The Culture-Responsibility Relationship in the Criminal Law of England and Wales

The Culture-Responsibility Relationship in the Criminal Law of England

and Wales

1.1 Introduction

The research question at the heart of the thesis asks ‘how should the criminal

law of England and Wales respond to the relationship between culture and

individual legal responsibility?’ The question arises from the hypothesis that

there is an absence of consistent and coherent engagement between the

concepts of culture and legal responsibility in the practice of our criminal law

and at policy level. There is, arguably, a relationship or at least the perception of

a relationship between culture and responsibility and throughout the thesis this

will be called the ‘cultureresponsibility relationship’. The existence of this

relationship needs to be firmly recognised, its essence understood and its

importance for contemporary criminal justice established. The thesis can be

seen as a case study that problematises the culture-responsibility relationship

within the wider socio-legal context of the failure of the criminal law to embrace

the presence of cultural diversity both historically and in the early years of the

twenty first century and within the still

1 Kwame Anthony Appiah, ‘There is no Such Thing as Western Civilisation’ The Guardian

(London, 9 Nov 2016) <https://www.theguardian.com/world/2016/nov/09/western -

civilisation appiah - reith - lecture > accessed 28th September 2018.

Appiah Writing in The Guardian on 9th November 2016 following the 2016 Reith Lectures on

‘Mistaken Identities’. This piece is based on the 4th lecture on ‘Culture’.

wider political realm of addressing the tension that cultural diversity brings to a

liberal democracy under the Rule of Law.

With a view to achieving the fullest possible understanding of the

cultureresponsibility relationship within this wider domain, this thesis looks to a

number of sources. As well as law, political theory on multiculturalism, social,

political and legal theory concerned with justice and the disciplines of

anthropology, sociology, philosophy and criminology are all drawn upon. This is

not a new approach and there is a small body of academic literature that

addresses the difficult intersection of criminal law and cultural diversity in this

way. This thesis takes existing work a step further, developing a nuanced and

specific understanding of the culture-responsibility relationship and undertaking

a systematic review of the practice and policy of the criminal law and criminal

justice system in England and Wales and of multiculturalism in the United

Kingdom with a view to suggesting a framework for the ongoing development of

that newly refined relationship. The thesis therefore adopts a socio-legal and

truly interdisciplinary approach to the research question and means that the

practice based and policy-facing framework suggested in Chapter 5 is

theoretically grounded and roundly considered.

Law and culture are inseparable but a cultural hegemony has been presumed

and, as Cotterrell points out, in the past culture seemed ‘irrelevant’ or

‘unproblematic’ in legal thinking. Multiculturalism has certainly made culture

relevant and arguably problematic and this difficulty has manifested itself most

controversially in the concept of the ‘cultural defence’. Foblets and Renteln

assert that courts worldwide have entertained arguments based on cultural

factors for centuries, but it is generally accepted that there is no recognized

defence based on ‘culture’ in the criminal law of England and Wales. Consider

then these three cases across place and time. Firstly, Mr Purefoy, ‘a man of

perfect honour and humanity’, tried for causing the death of an opponent during

a duel in 1794. Baron Hotham directed the jury, gathered from the duelling

class, to reconcile the facts to their conscience and acquit ‘…though the verdict

may trench upon rules of rigid law, yet the verdict will be lovely in the sight of

God and Man.’ Why? Duels were seen in society as a matter of ‘honour’ and

thus outside the law of murder. This was so despite the clear statement of law

by Judge Foster in 1762 that ‘…deliberate duelling, if death ensueth, is in the

eye of the law murder, for duels are normally founded in deep revenge.’7

Despite over 400 deaths in duelling from 1785-1845 Banks reports that between

1815 and 1845 there were only 11 duelling trials resulting in 7 acquittals, 2

manslaughter convictions (based on provocation) and 2 murder convictions (but

with the capital penalty reduced to 12 months in prison in each case). Colonel

Campbell was the only British duellist convicted of murder and given the death

penalty in the nineteenth century but that is because he behaved with

‘dishonour’ in breaking the rules of the duel. It seems that the duel had its own

laws and its own ‘culture’ and that acting according to that ‘culture’ provided a

sort of ‘cultural defence’ even to the crime of murder. This could be construed

as an early example of the ‘subculture’.

Secondly, the Pinto Case. Three defendants, Angolan immigrants who were

members of a protestant evangelical church and who held a belief in African

cosmology, were convicted of child cruelty (or of aiding and abetting child

cruelty) when a ‘malevolent spirit’ was exorcised from a child at their request.

At trial, the defence called a ‘cultural profiling expert’ from Kings College

London but her evidence was not accepted, the judge saying it looked like a

‘cultural horoscope’. On appeal against sentence the appellants argued that

because the child was possessed by spirits they were not ‘…as culpable as

somebody who perpetrates cruelty deliberately and out of malice, inflicting

violence gratuitously.’ The Court of Appeal accepted that two of the appellants

did hold the ‘deluded belief’ that the child was possessed but said that it was ‘…

necessary to make it clear that such belief provides no mitigation and …does

little to reduce the culpability of the offenders’.11 However, each of the

defendants had their sentences reduced because this was not the ‘worst case

scenario’ of child cruelty.

