor ... If you had 40 [pounds sterling] on you on that day and you paid 25 [pounds sterling] to the dealer, you should have had 15 [pounds sterling] on you on arrest but you had 14.50 [pounds sterling]. Why was that?
Defendant I paid 50p for a bus ride.
Prosecutor From which area did you catch the bus?
Defendant From Y road. I walked to that road from where I live to avoid paying more bus fare.
Prosecutor ... What quantity of heroin do you use in a day?
Defendant Half a gram.
Prosecutor And how much does half a gram of heroin cost?
Defendant About 50 quid street price.
Prosecutor You spend 50 [pounds sterling] on heroin alone. On 28 [pounds sterling] a week, how could you possibly afford to pay 50 [pounds sterling] daily on heroin that you must have? I suggest it to you that you sell drugs to make profits in order to meet your habit and that on the day that you were arrested, you were dealing in drugs.
Defendant I was there to buy `gear' (that is, heroin). I don't sell drugs.
Prosecutor Then how do you afford to spend 50 [pounds sterling] on heroin everyday?
Defendant I get money from my grandma.
Defendant [pause] No. Sometimes.
Prosecutor If you are not a drug dealer, how else do you raise money for drugs?
Defendant [pause] Theft and burglary. I don't always pay 50 [pounds sterling].
Prosecutor Oh you steal from people and burgle buildings and homes to raise money to buy drugs. Is that right?
Defendant [pause] Yes.
Prosecutor ... If you use 50 [pounds sterling] worth of heroin a day, why did you spend 25 [pounds sterling] on the drug when you had 39.50 [pounds sterling]?
Defendant The 40 quid right! was all I had. I needed some money for food, transportation and other things. All I wanted was a small amount of `gear' to keep me stable for some hours.
Prosecutor I would have thought that a desperate addict would forego such things as food and transportation for drugs. Since 25 [pounds sterling] worth of heroin would not have sustained you throughout the day, how did you intend paying for the remaining quantity that you needed for that day?
Defendant [pause] Thieving.
Prosecutor Could you please speak up so that the jury can hear you?
Defendant Thieving. I only needed a small amount to keep me stable for some time.
Prosecutor How many hours would that quantity have lasted you?
Defendant About 12 hours.
Prosecutor Enough time for you to steal to raise money for more drugs?
Defendant [pause] Yes.
If we give full consideration to the way that `trivial' assets are highlighted as proceeds of drug dealing, we will understand the important role of the imagery of deprivation in the prosecution's argument. In the above case, the objective to prove a drug trafficking offence resolved into a subjective creation of another criminal dimension to the alleged offence. While indicating the unemployed position of the defendant, emphasis was placed on the relationship between his drug habit and drug-related criminal behaviour in order to prove to the jury that he was after all a criminal, an approach which tallies with the view that deprived drug users turn to crime to finance their habit (for example, Dorn and South 1987). In all cases where defendants were unemployed, the prosecution seemed to capitalize on the ideology that links black unemployment to crime.
That race manifested itself in not guilty cases as shown above does not necessarily mean that a guilty plea stamps out any possibility of images of race penetrating the language of the prosecution or the defence. Irrespective of the few guilty plea cases, there were indications that portrayed the wider context of knowledge about drugs, crime and race in the prosecution's statements and the defence's mitigating arguments prior to sentencing, which was emphasized by the disparate patterns in which the barristers presented similar black and white defendants' cases before a judge. In relation to the defence, although the arguments raised were aimed at attracting a lenient sentence for both black and white defendants, the approach adopted located the two racial groups of defendants in different contexts that appeared to rely upon popular notions of race, not dissimilar to some implicit racial connotations embedded in the prosecution's description of black and white defendants' cases in not guilty trials. In a guilty plea case involving an unemployed black defendant charged with possession of a controlled drug, the prosecution's profile on the defendant noted the length of unemployment and previous convictions, and the mitigating argument by the defence focused on socio-economic factors which acknowledged the defendant's unemployment, related that the defendant had a child who lived with the mother, and blamed his involvement in crime on bad company and bad environment. In response, the judge asked (a) if the defendant supported his child financially and (b) what his plans were for employment. In answer to the first question, the defendant stated that he contributed to the upkeep of his child, and to the second, the defendant stated that he had a job interview to attend.
