Institutional Racism: what racial discrimination by the police looks like, and what to do about it

Unfortunately, racial discrimination is undoubtedly present in the UK Criminal Justice System, and especially within the Metropolitan police. 

In 1999 Sir William MacPherson published the final report of his investigation into the police response to the murder of Stephen Lawrence. Sir William MacPherson found clear evidence of institutional racism in the Metropolitan police force. As well as open use of the term “negro” by investigating police officers, MacPherson also found broad evidence of racial stereotypes and prejudices held by police officers which motivated their actions. This inevitably produced discriminatory results. 

This finding was preceded by the Scarman report in 1981. Lord Scarman described the existence of “unwitting” or “unconscious” racism in the upper echelons of many public bodies, and “ill-considered immature and racially prejudiced actions” by individual police officers.

Unfortunately, little has been done to successfully combat the existence of institutional racism within the police force, in the decades since the publication of these damning reports. David Lammy’s 2017 review into the treatment of BAME individuals in the Criminal Justice System (CJS) showed a huge disproportionality in the number of BAME individuals in the CJS with no justification.

Black people are more likely to be stopped and searched than their white counterparts, receive tougher sentences for the same crimes, and are more likely to be perceived as criminals in court, even when they are, in fact, a barrister.

Racial discrimination is present and prevalent in police actions in the UK.

It is important to understand this.

The UK legal definition of racial discrimination is set out in the Equality Act 2010. Under this legislation, discrimination can be direct or indirect.

Direct discrimination occurs when one person is treated worse because of their race. For example, if a police officer was called to an altercation involving three people, one of whom was Black, and they only handcuffed that one person, this could be a case of direct discrimination.

Indirect discrimination occurs when a person does something which seems neutral, but which actually has a worse impact on someone because of their race. For example, if a police officer encountered a group of teenagers with a small amount of a class C drug, they might decide to let everyone off with a warning provided that they had no history of being stopped and searched. However, as Black people are almost ten times more likely to be stopped and searched, this would indirectly discriminate against any Black teenagers in that group. This can refer to an individual action by a police officer, or an entire police policy.

The Equality Act also creates the offences of harassment and victimisation.

Harassment occurs when someone makes another person feel humiliated, offended or degraded. For example, if a police officer is interacting with two people – one of whom is Black and one of whom is white – and uses racial slurs or is overly aggressive with the Black person then, even if he does not actually arrest or search either, he has racially harassed the Black person.

The offence of victimisation occurs when one person is treated badly because they have made a complaint of racial discrimination. For example, if someone is making a complaint against a police officer, and then that officer (or others) starts pulling the person over more often and generally being more aggressive, then they are victimising that person.

It should be noted that discrimination is different to racially aggravated crime or “hate crime”. Hate crimes occur when someone does something which is illegal in and of itself (e.g. assaults someone or threatens them) and was motivated to do this due to someone’s race or religion. This is a different area of law.

The police fall under the “Public Sector Equality Duty” (PSED). This is created by the Equality Act 2010 and it requires public bodies to consider how their decisions and policies affect people with different protected characteristics, one of which is race. The police force are a public body and their officers have to uphold the same duty.

The PSED doesn’t just require officers to eliminate unlawful discrimination, they are also required to foster good relations. So, it is not simply that police officers are not allowed to discriminate, they must also work well with relevant communities. While we are discussing Black, Brown and Racialised Groups at present, this is also relevant for any of the other protected characteristics.

Fostering good relations could also be termed “community policing”. The police are expected to work alongside communities and groups in order to prevent crime. Unfortunately, time and time again, it has been shown that the police do not do this when it comes to Black, Brown and Racialised Groups.

When the police discriminate against an individual or a community, either directly or indirectly, they have breached their duty under the Equality Act.

A key element of investigating whether an action is discriminatory is ‘comparing like with like’. This means that discrimination will be most clear when you compare two situations which are the same except for the race of the people involved. For example, if two people were stopped and searched in similar circumstances, but one was Black and one was white, then any differences in how they were treated would potentially show discrimination. If the Black person was handcuffed but the white person wasn’t, this could be direct discrimination.

Obviously, the police officer may deny discriminating on the basis of race. They may even honestly believe that they were not. However, legally you do not need to show intent. It is accepted that prejudice can be unconscious, and that racists can simply lie about their lack of prejudice. Therefore, you do not need to show that the police officer is explicitly racist or that they specifically penalised you due to your race. If it is clear that you were treated differently, and the only relevant difference seems to be your race, this is enough to show potential discrimination. The police would then have to justify their actions.

Importantly, it does not matter if the police officer involved is also Black, Brown or a member of another Racialised Group. The effect of the discrimination is what is important, not the person who did it. It is accepted that prejudice can be unconscious, can stretch across racial lines and may be due to the policies of the force rather than the decisions of the officer.

If you believe that a police officer, or a policy enacted by the police force, has discriminated against you directly or indirectly, then you can bring a complaint against the police. See our Policing the Police article to understand how to start the process.

Complaints can be important to show the police force that the issue exists, that you are aware of it and that they should hold the officer to account. In some cases, people might want to take the police to court instead, to get a more public admission of liability and potentially compensation.

If you are considering bringing a discrimination claim to court it is important to note two things:

1. The case must be brought to the court within 6 months of the event (this is known as the limitation period) – you will therefore need to approach a solicitor with experience of discrimination claims as soon as possible to discuss a potential case.
2. The compensation value for the injury to feelings with discrimination causes can be up to £9,000 for most offences, and up to £45,000 for only the most serious and drawn out offences – this is likely to be less than your legal costs, and so you will want to seriously discuss the merits vs the costs with your solicitor. You can generally claim your legal costs back from the other side if your claim is successful.