Thirdly the ‘Pitcairn Case’ where 55 charges of rape, indecent assault and

incest involving girls as young as 12 were brought against 7 men living on the

island of Pitcairn.12 Following the conviction of 6 of the defendants in the

Pitcairn Supreme Court and appeal to the Pitcairn Court of Appeal against

conviction, the Privy Council were asked to make a decision on sovereignty

(and found that the laws of England did extend to Pitcairn).13 It was also asked

to comment on the suggestion that Pitcairn ‘may in some way be an anarchic or

lawless society’ but found that the 1956 Sexual Offences Act had been

promulgated, that Pitcairn was a developed society where ‘…there was never

any contention that the appellants…did not or could not have reasonably known

that the allegations against them constituted serious criminal offending.’ 14 This

was so despite suggestions identified by the Foreign and Commonwealth Office

that ‘… the line of offending that had been revealed was a cultural trait’ and

despite the question throughout each stage of the trial ‘…as to whether

Pitcairn’s cultural particularity and unique isolation were sufficiently recognized.’

15 In the Pitcairn Supreme Court the pre-trial hearing noted ‘…what makes this

pre-trial hearing so distinctive is not only the constitutional importance of the

issues…but the context in which the potential parties live. Pitcairn hosts a

tightly-knit community of inhabitants who, due to population size and the

Island’s remoteness, rely heavily on each other in all of the ways that matter.’16

In other words, the cultural dimension of the

12 The men were convicted in the Pitcairn Islands Supreme Court (Queen v 7 Named Accused

PNSC 1:SC 04-04-19(19 April 2004)) and The Public Defender challenged the jurisdiction of the

UK in the Pitcairn Court of Appeal (Queen v 7 Named Accused [2004] PNCA 1-7 2004 (5 August

2004)) who referred the matter to the Privy Council.

13 Christian and Ors v The Queen [2006] UKPC 47.

14 ibid 118.

15 The Foreign and Commonwealth Office correspondence is referred to by Lord Hope of

Craighead in the Privy Council judgment. Christian and Ors v The Queen [2006] UKPC 47

[50].

The cases are anaylsed in detail by

C O’Cinneide, ‘A Million Mutinies Now: Why Claims of Cultural Uniqueness Cannot be used to

Justify Violations of Basic Human Rights’ in Dawn Oliver (ed),Justice, Legality and the Rule of

Law: Lessons from the Pitcairn Prosecutions (Oxford, Oxford University Press 2009) 137.

16 Queen v 7 Named Accused PNSC 1:SC 04-04-19(19 April 2004) Introduction [5].

trial divided opinion with some attacking the prosecutions as cultural imperialism

and others seeing a need for the sovereign authority to intervene to ‘…redress

barbaric behaviour in the name of human rights, the protection of children and

gender inequality.’ In 2014 similar allegations were made (and dismissed)

against residents of St Helena.

Although centuries or worlds apart (and of course the outcomes in each of

these cases are a product of their historical situation and may have been

decided differently in different times) culture is intrinsically present in each of

these judgments. The disparate outcomes reveal not only an inconsistent

approach towards culture but a more understanding approach where that

culture resonates with or is part of the culture of the majority so that explicit

engagement with the ideas of the ‘minority’ is only identifiable in the cultural

division between ‘us’ and

‘the other’. Nineteenth century British aristocratic duelling is constructed as an

‘honourable’ practice worlds away from the ‘honour’ based violence we

condemn today perhaps because it is much more difficult to understand the

honour of ‘the other’ and the culture of the alien has no place in our own social

and legal understandings. This raises huge questions for fairness and in turn

for justice. In each decision we see a failure to acknowledge a link between

culture and responsibility, but it is there, beneath the surface in the duelling

case where it is recognized as a justification for killing, in the courtroom in the

malevolent spirit case where it is acknowledged but dismissed as irrelevant

and in the public domain in the sexual abuse case where it is disregarded as

abhorrent. Lacey acknowledges this latent existence of culture in the courtroom

in, for example, rape trials where ‘…the defendants beliefs about women’s

sexuality, and about appropriate inference from behaviour, surely count as

deriving from his ‘way of life’.’19 Thus sometimes without even being aware of it,

courts have to contend not only with their own cultural standpoint but with the

culturally embedded beliefs of defendants, even where they do not manifest as

‘other’. The disparate approaches to culture identified in these decisions is

troubling. But the failure of the courts to outwardly acknowledge culture and its

possible relationship with responsibility is more worrying. And the relationship

between law and culture can be confusing. In March 2013 the Law Society

published a Practice Note aimed at high street solicitors on producing wills

under Sharia law. This led to the headline

‘Sharia Law is adopted by Legal Chiefs’, an outrage about the relentless march

of Islamic law and culture into British society and calls for a Select Committee to

look at the extent of Sharia law in Britain.20 Yet there has always been clarity

around the place of Islamic law, with An-Nacim stating that Islamic law cannot

be the state law of any state and that ‘…the religious authority of Islamic law for

Muslims exists outside the framework of state’ and that ‘…compliance with

19 Nicola Lacey, ‘Community, Culture, and Criminalization’ in Will Kymlicka, Claes

Lernestedt and Matt Matravers (eds) Criminal Law and Cultural Diversity (Oxford, Oxford

University Press 2014) 49.