The scenario was different in a guilty plea case of an unemployed white defendant also charged with possession of a controlled drug. The prosecution claimed that the defendant had co-operated with the police adding that the drug involved was a small quantity meant for the defendant's own use. The defence gave credibility to the prosecution's observations by addressing the defendant's personal achievements in football and his ambition to become a professional footballer which was stated as the reason behind his unemployment; and the risk he took in saving a child from drowning which had earned him great respect in his community. Neither the prosecution nor the defence presented the defendant's history and image in a detrimental manner as was seemingly the case with the black defendant, and accordingly, both barristers' statements in the white defendant's case were accepted by the judge without further investigation. Another notable point illustrated in the case of the white defendant is that the prosecution's show of tolerance for drug use depicts the lesser degree of seriousness that law enforcement ascribes to drug use, and especially problem drug use which according to studies is most common among whites (see Auld et al. 1986; Inner London Probation Service 1991; Mirza et al. 1991), unlike drug trafficking which is associated with black people. Apparently, drug users/addicts are widely perceived as weak and helpless victims of drug trafficking and drug traffickers on the other hand are viewed as unscrupulous people who exploit and make commercial profit at the expense of victims of drug addiction (see Dorn and South 1987; Green 1991). As it appeared, barristers shared and reproduced this common knowledge in the courtroom.
The image of black sexuality
As the perception of black sexuality has received wide negative recognition within society, a similar notion permeated the prosecution discourse as a strategy aimed at biasing the mind of the jury against a defendant. Of the 16 defendants, this theme gained significance in drug cases involving seven (44 per cent) defendants. An alleged drug offence was judged within the context of a defendant's sexual morals, although sexual behaviours were not officially alleged criminal by the prosecution. The courtroom itself is a site in which the need to maintain English morals and values is revealed. Studies also show that prosecutors adhere to dominant societal values and morals (see for example Banks 1977). The prosecution subtly analysed defendants' morals in terms of the `typical' moral standards and apparently depicted their sexual conduct as abnormal, inappropriate and a negation of English morality. What seemed to have merely reappeared in the prosecution's discourse was a culturally transmitted conception of race and sexuality.
The defendant in this case was questioned about 104 [pounds sterling] alleged to be his proceeds from drug trafficking. The defendant claimed that he borrowed some of the money from a girlfriend. In response, the prosecutor's questions included:
Prosecutor ... Is the girlfriend you are talking about the mother of your children?
Defendant No sir.
Prosecutor Do your children live together?
Defendant Yes sir.
Prosecutor With their mother?
Defendant Yes sir.
Prosecutor Your children's mother is your girlfriend. Am I right?
Defendant [pause] Yes.
Prosecutor You told the police that you have many girlfriends. Is that right?
Defendant I did not tell them that. I told them I have other girlfriends.
The defendant also told the police and the court that his girlfriends (and relatives) assist him financially. In relation to this the prosecutor asked:
Prosecutor Do these girlfriends of yours give you money whenever you ask for it?
Defendant No sir. Sometimes they lend me money or give it to me and I don't have to pay back.
Prosecutor Why would they give you money without asking for it back?
Defendant They are my girlfriends.
Prosecutor You told the police that you get your money from girlfriends who pay you after gratifying them sexually.
Defendant No sir. I didn't say it like that. There must have been a mistake.
Prosecutor That was exactly what you told the police [the prosecutor read out the written statement of the interview that the police had with the defendant]. You prostitute for money. Am I right?
Defendant I don't think I said that.
The judge intervened at this stage and demanded that the recorded interview that the police had with the defendant be played to clarify the issue of sexuality. Because a tape recorder was not readily available, the case was adjourned for about two hours. On the disputed issue of whether the defendant told the police that his girlfriends pay him `after gratifying them sexually', the recorded interviewed followed thus:
Police Why do these girls give you money?
Defendant They are my girlfriends and they like me.
Police They give you money because they like you. Is that enough reason for them to give you money?
Defendant Yes sir. They like me because I satisfy them in bed.
Police [laugh] Did you say you satisfy them in bed? Is that why they give you money?
Defendant They give me money because they like me...
A black female witness gave evidence claiming that she had given money to the defendant on occasions. The prosecutor asked her if she had had sex with the defendant, how many times she had sex with him and if she paid him for sex.
Not only did the hours of adjournment illuminate the issue of sexuality, the prosecution also added credence to this line of argument by highlighting the sexual relationship between the female witness and the defendant. Along the line in the claims-making process, the prosecutor's construction of sexual immorality generated a criminal definition as shown in the allegation of prostitution.
