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josephchiffers

DOES THE UK HAVE A TWO-TIER CRIMINAL JUSTICE SYSTEM AND IF SO, WHY? BY JOSEPH CHIFFERS

Updated: Sep 21

Introduction


The allegation that the UK is implementing a two-tier criminal justice system has recently gained prominence.  The meaning of the phrase ‘two tier’, appears to be that the criminal justice system is biased against the native population and/or those on the right of the political spectrum. 


Such allegations are being made following the state’s response to riots in several parts of the county.  These riots followed the killings of young children and serious wounding of others in Southport, allegedly by an individual named Axel Muganwa Rudakubana.  This individual has been charged with murder and attempted murder.  The events took place in August 2024.     


As the suspect was under 17 years-old at the time of the incident, he could not be named prior to a Court order.  This led to speculation about his racial and religious background, along with the circulation of false assertions.  It transpired that he is a black male whose parents emigrated from Rwanda.  So far as I am aware his religion (if any) at time of the offence is not yet known, although he was involved with his local Christian Church as a young child.  The proceedings are sub-judice and so I will make no further comment about them.


Returning to the question posed in the title, as far as I know there is no data on the political sympathies of persons who encounter the criminal justice system.  There have been statistics published on race and crime, but these would make it difficult to draw inferences of bias. Firstly, statistics do not disclose the circumstances of each case.   Secondly, the same data can prima facie support contradictory conclusions. 


For instance, I recall that when conviction statistics showed a lower conviction rate against ethnic minorities, this was used to argue that weaker prosecutions were brought against them.  The same data could be used to argue that the CPS are less willing to prosecute ethnic minorities. Indeed, had there been a higher conviction rate against ethnic minorities, I have no doubt this would have been used to support allegations of ‘institutional racism’.


For the reasons given above and at the risk of deterring the reader from finishing this article, it is not possible in my view to provide a definitive answer to the question posed in the title.  Nonetheless, as I will argue below, there are interesting observations that can be made concerning political bias in the criminal justice system and why this might be the case.


Possible examples of bias


The largely unwritten constitution of the United Kingdom provides for what is known as the ‘separation of powers’.  In other words, the justice system, i.e. the Police, CPS and the Judiciary, should operate independently of the Government.  Whilst the Home Office (led by the Home Secretary) is responsible for overseeing policing, the Police are supposed to be operationally independent from this political department.  Indeed, the concept of Peel policing, provides for politically neutral policing, namely to police ‘without fear or favour’. 


Therefore, the question for this article, is not whether politicians are biased[1], but whether the criminal justice system, which is supposed to be impartial, is biased.    


When I consider the sentences reported in the media for different crimes, I can understand why people would allege that there is a two-tier criminal justice system.  However, comparing the sentences of different offenders to show that the criminal justice system is biased, is fraught with difficulty.  That is not to say it couldn’t be done with a sophisticated methodology, but the often-superficial comparisons made in the media are insufficient; they rarely examine the sentencing remarks in detail or consider how the sentencing guidelines have been applied.  There have been complaints about the sentences passed for non-violent offences related to social media use, compared to those passed for violent offences. 


However, in my view the main question this raises, is why we have so called hate speech offences? One should also bear in mind that sentences are often increased in response to large scale rioting to create a deterrent, as they were in 2011.  I have not attempted a comparison between the sentences passed after the 2011 riots and the 2024 riots.


A better method for establishing bias, is to simply find explicit expressions of bias within the criminal justice system.          


Considering firstly the Police, during the Black Lives Matter protests several police officers were observed ‘taking the knee’.  The Metropolitan Police gave officers a discretion on whether to take the knee.[2]    


Black Lives Matter was and is a political organisation that espouses a political ideology.  Expressing support for a political organisation is the antithesis of political neutrality.  If one were to respond by stating that these gestures were untypical and thus not representative of the Police as a whole, my rejoinder would be to ask whether police officers have ever been observed showing support for right wing causes in their capacity as police officers? 


The idea of police officers performing and being permitted to perform, Roman or Nazi salutes is laughable for its implausibility.  If one were to argue that the two gestures are not morally equal, this would involve judgements that cannot be politically neutral.       


There are also examples of the Police demonstrating support for ‘pride’, which I would argue is a political movement, or at least represents a political ideology.   