20 The Telegraph 22nd March 2014 ran this headline.

https://www.telegraph.co.uk/news/religion/10716844/Islamic - law - is - adopted - by - British -

legal chiefs.html

Accessed 1st October 2018.

The call for a Select Committee was led by the National Secular Society and the One Law For

All campaign. In May 2016 the Home Office did announce an independent review of the

application of Sharia law. This was led by Mona Siddiqui and the committee reported in

February 2018. The review found that there are between 30 and 85 Sharia Councils in England

and Wales that rule on matters of family law. Their decisions can be discriminatory to women.

The committee recommended that religious marriages need to be undertaken alongside civil

marriages and that over time the use of Sharia councils be reduced. This ties into concerns over

legal pluralism. See

https://www.gov.uk/government/publications/applying - sharia - law - in - england - and -

wales independent - review accessed 1st October 2018.

Islamic law cannot be legal justification for violating state law.’ These concerns

alone go some way towards justifying this analysis of the culture-responsibility

relationship. They begin to highlight some of the challenges inherent within this

complex relationship. Most of all they begin to demonstrate a fear of the

concept of culture, something that we will return to throughout the thesis.

This Chapter continues in section 1.2 by setting out the broad context within

which the research question is situated and clearly setting out the aims and

objectives of the thesis. Section 1.3 introduces the literature associated with

the culture-responsibility relationship and explains why a formal literature review

is not the best approach to scoping the field. Section 1.4 sets out the

methodology and research methods used and section 1.5 sets out a summary

of the arguments and themes running through the thesis.

1.2 Aims and Objectives of Thesis

Successive United Kingdom governments have not formally adopted or

declared a policy of ‘multiculturalism’ yet the term ‘multicultural’ can be used to

describe our contemporary society which comprises an ‘…ethnically diverse

population brought together by post-colonial migration’ and of course by a

variety of other population movements over a long period of time including most

recently migration from the European Union and by those seeking refugee

status or political asylum from across the world. A diverse population brings with

it a diverse array of cultural beliefs and practices. The intersection between

these divergent cultural values is not straightforward and where values and

ideas clash, as they often do, how should a western liberal democracy navigate

its way through the demands of a multicultural population on the one hand and

the preservation of an existing social order under the rule of law on the other?

Political theorists have been considering the tensions inherent in balancing

these competing interests for a long time and this pressing question is attracting

attention at the highest levels of policy making. UNESCO has included the

study of multicultural societies in its MOST Programme because ‘…

multiculturalism embodies the idea of reconciling respect for diversity with

concern for societal cohesion and the promotion of universally shared values

and norms.’ However, the question is pertinent too in the field of criminal law

and criminal justice where new approaches to notions such as rights and

equality challenge our settled understandings of the concepts of fairness and

justice. Yet, as Kymlicka, Lernestedt and Matravers point out, ‘…there is one

particularly important domain of public life where the challenge of cultural

diversity has been underexplored, namely the criminal law.’

To date there have been a few examples of endeavours within the criminal law

and criminal justice system to respond to or at least to recognise these

tensions.

These are discussed in detail in Chapter 3. Specific ‘cultural offences’ have

been created and administrative adjustments have been made in the shape of

allowances for largely uncontroversial cultural practices. In the field of law

reform passing reference has been made to multiculturalism, for example when

the Law Commission considered mixed motives such as honour killing in

excluding ‘a considered desire for revenge’ as a qualifying trigger in the reform

of the law on provocation. The criminal courts too have not shied away entirely

from the influence of multiculturalism as evidenced by a limited judicial

exploration of the interaction between law and culture. As early as 1973 the

House of Lords (in a case involving conspiracy to corrupt morals) stated that ‘…

the jury should be invited, where appropriate, to remember that they live in a

plural society with a tradition of toleration towards minorities and that this

atmosphere of toleration is itself part of public decency.’ It could be argued that

these measures represent a satisfactory response to the demands of a

multicultural society and that the role of the criminal law is indeed to be

reflective and responsive to individual situations as they arise. If these

endeavours are adequate then why look further?