Evident in the interrogation of the defendants were familiar stereotypical images of black sexuality. Promiscuity was revealed and so was the fact that the defendants had children outside wedlock. Reflected in these demonstrations is the popular belief noted by, for example, Weeks (1985) and Chigwada (1991) that the black family lack the moral security and stability which an `ideal' family life provides, due to the sexual promiscuity common in the black communities. Although sexual immorality was not a status that the prosecution ascribed to white defendants, information provided by defendants in this group during examination by the defence showed that some had children outside wedlock, were promiscuous, divorced and received financial assistance from female partners. Yet these bits of information did not result in an interrogation that posed a challenge to the defendants' sexual moral standards.
The image of violence
The prosecution's discourse of drug trials represented violence in a discursive form. Except for one defendant charged for assaulting a police officer, no allegation of aggressive behaviour towards the police was incorporated in the official reason for prosecuting defendants in the remaining 15 cases, yet in cases involving nine defendants this theme at some point in the claims-making process took the spotlight off the drug offence allegation and dominated the courtroom drama; it formed a justification strategem valuable to the prosecution in the criminalization of the defendants. In their evidence police officers alleged that the defendants displayed an aggressive conduct before or during their encounter with them. Police accounts of `what happened' during their encounter with some white defendants also indicated the occurrence of a scuffle arising from a refusal to be searched, an attempt to abscond or obstruction of police officers. There were also allegations by the police that some white defendants used abusive language in the form of, for instance, `fuck off', `fucking bastard' and `piss off'. Neither of these allegations, which the defendants involved denied, was notably addressed by the prosecution. For the black defendants, their alleged actions and words formed qualities characterized by the prosecution as violent and a deviation from conventional societal norms. Resisting arrest in a violent manner or putting up a struggle with the police exemplify alleged aggressive acts that amalgamated an alleged drug offence with further aspects of law-breaking. In the following case, the defendant questioned the relevance of allegations of violence to the case.
In this case, two police officers gave account of `what happened' leading to the arrest of a 34-year-old male defendant. The officers were on general patrol at about 1.15 am on a council estate when they saw the defendant and a rastafarian walking towards them. The defendant, they claimed, was talking loudly. The two men were stopped by the officers and subjected to questioning. On being examined by the prosecutor, the officers described the defendant as noisy, abusive and violent. In the words of one of the officers, the defendant `acted so violently' during their encounter with him. The defendant refuted the allegations. The claims-making process is exemplified below:
Prosecutor ... You agree that you were talking loudly?
Defendant I was not talking loud. I couldn't have been because I knew that it was late.
Prosecutor You were talking at the top of your voice and one of the officers asked you to lower your voice, did he not and you replied `I haven't flicking done anything'?
Defendant One asked me to lower my voice but I didn't say that. I must have said something similar but I am sure I didn't use the word `fucking'.
Prosecutor You signed the written statement of the interview you had with the police at the police station, did you not [the prosecutor read it out. The word `fucking' was abbreviated thus: `F']?
Defendant The police must have added the `F' to suit themselves.
Prosecutor Two officers could not have been lying about you talking very loudly when people were trying to get some sleep and being abusive when you were asked to lower your voice. They were on duty keeping the peace. Why would they tell lies about your behaviour on that morning?
Defendant It is not impossible, after all they are mates.
Prosecutor PC X saw an outline of what was later found to be a plastic bag containing cannabis in your breast pocket. In his suspicion, he did what he had every right to do. He put his hand in your breast pocket to bring out the contents and you violently grabbed his hand and dragged him towards the railing. Why did you do that? Why did you struggle with him if you did not intend getting rid of the plastic bag?
Defendant Nothing of that sort happened. If I dragged the officer, why didn't they charge me with assault? A little touch on a police officer is assault. Why was I not charged for assault if I dragged him and struggled with him? I know the police and what they can do. I have been charged before for assaulting some police officers and I was acquitted for lack of evidence. Since then I am always careful how I deal with them.
Prosecutor ... And why would you want to go to his flat? [in reference to the defendant's statement that himself and the rastafarian were going to the latter's flat] You wanted to use his flat for cannabis use?
Defendant I don't smoke weed. I wanted to go to his flat to listen to some reggae music.
Prosecutor So you were going to listen to reggae music at that time of the morning?
Defendant I don't see anything wrong with listening to music at any time as long as you don't disturb anybody. You see on that day I didn't want any trouble...
Prosecutor If you did not want any trouble, why did you not go straight home? Why did you decide to go with the rastafarian to his flat at approximately I am?
