Post by Ana Aliverti, Associate Professor at Warwick Law School and Associate Director of Border Criminologies. Ana is on Twitter @a_aliverti. This is the sixth instalment of the themed series on the Border Criminologies September workshop on Race, Migration and Criminal Justice, offering a summary of the main points of Ana's presentation. The papers from this workshop will appear in 2017 in a book edited by Mary Bosworth, Alpa Parmar and Yolanda Vázquez and published by Oxford University Press. You can read the storify story of the #RaceMigCJ workshop here.  

Historically, in Britain, policies and debates on immigration have been preoccupied with identifying the features of the ‘good’ and the ‘bad’ migrant –those who deserved to be welcome, and others who should not be allowed in or be pushed out. The desirability of individuals and national groups has been predominantly assessed against the perceived and idealized (and racialized) qualities of the hosts. ‘Being like us’ in terms of language, ethnicity and cultural background is considered a virtue on its own right and important for social integration and cohesion. Considering the question of belonging in past and contemporary public debates on migration reveals uncharted dimensions with regard to Britain’s own perception of itself as an ‘imagined community’ and the social hierarchies that transpire from it. It can also help us understand how the law and its operation uphold these hierarchies.

In my presentation at September’s workshop on ‘Criminal Justice, Race and Migration’ in Oxford I explored how conceptions of belonging and national identity are articulated in criminal litigation through the appeal to ‘cultural difference’ by court participants. I draw on interviews with court staff and practitioners conducted under my recent project on ‘Foreign nationals before the criminal courts’, and reported Court of Appeal judgments. These decisions may not be paradigmatic of racialized language, treatment and imagery, since they are often polished and lawyers are extra careful about making potentially controversial statements. Yet, as I show, the fact that particularly problematic references to ‘culture’ and ‘cultural difference’ appear in decisions which have gone through multiple filters, evidences how entrenched racialized categories are and how they mutate to avoid the ‘R’ word. As we discussed in the workshop, appealing to ‘culture’ and ‘nationality’ have become ‘safe’ ways to speak about race in public –and as I discuss in the courtroom setting too.

As a number of scholars have argued (Phillips and Webster; Garner), racialized categories and the articulation of racism follow not just bodily traits but also less visible and more subtle markers of difference, such as language, accent, national origin, and cultural and religious difference. Indeed, the black/brown-white binary is insufficient to capture the extent of contemporary racisms as some groups have been stripped off their whiteness and cast as ‘others’ by dint of their class, cultural background and national origin. In Britain ‘culture’ features prominently in racialized stereotypes of deviance and crime by ethnic minorities and foreigners in public discourse amid anti-Muslim sentiments and hostilities towards immigrants. As documented by criminologists (Parmar; Millings), mundane articulations of ‘cultural racism’ have seeped into the criminal justice system.

In my work, I am interested in examining the instrumental use of culture in criminal proceedings. Cultural difference is not a neutral marker to separate out social groups in the courtroom. It is often deployed to explain behavior in relation to specific groups, and is loaded with prejudices and stereotypical representations of racialized minorities. Ascribing ‘bad behavior’ to culture, I argue, conveniently conceals the role of structural social inequalities and of the law in perpetuating the subordination of these groups. Further, these appeals work to mark out undesirable behavior from the terrain of the British nation while helping to craft an image of a unified nation governed by democratic, liberal and civilized values and rules. 

Faced with a highly diverse population and in an attempt to render the court’s clientele intelligible, lawyers and court operators appeal to various tropes to single out groups within the courtroom. ‘Immigrants’ and ‘foreign nationals’ are often identified by their non-English sounding names, accent, and language. In referring to this rather elastic and vague group, lawyers tend to classify their clients by crime types: ‘Romanians’ are pick-pocketers, ‘Poles’ tend to be caught in alcohol-related crimes, ‘Vietnamese’ are marihuana growers, ‘Asians’ are brought in for domestic and sexual violence, and so on.

In aiding this classificatory work, court operators often resort to longstanding racial and gender stereotypes about ethnic minorities. One of the solicitors I interviewed explained that one of the most challenging aspects of representing ‘foreigners’ is the ‘cultural clashes’ that they experience between the prevailing British rules and values and those of their home countries. As he elaborates:

Some people when they come to the United Kingdom, foreign nationals, they bring with them their state of mind or the way of thinking they would back in their own country, what seems normal to them is very different here. I have had people say to me in the past “we have to survive and we have to do what we can to survive, including stealing” which is obviously not the rule here. It seems to be ingrained into some people, the way they think.’

The notion of cultural difference to single out court participants from ethnic minority background and to explain crime among them surfaces in some court cases, albeit in subtle ways. In identifying the characteristics of the ‘foreign culture’ that get picked up by court operators, gender stereotypes play an important role. In the case of men, culture works to exacerbate and condone their violent, hyper-masculine and sexual behaviour. For women, their cultural background is brought up to explain their passivity, lack of agency and propensity to be manipulated by male relatives.

The appeal to culture is not random. Cultural difference is brought up in court in relation to certain individuals and groups. Usually it is considered relevant only to those perceived to be different from the dominant majority; those ‘outsiders’, who are not ‘our people’, by virtue of their national origin, ethnicity, or ancestry. It is also more frequently pondered in cases involving intimate matters, like interpersonal and sexual violence within the family. In one such case, R v MM [2011] EWCA Crim 937, the applicant and complainant –a married couple- were Pakistani nationals. When the applicant obtained a highly skilled visa, they settled in the UK. His wife and their two children had no independent immigration status. The complainant filed a claim against her husband for rape and indecent assault. In trying to assert her credibility as witness, the prosecution justified her late reporting and lack of resistance to her husband sexual violence because ‘it was culturally unacceptable’ to ventilate these marital matters and because ‘her culture required her to submit’.

In another case involving a man –presumably non-white, Muslim and non-British- convicted for sexually assaulting a woman –who was apparently white and British, a pre-sentence report noted ‘[this man’s] attitude towards English girls appeared to have resulted in a sense of entitlement to act as he did... He did not understand English culture, despite having lived here for a number of years’, speculating that there was a ‘racial element’ to the offence (R v Juned Ahmed [2011] EWCA Crim 775). The court agreed with that assessment.

Although English criminal courts are reluctant to allow ‘cultural evidence’ and no cultural defence to criminal liability has been formally recognized in English criminal law, information about the cultural background of defendants and witnesses from ethnic minorities is often conveyed to court in troubling ways. Since this is often done by lawyers, probation officers and pseudo-experts who are not trained to offer this expertise, their characterizations of non-white and non-British participants in cultural terms risk perpetuating damaging stereotypes about certain groups, especially when this othering process is left unchallenged in court. 

The currency of these cultural stereotypes and the fact that they sometimes go undisputed in criminal litigation provide evidence of the deep-rooted racialized hierarchies that exist and they enable us to understand how the law and its operation play a key role in reproducing racial categories. In the chapter I am writing for the collective volume, I am keen to explore how ideas about national identity, belonging and citizenship are articulated through the reference to values and norms in court cases as a way to delimit the borders of Britain as an ‘imagined community’. Please get in touch with your comments!

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