An alternative viewpoint, and one offered here, is that these measures amount

to no more than ad hoc, temporary and reactive solutions to discrete and

distinct problems, addressing only the narrowly defined pressing issues of the

day. Perhaps this is because, following a Critical Legal Studies rationale, there

is a fundamental problem with the law which, in addition to serving the interests

of the powerful, is blinkered to wider contextual issues and merely glosses over

complexity in an attempt to provide a ‘quick fix solution.’29 In a Marxist critique of

the legal system Miliband identifies legal conflicts as ‘problems’ that have to be

‘solved’ on the basis ‘…that conflict does not or need not run very deep.’ Of

course, Miliband is referring to the deeper conflict of domination and subjection

underlying these seemingly superficial legal conflicts and the laws failure to

address it. This failure can be likened to the shortcomings evidenced today in

the approach to the deeper conflict generated by cultural diversity in the twenty

first century. Whilst the measures taken at the interface of law and cultural

diversity may appear to ‘do the job’ in the short term such piecemeal

approaches merely scratch the surface, providing solutions that do not

adequately reflect the complexities of the meaning of ‘multiculturalism’ and its

implications and indeed the meaning of ‘culture’ itself and here once again we

can hypothesise that the criminal law and criminal justice system harbour a fear

of culture. What we need is ‘…a law appropriate for a society of permanent

cultural diversity.’ We need a new approach.

At its most complete this approach would encompass a whole scale review of

the competing issues identifiable at the intersection between the criminal law of

England and Wales and cultural diversity and subject them to a thorough

scrutiny that looks beyond the law itself with a view to achieving what Norrie

refers to as a ‘depth ontology.’ From this understanding we could seek to

formulate a thoroughly considered framework grounded in theory and informed

by empirically gathered evidence from the voices of all across society. We are in

what political philosophers call a ‘post-recognition era’ where we need to move

on from the politics of recognition to acknowledge the difficulties of balancing

the dual demands of accommodation and stability and to call on our resources

including

‘the pacifying power of the law’ to seek and find justice in a culturally diverse

world. This analysis of the culture-responsibility relationship, in searching for an

answer to the research question and in suggesting the ensuing framework for a

way forward, is perhaps a step in bringing this ambitious project to fruition, the

beginning of an answer to Shabani’s widely framed question ‘…how can the

practices of law making help us to confront the challenges of stability and

solidarity in a post recognition era?’

It is also a ‘new approach’ to the development of the criminal law in a

multicultural age in the following ways. As seen above, it moves the culture-

responsibility relationship beyond the black letter of the law and into the socio-

legal and draws together relevant ideas from a number of complementary

disciplines but, more importantly, it calls for a tightly bound analysis and policy

facing development of the culture-responsibility relationship in the following two

ways:

• It places at its heart the relationship between culture and responsibility

and the potential application of that relationship in individual cases

(Chapter 2).

• It seeks to understand and develop that relationship within two distinct

and defined parameters, namely the theory, practice and policy of the

criminal law and criminal justice system of England and Wales (Chapter

3), the social reality and policy of multiculturalism in the United Kingdom

in the early years of the twenty first century (Chapter 4).

• It makes practical recommendations for the place of the culture-

responsibility relationship in the criminal justice system, a forward looking

framework to be seen as a starting point for dialogue about the ongoing

development of that relationship (Chapter 5).

This specifically nuanced culture-responsibility relationship thus becomes a

strong and academically plausible concept, insulated as far as it possibly can

be from the challenges from the theoretical field which seem to come to light

when culture and responsibility are mentioned in the same breath (addressed in

section 2.4) and bolstered by ideas of justice. It is particularly important that the

cultureresponsibility relationship be analysed and moved forward under an

umbrella of legal and political theory which seeks to deepen our understanding

of how justice may be best achieved in this multicultural era. Cotterrell asks ‘…

what general challenges are posed for legal theory…by multiculturalism in

complex western societies today?’ His question can be turned on its head to

ask ‘how can legal (and political) theory help complex western societies in

facing the challenges of multiculturalism?’ Either way, the thesis provides the

opportunity for theory to interact more closely with ideas of culture and

responsibility and the relationship between them. As Cotterrell points out,

culture influences regulation in many legal fields but legal theory has not caught

up with social reality because ‘…modern juristic legal theories have usually

conceptualised laws regulated population as an undifferentiated social field

made up of citizens or subjects assumed to be treated equally by law.’36 But

‘justice’ needs to look further than to the demands of multiculturalism and in

particular we need to be mindful of feminist concerns.

A first step towards justice is to establish an essential distinction between the

culture-responsibility relationship and the concept of the ‘cultural defence’. The

‘cultural defence’ emerged in academic literature in the late 1980’s, allegedly

from a Harvard law student’s essay. By the mid 1990’s a body of largely feminist

work had emerged highlighting the potential for injustice where accommodation

is made on the basis of culture. The concept of the ‘cultural defence’ still has

supporters but it has detractors too and arguments against it (discussed in

section 2.4) remain in the ether influencing attitudes and perhaps helping to

reinforce a negativity towards the culture-responsibility relationship. Part of the

problem with the ‘cultural defence’ is that of time. It emerged when

understandings of multiculturalism looked very different to the way they do

today. The social reality of twenty first century multiculturalism in the United

Kingdom is examined in section 4.2. Throughout the literature on the ‘cultural

defence’ we see references to defendants as ‘members’ of groups and to

‘cultural practices’ and degrees of acculturation. But for our purposes whilst

culture is, for the sake of argument ‘…a shared vocabulary of tradition and

convention’, it is only, as we will see in Chapter 2, the contribution of that shared