This case demonstrates how accusations of violence were lifted into visibility by the prosecution in a form that presented the defendants as representing a threat to law and order. Violence is despised by law enforcers, the state and society; it is seen as endangering social stability and embodying a basic violation of society. As Sarat has argued, violence `... speaks loudly, arouses indignation, and, as a result, its representation threatens to overwhelm reason' (1993: 21). The prosecution portrayed the police as representing law and order, and the defendants as typifying a danger and disruption to society. Violence on the police was expressed as an attack on society and a violation of national interest. The prosecution's presentation of the defendants in the image of violence was not unfamiliar; it seemed compatible with popular depiction of race and violence. Those black defendants who were believed to conform to the stereotyped notions of how black people behave in terms of aggression, fell prey to the prosecution's description of black incompatibility with normality.
The Defence and the Social Construction of Innocence
Defence barristers' discourse was imbued with stocks of knowledge that they believed would guide jurors' evaluation of cases in their favour. It demonstrated their awareness of racial imageries and in their interrogation of police officers, importance was given to the wider context of race and policing rather than the subjects vital to the case. Could this pattern of establishing innocence have worked against the interest of the defendants? It has been observed that defence lawyers act as double agents who work for both the court organisation and the defendants, but whose practices seem to be more committed to the benefit of the court (see Brown 1991). As participants in the criminal justice process, they are part of a system that could function to the disadvantage of defendants (Brown 1991). In the author's observations of drug trials, the defence's method of deconstructing a drug offence allegation suggests that wider issues of police racism became relevant features of the defence's claims. First, the defence argued that the police arrest of the defendants was based on unreasonable suspicion and a racist meaning was imputed. Secondly, the defence alleged police use of violence and racist language in their encounter with the defendants. The moral degradation of police officers formed the central focus of the defence and seemed to aim at attracting a jury's sympathy towards a defendant.
This section demonstrates how the defence imputed contrasting motives and meanings to actions of police officers leading to a defendant's arrest. In cases concerning 12 defendants (out of 16), the imputational strategy involved directing questions at police officers, which insinuated that police suspicion and arrest of the defendants was premised on racist ideologies. The defence raised such questions as `why did you decide to observe the defendant?'. The police answer to this type of question revealed that their actions stemmed from their perception of certain behaviours as suspicious. In response, the defence assigned meanings to police conduct which identified with the widely provided information that shows that the police view black people as potential criminals and in their operations and practices, the police discriminate against black people. In the case below, the defence presented police actions leading to the arrest of the defendant as conduct that was influenced by their assumed typicality of the social characteristics of people who are into drugs.
The police were on observation in an inner-city area of London and in the process observed a flat where the defendant was later arrested. Part of the defence barrister's interrogation of one of the police officers regarding their observation followed thus:
Defence Why did you pick on that particular flat to observe?
Officer Because of the number of people that went in and out of the flat within a space of one hour.
Defence How many people did you see going in and out of the flat within that time?
Officer About six.
Defence About six. Can you describe them?
Officer They were all black. I noticed a rastafarian go in with another male. I also noticed two ladies. The others were males and they arrived singly.
Defence Is there anything unusual about six black people going in and out of a flat within an hour?
Officer I think it is unusual.
Officer I don't know. I just think it is unusual.
Defence What did you drink was going on in that flat when you saw the rastafarian and the other black people go into the flat, drug dealing?
Officer We were not sure although we suspected that.
Defence You suspected that drug dealing was going on in the flat. Why was that?
Officer Like I said, I found their movement unusual.
Defence Officer, did you suspect that a drug transaction was taking place in the flat because of the number of people you said you saw go in and out of the flat within the space of one hour, or was it because you saw six black people including a rastafarian go into the flat within that period of time?
Officer Our attention was drawn to the flat because of the number of people that went in and out of the flat within a short time ...
Police evidence not only showed that certain behaviours were termed as typifying features of deviant behaviour, it also indicated that certain geographical areas are known for crime and subjected to police surveillance. The defence questioned the presence of police officers in particular areas, usually a street or an estate located in inner cities. In response, the police attributed their surveillance practices in those areas to their notoriety for drugs, especially drug dealing. This pattern of questioning is illustrated below:
Defence Why were you on observation in that area?
Officer The area is noted for drug dealing.
Defence ... How long had you been on observation before you noticed the defendant?
Officer About a quarter of an hour.
Defence How long would you say the defendant had stood on the street before you saw him hand over what you considered to be drugs to the first man?
Officer About ten minutes.
Defence ... According to you, the area is noted for drug dealing. Apparently, you were looking for such crime?