With respect to the judiciary, the following is an example of a judge expressing a political view during her sentencing remarks:


“You show this hatred by publicly directing abusive threats at others which is a criminal offence in this multi- racial society we are lucky enough to live in.”[3]


I am not suggesting that the judge failed to follow the law, but this is undeniably a political opinion being expressed.  Whilst this statement from a judge could be regarded as untypical, there are no examples of a judge expressing the opposite opinion and one can imagine the opprobrium and sanctions that would follow, if they did.


The above statement by the judge, effectively expresses a view that is interwoven within the fabric of the state, including by being officially endorsed by the legal system; agreement with this view appears to be a pre-requisite for becoming a King’s Counsel[4], judicial appointment[5] and is (in effect) being proposed as a mandatory view for barristers[6].  Consequently, it is perhaps inevitable that such a view will be adopted by the judiciary in their capacity as such[7].    


Despite the warning I gave earlier, I am going to provide two examples that could lead one to infer that there is some bias in the criminal justice system against the native population and those on the political right.  I am not stating that these cases prove such bias nor making the assertion myself; obviously one would need to find far more examples to build a case that the criminal justice system is biased.  I merely provide these examples for the reader to consider.  I have selected them in part, because, being older cases, they have not been reported in the media in response to the recent allegations of a two-tier justice. Thus, I am not merely repeating examples that the reader is likely to be familiar with.    


The first case relates to the sentence of a judge passed in 2011, see HERE.  The Defendants were Somali Muslims and the victim was a white British female.  The Defendants attacked the victim, kicking her in the head whilst she was on the floor and according to the victim, shouted ‘kill the white slag’.       


I have been unable to find the sentencing remarks by the judge and thus cannot reach any firm conclusions.  In any event, I am not suggesting that the judge failed to follow the law or was guilty of any form of judicial misconduct.     


Nonetheless, I would make the following comments:

1.        As I understand it the offence was not deemed to have been racially motivated or racially aggravated.  This may have been because the Defendants pleaded guilty to the offence but disputed the aforesaid comments that were imputed to them by the victim.  However, given the importance the criminal justice system attaches to racism, one would have expected there to have been a Newton hearing to establish whether the comments were made.  One could infer from this case that the criminal justice system is less concerned with racism against the indigenous population.    

2.        Given that kicks to the head can kill, the sentence seems incredibly lenient. 

3.        The accommodation that was apparently given to the Defendants because they were Muslims who were not used to drinking alcohol, seems remarkable. 

4.        Apparently the judge stated that the Defendants may have felt that they were the victims of unreasonable force by Mr Moore (the victim’s boyfriend) – see HERE[8].  If he made this statement, then it was a remarkable statement to make, when any reasonable observer would conclude that a greater level of force would have been justified – see HERE for the video.  I reiterate that kicks to the head can cause death to the victim.          


The second example I provide is one of politically motivated violence against elected members of the European Parliament.  On 9th June 2009,  Nick Griffin and Andrew Brons, members of the British National Party (BNP), were prevented from holding a press conference following their election to the European Parliament; eggs were thrown at Griffin and Brons and Griffin’s car was kicked and hit with placards[9], see HERE for a video of the attack.              


HERE (from 4.13) is an interview conducted by John Snow.  The interviewee did not deny being the “organiser of the egg attack” when this was put to him at the beginning of the interview.  My interpretation of the interview, considering in particular, 6.23 and 7.20, is that the interviewee was endorsing violence against the BNP.      


To my knowledge there was never any consideration of the group in question, the UAF, becoming a proscribed organisation or of charges being brought in relation to the attack.  This is despite the attack being captured on video and someone who appeared to be a senior member of the UAF, publicly endorsing political violence against the BNP.  The website for Unite Against Fascism (UAF)[10] no longer exists but I recall the former Prime Minister David Cameron being listed as a supporter and this is referred to by other sources. 


A comprehensive and objective comparison of the state’s response to violence perpetrated by both right and left-wing groups may yield interesting results. 


Reasons for bias


The publication of the Macpherson Report was a pivotal moment for the criminal justice system, with the report concluding that the Metropolitan Police were ‘institutionally racist’.  The report also sought to suggest that institutional racism was prevalent in wider society and other institutions.     