meaning to personal identity in individual cases that can be considered in

relation to ‘defence’. Another part is place. In legal discourse the ‘cultural

defence’ relies on a handful of largely US sensationalist and well documented

cases that undermine the subtleties of the culture-responsibility relationship and

is grounded largely in the idea of cultural rights and even cultural protection

without really considering the individual defendant and the potential effect of

culture upon him.38 In other words, the

‘cultural defence’ does not enhance the quest for what Lernestedt calls ‘true

blameworthiness’.39

The main difficulty, however, with the ‘cultural defence’ is that of definition. What

is meant by ‘defence’? The terms ‘defence’ and ‘evidence’ are used

38 These are, for example

•People v Dong Lu Chen (1989) No. 87-7774(N.Y. Supreme Court) where Chen killed his

wife after learning of her adultery, his defence being that he was driven by culture to

behave in this way.

•People v Kong Moua (1985) No. 315972 (Fresno County Superior Court) where Moua

pleaded culture as an excuse for the kidnap and rape of his bride in the form of the

Laotian practice of zij poj niam or ‘marriage by capture’.

•People v Tou Moua (1985) No. 328106 (Fresno County Superior Court).

•People v Fumiko Kimura (1985) No. A-091133 (Santa Monica Superior Court ) a case

involving parent-child suicide where a Japanese mother attempted to drown herself and

her two daughters because of the shame of adultery in Japanese culture.

39 Kymlicka, Lernestedt and Matravers (n 24) 26.

interchangeably within the literature with the former including anything on a

spectrum from complete acquittal to mitigation in sentencing. Definition has

become confused with purpose too, with, for example, Renteln claiming that ‘…

a cultural defence is necessary to ensure that cultural evidence is considered by

the courts.’ Even where commentators take a more legalistic approach in

suggesting definition this may not always bear the scrutiny of clear legal

thinking. And so the culture-responsibility relationship must be divorced from the

‘cultural defence’. Despite the lack of definition and disagreement around

purpose, those addressing this issue of culture in the criminal law call for all

actors within the legal system to consider cultural information with greater

sophistication and to recognise ‘…the need to set standards for incorporating

cultural information in judicial proceedings.’43 This, of course, is absolutely

endorsed here.

Returning to the first of the three ways in which this thesis represents a new

approach, we need to explore further the idea of relationship.

Relationship in Individual Cases: The most important word in the thesis is

relationship because it is argued from the outset that culture can only have a

bearing on legal responsibility where a relationship between that responsibility

and culture is established. Whilst legal theorists have offered general theories of

responsibility in abundance none seem to have picked up on the possibility of a

relationship between culture and responsibility. 44 Tadros, writing in 2013,

obliquely recognises this omission and comes close to engaging with

multiculturalism in stating:

‘One noteworthy feature of much of the recent work done in the

philosophy of criminal justice is that relatively little special attention has

been given to the idea that citizens in a liberal political regime will have

divergent moral conceptions many of which it will be reasonable to

believe…one important question for political theorists is how those with

divergent views can be expected to live together in a way that is stable

and respectful of each other.’45

And yet, Tadros himself does not pursue such ‘divergent moral conceptions’ in

the context of culture or indeed go on to engage with culture in any guise.

Political philosophers, on the other hand, have considered the relationship

between culture and responsibility but generally at a more abstracted group

level leading Kymlicka to demand that they ‘…should contemplate the individual

more carefully.’46 And individual too is an extremely important word in the thesis.

There is an argument that the endeavours of the criminal law to respond to or

recognise the tensions in our multicultural world have traditionally revolved

around ‘groups’ (although in England and Wales this has been perhaps more of

a theoretically driven aspiration than a reality because as we will see in Chapter

3 there has been minimal engagement between the criminal law in this

jurisdiction and

44 The following textbooks, all broadly on the topic of legal responsibility and all written within

the last 11 years, were chosen randomly and checked for references to culture and

multiculturalism and not one of them addressed these issues:

Nicola Lacey, In Search of Criminal Responsibility: Ideas, Interests and Institutions (Oxford,

Oxford University Press 2016).

Antony Duff, (2007) Answering for Crime: Responsibility in the Criminal Law (Oxford, Hart

Publishing 2007).

Michael Moore, Placing Blame: A Theory of the Criminal Law (Oxford, Oxford University Press

2010).

Victor Tadros, Criminal Responsibility (Oxford, Oxford University Press 2007).

45 Tadros, V. (2013) ‘Introduction: Political Philosophy and Criminal Justice’ Criminal Law and

Philosophy 7(2) 179-184 179.