Defence We have been told that you decided to observe the defendant because you saw the act of standing on the street in suspicious terms?
Officer I thought his behaviour was suspicious. He was standing there and looking around.
Defence If you were in that area to detect drug deals, you must have associated his standing on the street with drug dealing, am I right officer?
Officer Not exactly. I still had an eye for other crimes not just drug dealing.
Defence In any case, the defendant became a suspect immediately you saw him standing on the street...
In the various cases, the defence argument showed their familiarity with the knowledge that black localities are popularly perceived as high crime and drug dealing areas that remain prime targets of police observation. The defendants and the localities were portrayed by the defence as being vulnerable to the imposition of a criminal label. By questioning police observations of inner city areas, the defence subtly suggested that the police employ selective procedures in their occupational activities. This implies that the selection of certain areas to watch means that certain groups of people would be liable to suspicion and in turn more vulnerable to arrest and prosecution. The defence related to the jury that police suspicion was not indicative of a drug offence and insinuated that such suspicion was determined by the police stereotypical classifications that structured their perceptions and influenced their response to the behaviours that they encountered.
Police use of violence and racist language
The specific issue of drug offences was at some stages in the claims-making process dormant and its place was occupied by stories that highlighted alleged mistreatment received by defendants at the hands of the police during arrest. Allegations of physical assault on nine defendants (out of 16 defendants) formed a justification that was raised into sensational focus by the defence. In four cases where police use of unpleasant remarks was also alleged, language incorporating words such as `black' and `nigger' was emphasized. Accusations of the use of violence and racial insults exposed police officers to a form of cross-examination that was suggestive of police racism. This is exemplified in the following questions asked of an officer by a defence barrister:
Question 1 Throughout the incident, you and your fellow officers physically assaulted the defendant?
Question 2 You manhandled him at the initial place of arrest, did you not?
Question 3 Officer, were you not the one that grabbed the defendant by the neck ... and pulled him into the flat as soon as the door was opened?
Question 4 You called him a black `scaghead' and asked him where he hid the drug?
Question 5 The defendant said that you were the one that called him a black `scaghead'?
Question 6 Why would he pick you out of 11 officers to be the one that called him a black `scaghead'?
Question 7 If you did not call him a black `scaghead', which of the other officers did?
Question 8 When the defendant was arrested, you handcuffed him, why was that? He could not have possibly escaped from 11 officers?
Question 9 The assault on him continued in the police vehicle and at his home?
Question 10 After being physically assaulted, the defendant complained of severe pains on his body especially in his groin, did he not?
Question 11 I can understand that. The doctor was a police doctor, am I right [in reference to the officer's statement that the defendant was medically examined by a doctor and there was no trace of bruises]?
Question 12 Why did he need a doctor if he did not sustain bruises from the assault by you and your colleagues?
Question 13 You tried to shove his head into the toilet ... and then tried to sprinkle the heroin into his mouth?
In the cases, the police officers questioned denied the accusations. Nevertheless, allegations of police abuse of the defendants were placed within an external `reality'. The language of the defence reproduced the existing extensive information which alleges that the police engage in practices involving the use of violence and racial abuse when dealing with black people. It appeared that the adoption of this mechanism was an attempt to persuade the jury to rely upon the long-standing and widespread knowledge of police racist attitude towards black people in order to make sense of the defence's claim. This mode of defence may have deviated from the fundamental issue as a court staff commented in one case:
He [that is, the defendant] is not doing himself any good by saying that the police assaulted him. His barrister should know better ... What he's doing is wasting the court's time. Why would the police beat him?... At the end, he's being tried for a drug offence ... Whether the police assaulted him or not is irrelevant in this case.
For defence barristers, however, rather than view allegations of police abuse of the defendants as an issue external to the drug offence case, they made noticeable reference to it as a supporting essential for the construction of innocence. In the one case where a white defendant alleged physical assault by the police, the defence drew no attention to the allegation while questioning police officers.
In conclusion, this paper places the jury in the claims-making and social construction process that affects a case outcome. It asks whether the juries recognized the racial implications of the barristers' arguments, and if they did, to what extent their verdict decisions were influenced by the barristers' claims. As human beings, jurors are not dispassionate and unemotional; they as members of society have their own stocks of knowledge, theories and typifications. Studies have shown that although jurors pick up their materials from the trial process and information presented before them, their stand for either a conviction or an acquittal of a defendant is related to their knowledge, preconceived ideas, experiences, moral beliefs and personal attitudes (Bankowski 1988; Marshall 1975; McCabe and Purves 1974; Barber and Gordon 1976), their common-sense which they are expected to exercise and even their personal opinions of the prosecution, the defence, the judge and the witnesses (see Barber and Gordon 1976).