The following paper, see HERE, provides an interesting analysis of the Macpherson Report. Some highlights of which are below:

(1)     The panel sought to extract apologies from the witnesses[11],with the lay adviser to the panel, activist Richard Stone, inviting the then Commissioner of the Metropolitan Police to confess[12].

(2)     It is apparent that ‘institutional racism’ in the context of the report, does not mean that there are practices explicitly endorsing racism or racial discrimination.  Nor does it require empirical research to prove its existence.[13]

(3)     Despite the report mentioning that racism should not be inferred merely from widespread incompetence, there was an inference that racism ‘played its part’ in the outcome of the investigation into Mr Lawrence’s murder, based on widespread incompetence.[14]

(4)     In several places the report endorses Marxist views on crime.[15] 


Therefore, it may be that police officers took the knee to compensate for the supposed past racism of their organisation.  Further, the involvement of Neo-Marxist inspired ‘anti-racism’ in the Macpherson report is likely to be a factor, with this ideology governing ‘diversity’ training and targets, which have been implemented following the Macpherson Report.       


Liberalism


To some extent, the possible bias that I have explored above, may be explained by ignorance.  There is an observable tendency for those whom I shall call ‘liberals’ to act as if their political views transcend politics and thus should not be treated as mere political opinions.  This may explain why police officers feel they can ‘take the knee’, i.e. they do not view the gesture as political, even if it shows support for the political organisation ‘Black Lives Matter’.   The same may also apply to a judge stating in her capacity as a judge that ‘we are lucky’ to live in a multi-racial society, i.e. she does not view this as a political comment even though the multi-racial society was brought about by political policies.  I will explore below why this might be  the case, after I have defined the term liberal, for the purposes of this article.


I use the term ‘liberal’ to describe those who would regard themselves as anti-racists and supporters of ‘diversity’.  Such persons would usually oppose significant immigration control and nationalism.  They tend to view themselves as part of humanity rather than any nation.  In many ways they are not liberal and can often support illiberal polices; I will explore this paradox below.  They are liberal however, in the sense that they believe people can liberate themselves from ties to nation, religion, family[16] and perhaps even biological sex.  When I use the term ‘liberal’, ‘liberalism’ or ‘liberal state’ below, I am referring to this broad description.  All modern governments in the UK (and most modern Western Governments) have been in practice, liberal in the above sense.  Whilst they may make statements that are contrary to liberal ideology, most policies only go in the direction of further liberalism.  For instance, despite governments making certain noises about controlling or reducing immigration, they ultimately choose not to do so, and immigration continues to increase.                 


The tendency I described in the first paragraph of this section, can be partly explained by applying the philosophy of Carl Schmitt expressed in his essay ‘the Concept of the Political’.  Schmitt defines politics as the distinction between ‘friends’ and ‘enemies’, with the possibility of deadly conflict between the two; politically enemies are often regarded or described as morally repugnant or aesthetically repulsive to make it easier for them to be regarded as such, but this is not a pre-requisite for the definition[17].


Liberalism seeks to abolish the political in the Schmittian sense, but it only manages to mask it.[18]  Whilst liberals and liberal states may recognise that they have enemies in the form of individuals or specific groups who oppose the idea of the liberal state, they regard such persons’ as atavistic and as a collective aberration.  This can be illustrated by the quotation below:


  “The end of history will be a very sad time. The struggle for recognition, the willingness to risk one's life a purely abstract goal, the worldwide ideological struggle that called forth daring, courage, imagination, and idealism, will be replaced by economic calculation, the endless solving of technical problems, environmental concerns, and the satisfaction of sophisticated consumer demands.”[19]


This mindset can be observed in the responses to terrorist attacks, which may to some extent, have been managed by the state i.e. there may have been attempts to distract the public from considering a solution and whether particular groups of persons are inherently dangerous to one another.[20]  In the response to the 2015 Paris terrorist attacks, the song ‘Imagine’ by John Lennon was played, which includes the lyrics ‘nothing to kill or die for’.  I am not sure if this was meant to be an appeal for all of humanity to decide that there is nothing to kill or die for, or whether there was simply no appreciation of the irony that the terrorists were prepared to die for their religious views and to kill indiscriminately.    