46 Kymlicka, Lernestedt and Matravers (n 24) 6.

culture). Kymlicka, in earlier work, argues that there is an obligation on states to

provide ‘cultural freedom’ for groups because toleration alone is ‘benign neglect’

and this freedom comes through states providing special compensation for

‘minority cultural groups’. Kymlicka has refined his work to accept that at times

cultural rights may infringe upon individual autonomy and concedes that as

ideas about what culture is have developed the earlier body of thought on

multiculturalism, embedded in the idea of the group, can be challenged. This

thesis is therefore clear from the outset that the culture-responsibility

relationship is merely a possibility, a paradigm to be considered and applied if

and where appropriate in each unique and individual case. It is not a right; it is

not of universal application although it is universally available. And it is very

much something that needs to work inside the criminal law of England and

Wales, an important factor that should allay fears of legal pluralism, something

that we will return to in section 2.4. In this way it is a challenge but arguably, as

Lacey says, it is ‘…analytically indistinguishable from that of how the criminal

law should respond to the problem of any situational differences’ and therefore

not something to be feared but a tool for justice in a multicultural world in

deserving cases.

Two Distinct and Defined Parameters: Secondly, the new approach situates

the culture-responsibility relationship within two distinct and defined parameters

and the selection of these needs explanation. Much of the literature surrounding

the ‘cultural defence’ is generic rather than jurisdiction specific. However, if a

system of law is to respond adequately to the demands of a multicultural

population and engage meaningfully with the concept of culture then any

suggested framework for a way forward needs to be offered within the

constraints of that specific legal system. The criminal law of England and Wales

has features that are deeply entrenched and, being (arguably) naturally averse

to change and reform we need to consider how far these standards can be

expected to shift.

How far, for example can the standard of ‘reasonableness’ move? Norrie writes

of The Mysterious Case of the Reasonable Glue Sniffer advancing the idea that

moral contextualism (which could encompass culture) is a more meaningful

place from which to asses ‘reasonableness’ than orthodox subjectivism, yet it is

perhaps difficult to imagine a wholescale re-evaluation of one of the standards

that has underpinned our criminal law for centuries. We therefore need to

consider the culture-responsibility relationship within the confines of the

foundations of the criminal law of England and Wales (remaining aware of the

restrictions that such principles, values and systemic factors impose yet being

open minded to challenging them, to pushing the boundaries) and the living

practice and policy of the criminal law and criminal justice system.

As regards the specificities of multiculturalism and cultural diversity within the

United Kingdom’s socio-political system, this is ever changing but is a result of

twentieth and twenty first century migration and an ensuing immigrant and now

migrant population. Our response must reflect this. Things look very different in

jurisdictions with an indigenous minority population or in a post-colonial state

where redress is sought or offered for the injustices of the past. Our response

must be socially and politically specific, taking account too of the difficulties

identified in section 2.4 as being inherent within the culture-responsibility

relationship, in particular the dangers of essentialising and its implications for

agency and free will, competing claims of universalism and cultural or moral

relativism and claims of the prioritisation of one cultural group over women or

over another cultural group.

A Forward Looking Framework: Thirdly, it seeks to provide a forward looking

framework for a new approach to the culture-responsibility relationship

grounded in practice, policy and theory. A normative schema is being sought but

the framework is not constructed as a formal and rigid solution to the problem of

culture and criminal responsibility. Instead, having defined the objectives of the

law in seeking a just way forward and identified and examined the issues at

stake, the framework is conceived as a working document and a starting point

for dialogue between interested parties. Looking to Dworkin’s ideas of law as

communitas and the search for the ‘best meaning’ of law, Cotterrell advocates

we search for the ‘best mutual understandings’ of how society should be

governed and argues that such understandings can be derived from ‘cross

cultural dialogue’ because ‘...law’s essential purpose in addressing the

conditions of multiculturalism is to facilitate communication.’ This is a departure

from the more generally understood and accepted purpose of the criminal law

(discussed in section 3.2) but certainly communication should be a first step in

formulating the law’s approach to multiculturalism. Such discussion ties law into

political theory, introducing law to the idea of a ‘dialogical approach’ in a post

recognition

era perhaps best described by Tully:

‘The first step in transforming the way we think about law-making and

difference has been from the presumption that there can be monological

solutions, handed down from a theorist, court or policy community, to the

approach that any resolution has to be worked out as far as possible by

means of dialogues among those in the field who are subject to the

contested norm of mutual recognition.’

Travers argues that socio-legal research is ‘…a subfield of social policy mainly

concerned with influencing or serving government policy in the provision of legal

services.’ Whilst this narrow definition of the socio-legal is not adopted here it is

important to remember that the proposed new framework, grounded in the

domain of the socio-legal, may in time become a useful working document and

may alleviate criticisms made for example by Herring who recognises that

scholars are brilliant ‘deconstructors’ but asks ‘…what is to replace the rubble

they have created?’ The framework aims to be both practical in suggesting a

workable approach to the culture-responsibility relationship and theoretical in

symbiotically drawing on and contributing to the development of a legal theory

that always places the demands of justice at its very centre. It makes a distinct

contribution to the field.