Drug cases appeared inconsistent with a plurality of interpretations given to the same condition, yet the juries filtered out the ambiguities and that which initially appeared amorphous and lacked clarity was eventually `made sense of' and shaped into a definite construct. Jury transformation of an inconsistent phenomenon into a `fact' did not develop in a vacuum but was influenced by their exposure to barristers' claims as they were put before them in open court. Events leading to a defendant's arrest and prosecution took place outside the courtroom and what juries were introduced to is described by Frank (1949: 37) as `second-hand reports of the facts'. In effect, if claims are placed within a social context of knowledge, stereotypes and similar elements, jurors are exposed to them Jurors, drawn from different ranks of society, have no legal training and as Bennet and Feldman argue:
If trials make sense to untrained participants, there must be some implicit framework of social judgements that people bring into the courtroom from everyday life. Such a framework would have to be shared by citizen participants and legal professionals alike. (1981: 3)
The specific categorization of black defendants into images of socio-economic deprivation, crime, violence, rudeness and sexuality added significant strength to the prosecution's responsibility to persuade the jury to convict the defendants. McCabe (1975) has noted that jurors' moral assessment of defendants form a great part of their discussions during deliberation. Working on a jury's emotions was a vital tool for the defence. Jurors have also been said to allow their sympathy for defence witnesses to sway them very firmly against a clear assessment of the evidence as it is presented before them (see Barber and Gordon 1976). The black defendant who was physically and verbally abused by the police and the black defendant who was subjected to unnecessary police suspicion were themes represented by the defence in racial symbols in order to persuade the jury to reach a not guilty verdict.
In relation to the jury verdicts, a higher proportion of blacks than whites were found guilty by the jury irrespective of any similarities in drug cases involving the two groups. It may be that the extent to which juries' different or similar definitions of cases are influenced by subjective factors and legal principles amounting to a final decision cohere with what and how information is presented before them by the prosecution and the defence. But due to the legal restrictions on speaking with jurors, this assessment must remain as speculation, so caution must, therefore, be exercised in drawing any definite conclusions that point the jury in favour of the prosecution or the defence.
The findings of this study, however, show that the processes producing criminal statistics are not fixed and mechanical phenomena. Accepting criminal statistics as an indication of criminality obscures the subjective influences in the criminal justice process as a whole, thereby projecting a robotic image of the system. While addressing the facts is vital, how the criminal justice process affects those facts is not to be taken for granted. Studies of race and sentencing, for example, have looked at substantial inventories of variables such as plea status, age and nature of offence, and subsequently revealed the likelihood by which each of the variables influence the court disposal of defendants based on race. These analyses have remained important to our understanding of the over-representation of black people in the criminal statistics. Notwithstanding that, the outcome of a case before sentencing is not mechanically determined. This article represents an understanding of the role of the trial process vis-a-vis the production of events which subsequently create criminal statistics. In so doing, it has shown how the conflicting accounts of black people, crime and criminal justice were significant and linked systematically to the trial process. Although the claims-making process took place within the framework of a situational context, barristers' rhetoric reflected and reproduced the picture of the wider society. Barristers' discourse entailed the perpetuation of knowledge and beliefs about race, deprivation, crime and drugs; it involved the solidification of images of race, sexuality and violence; it meant the propagation of allegations of police use of racist language, police brutality, police indiscriminate suspicion and harassment of black people.
The approach adopted in this study sheds light on how the disproportionate presence of black people in the criminal statistics could emerge from a process that seemingly places black defendants in a position where they are more likely to be convicted.
(1) Refers to people of African and Afro-Caribbean origin.
(2) The disproportion in the prison population is partly due to the high proportion of foreign nationals sentenced for drug offences (Home Office 1993, 1994).
(3) This has also been attributed u, alleged racial discrimination faced by black people when their cases appear in court (see NAPO 1989; King and May 1985; Gordon 1983). In Smellie and Crow's (1991) account, black people feel an overall lack of confidence in the court system and see their race as an influence on the way that the courts treat them.
(4) Evidence from studies of race and sentencing has contradicted allegations of racicial discrimination (see McConville and Baldwin 1982; Crow and Cove 1984; Moxon 1988).
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|Date:||Sep 22, 1998|
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