Returning to the question posed in the first paragraph of this section, it may be that liberals do not recognise their political views as political because they lack a concept of the political in a Schmittian sense, i.e. liberals view large scale conflict between different religions, ethnic groups and nationalities as inherently unlikely, because these identities can be subordinated to the liberal ideal.  This ideal involves citizens being primarily motivated by economic gain.   This is also why they often support open borders.  Overtures to support diversity and to oppose racism in their view transcend the political, even though in reality they are within the realm of the political.


Therefore, Schmitt’s philosophy may be able to partly explain the ignorance or the blind spot, I have described above.  With respect to allegations of two-tier justice, it may also explain the  harshness with which those on the political right, as the true enemies of liberalism, are arguably treated.     


Schmitt argues that paradoxically, the friend-enemy distinction is intensified between the liberal state and its enemies.  This is because liberal states have made economics political (in my view it is also because liberal states claim moral authority on the nebulous premise of ‘human-rights' and thus they, in a sense, regard their enemies as outside of humanity[21]):


“The adversary is thus no longer called an enemy but a disturber of peace and is thereby designated to be an outlaw of humanity. A war waged to protect or expand economic power must, with the aid of propaganda, turn into a crusade and into the last war of humanity”[22]


Schmitt was referring to inter-state conflict, but this observation can be applied to intra-state conflict between the governments of liberal states and their enemies.  For example, one can observe liberal governments, seeking to harm dissidents financially, restricting political speech that does not incite violence and seeking to ban opposition political parties.  


Conclusion


I do not express a firm on whether the UK has a two-tier criminal justice system, but there are certainly examples of the criminal justice system becoming politicised.  I do not claim to be able to offer a complete explanation for this and in any event, it is likely that the explanation would involve multiple and complex causes[23]


However, I have sought to offer some insights into why there appear to be instances of the criminal justice system becoming politicised.  In relation to the police, the legacy of the Macpherson report is a significant factor. 


Additionally, there may be something inherent to liberalism, which fails to acknowledge the political (in the sense that Schmitt described it, as explained above) and which regards, probably unconsciously, certain dissidents as outside of humanity and as vestiges of a world that should no longer exist.   This may lead to bias and harshness towards the political opponents of liberalism.


Notes


[1] If one compares the reaction of Kier Starmer to the Southport riots, with his reaction to the Black Lives Matter riots, it is obvious where his sympathy lies, but that is not an issue for this article.    

[5] HERE - e.g. pdf 15.  The requirement for ordinary judges to support the ideology of diversity does not seem to be as explicit as it is for KCS (it refers to being aware of diverse communities (HERE - box under para 85) rather than supporting a particular ideology, although I imagine this could mean something different in practice), although leadership judges must support this ideology.   

[6] HERE     

[7] I appreciate that there is perhaps a subtle difference between the statement the judge made in her sentencing remarks and diversity initiatives, with the former delighting in the existence of a multi racial society and the latter pursuing measures that ensure that institutions reflect a multi-racial society; however, it is implicit in these measures and is sometimes stated explicitly that diversity is a good thing.      

[8] I am not sure if he was stating that they were justified in feeling this way, but if it was a relevant factor in their sentencing then this is implied.  

[10] This group is affiliated with the Social Workers Party (SWP).  My interpretation of their policies is that they are fundamentally opposed to Parliamentary democracy - HERE, which essentially was the allegation the interviewee was levelling against the BNP.    

[11] See pp11-20

[12] P28

[13] E.g. see p109

[14] Pp91-92

[15] E.g. p129

[16] E.g. by supporting easy divorce, liberal abortion laws and condemning as bigoted any criticism of sexual permissiveness 

[17] C Schmitt ‘The Concept of the Political’ 1932 ‘Chicago University Press’ 2007 p26-27

[18] Ibid L Straus Notes on Schmitt p100 note 4 and Schmitt pp64-65 & 69-70

[22] Op Cite p79  See also p64 where Schmitt refers to anarchism by analogy.  To the anarchist no man is evil, except the man who claims that men are naturally evil.   

[23] There are simpler explanations not considered in this article as they are obvious and/or have been considered many times.  For instance, with respect to bias and failing to recognise bias, the psychological flaws of ‘liberals’, such as projection, a lack of humility and hypocrisy.  Further, with regards to the treatment of dissidents, global capital opposes borders and traditional families as obstacles to progress and will ruthlessly suppress those who stand in its way – see Schmitt Op Cite 79.       

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