Much of the thought surrounding this difficult relationship between individual

legal responsibility and culture is constrained by binary paradigms which call for

simplistic choices to be made in framing answers to this most difficult of

questions how should the criminal law of England and Wales respond to the

relationship between culture and individual legal responsibility? For example, if

we allow culture into the courtroom then how does that affect gender equality? If

we concede that culture has a deterministic effect on behaviour then what does

that say about individual agency? In a broader sense these paradigms call for

two dimensional choices to be made, between for example multiculturalism and

social and national cohesion or between essentialism and the recognition of

difference or between multiculturalism and feminism. It is an overriding objective

of this thesis that, having stripped away the layers to arrive at the pared down

question of how an individual accused of a crime in England and Wales can

expect culture to be allowed to impact on the disposition of his case, the answer

should unfold in a reflexive and multidimensional way so that suggestions for a

new approach to the question are rounded and all embracing. This approach

should avoid Norrie’s criticism that legal discourse is ‘…essentially

contradictory… or antinomial in its form’ so that ‘…neither side of the argument

really or fully captures what is at stake.’ Furthermore, the objective complies

with Von Jhering’s interpretation of law as a ‘struggle’, a struggle for a law that

is living and vibrant and that links people emotionally and morally to culture.

The arguments presented fill a gap in academic discourse and the conclusions

reached can offer a practical and policy facing way forward because the work

can ‘…create clearings, openings, new possibilities for communication,

connection and creative invention where opposition or studied indifference

prevailed.’

To summarise, the aim of this thesis is to undertake a socio-legal and

interdisciplinary analysis of the relationship between culture and legal

responsibility focusing on the individual (not the group) and responsibility (not

rights) within the parameters of (i) the foundations, practice and policy of the

criminal law of and criminal justice system in England and Wales; and (ii)

understandings of multiculturalism within the socio-political system of the United

Kingdom in the twenty first century. The analysis remains mindful at all times of

the concept of justice and is intended to provide us with a renewed specifically

nuanced understanding of the relationship between culture and responsibility

and to establish the importance of that relationship for contemporary justice. It

will advance the hypothesis that the criminal law and criminal justice system of

England and Wales manifest an absence of consistent and coherent

engagement with culture and with the culture-responsibility relationship, based

on an innate reluctance to embrace, or even a fear of, the concept of culture.

This inconsistency, incoherence and fear needs to be addressed through the

construction of a framework which, although just a starting point for on-going

dialogue, recommends a way for the criminal law of England and Wales to

engage meaningfully with the culture- responsibility relationship.

1.3 Methodology and Research Methods

The thesis adopts an essentially doctrinal approach in analysing legal concepts

and principles. This is partly in accordance with what Kuhn identifies as

‘research paradigms’, shared worldviews within a discipline that determine

suitable methodologies. Yet here there is a necessity for a doctrinal

methodology because the analysis of legislation, traditional defences, decided

cases and sentencing decisions undertaken in section 3.3 not only serves to

support part of the hypothesis (that there is an absence of consistent and

coherent engagement between the concepts of culture and responsibility in the

practice of the criminal law) but the conclusions from that analysis form the

backbone to the thesis (and an original contribution to the field) in providing a

strong evidentially informed basis from which to justify further exploration of the

culture-responsibility relationship with a view to understanding its essence. As

Sanchez-Graells states, a doctrinal approach makes an analysis ‘…technically

sound from a legal perspective.’

In recent years doctrinal legal scholarship has expanded its horizons to include

both problem based and reform orientated approaches. It can also be said to

encompass content analysis (and this research method is adopted in reviewing

both the approach of the criminal law and the criminal justice system to culture

(sections 3.3 and 3.4) and multicultural policy (section 4.3)). Generally content

analysis can range from ‘impressionistic interpretations’ to highly systematic

analyses of text based data. Here, where a determined search for the

interaction between culture and the practices/policies referred to is pursued, the

analysis is closer to the impressionistic end of spectrum. A deductive approach

is taken in attempting to prove the hypothesis. One final thought on the doctrinal

methodology used is that it may amount to what Minow identifies as ‘doctrinal

restatement’ because the culture-responsibility relationship, initially understood

here as a problem in need of reform, will become in a sense a creation of this

thesis, newly understood or restated as a result of its scrutiny in the light of

theory, practice and policy.

Non-doctrinal socio-legal, interdisciplinary and feminist methodologies are also

natural partners for the subject matter of the thesis. It may be tautological to

emphasize the socio-legal nature of the thesis for despite the myriad definitions

of ‘culture’ it is always conceptualised within the ‘social’. However, it is useful to

point out that the analysis, comprising more than a black letter scrutiny of the

current approach of the criminal law to issues involving cultural diversity,

revolves around ‘…an interface with a context within which law exists.’64 As well

as the culture-responsibility relationship being de facto socio-legal, the work

itself is socio-legal in looking at how practice and policy interact with that

relationship. Multiculturalism is a social phenomenon and it is the reality of the

functioning of the criminal law in a multicultural society that must be considered.

As Norrie argues ’…in understanding a phenomenon such as law we need to

move beyond it, to the social structures and relations which underpin it and

which it mediates.’ The term socio-legal is to be interpreted as being a field of

research in its own right, situated within the broader area of social research and

being given a wide meaning to reflect the emphasis on the relationship between

law and society and to represent a balance to a narrow doctrinal approach.

More specifically the thesis involves research into the social, justifiable

according to Bryman because ‘…there is an aspect of our understanding of

what goes on that is to some extent unresolved.’

The thesis also takes advantage of the opportunity to explore the development

of the criminal law of England and Wales within the political realm drawing on

political theory and other disciplines. In this way the thesis is interdisciplinary for

how can the criminal law consider the culture-responsibility relationship without

looking outside its own boundaries? Sanchez-Graells argues that it is wrong to

ignore the economic implications of legal research but agrees that ‘…it is

equally faulty not to incorporate the insights derived from political science and

other social sciences such as sociology or anthropology or even beyond, from

evolutionary theory and psychology.’ Hutchinson recognises the limitations of

purely doctrinal research and the increased impact of an interdisciplinary

methodology in reforming the law stating that ‘…while the doctrinal core of legal

scholarship survives intact, legal scholars are, to some extent, endeavouring to

accommodate…social science evidence and methods and theoretical analysis

within the research framework in order to provide additional ballast to the

recommendations for reform.’ Here, the foray into disciplines other than law is

not prescriptive but is reflexively driven, with one path of enquiry leading to

another. Exploration in the disciplines of anthropology, sociology, religion,

philosophy and criminology enhance understanding but it is within political

philosophy that progress in this area is traditionally most evident and Kymlicka,

Lernestedt and Matravers argue that further progress requires ‘…political

philosophers to better understand the specificities of criminal law and for

criminal law scholars to better understand philosophical debates on culture and

agency.’ Recourse to these subject areas makes the project truly

interdisciplinary and the body of relevant literature potentially huge.

As seen in section 1.2, the 1990’s saw the emergence of a body of feminist

work that warned against multicultural accommodation in the interests of gender

justice. The multiculturalism/feminist paradigm is explored further in section 2.4

but it is clear that research in this area should be informed by feminist theory

and methodology. Braidotti emphasises that feminist theory is constantly

changing but that men’s interests are disproportionately represented in social

research and therefore a feminist methodology is necessary in seeking to

redress the balance.71 As Bartlett says, feminist enquiry uses three main

techniques, feminist practical reasoning, consciousness raising and ‘asking the

woman question.’72 Although Munro states that ‘…there is no such thing as a

united feminist jurisprudence, nor a universally shared feminist legal method’

she recognises that the law in context movement is a prominent theme in

feminist legal scholarship and as part of the social context of this research the

‘woman question’ is present throughout the thesis.73

At the outset a broad qualitatively based research strategy was envisaged as a

good fit for the research question in this thesis, an inductively based research

methodology based on Weber’s notion of verstehen which seeks to understand

rather than to explain social phenomena within the social sciences. 74 In

attempting to marry theory and practice it was hoped that ‘dialogue’ could be

used through the media of qualitative interviews and focus groups with

participants drawn from those working in the administration of justice in a

multicultural world and those representing diverse cultural beliefs and traditions

across society, to gain understanding of the attitude of ‘interested parties’ to the

concept of the culture-responsibility relationship. It soon became apparent that

this was an unworkable aspiration. The depth and breadth of the field and the

complexity of the culture-responsibility relationship itself meant that dialogue

would be

71R Braidotti, ‘Feminist Philosophies’ in Mary Eagleton (ed), A Concise Companion to Feminist

Theory (Oxford, Blackwell 2003) 211.

72 Katherine Bartlett, ‘Feminist Legal Methods’ (1990) 103(4) Harvard Law Review 830, 830.

73 Vanessa E Munro, The Master’s Tools? Chapter 9 in Watkins and Burton (n 57) 194.

‘Law in Context’ is, broadly, a movement to broaden the study of law emerging from the

University of Cambridge in the 1907’s and thus has much in common with the Socio-Legal

studies movement that originated at the University of Oxford at the around that time and

their earlier American counterpart the Law in Society Movement.

<https://www.cambridge.org/core/series/law - in context/

387EA14AA111E65AB0120DA893AFAFCBA > accessed 28th

September 2018.

74 M Weber (1947) The Theory of Social and Economic Organization (New York, Free Press

1947) 88 referred to in Bryman (n 66) 29.

meaningless without a specific point of reference from which to begin a

discussion. The framework suggested in Chapter 5 now provides that specific

point of reference, a starting point from which it is hoped in a later project to

undertake an empirically based exploration of the recommendations made in

this thesis. However, the research strategy still remains broadly ontologically

constructivist in that it recognises that ‘…social phenomena and their meanings

are continually being accomplished by social actors’ so that we see ‘…the

active role of individuals in the construction of social reality.’ The fluidity of

culture is

recognised in section 2.2 below but the constructivist emphasis on culture and

the culture-responsibility relationship in turn is balanced by objectivism for

culture can never be new, it ‘…persists and antedates the participation of

particular people.’

The use of content analysis is employed in sections 3.3 and 3.4 and more

particularly in section 4.3 and this is described in detail in the relevant sections.

Moreover the thesis has made opportunistic use of quantitative research

methods, in a limited way, in presenting some of the data gathered for the

review of decided cases in section 3.3 in statistical form. This is a useful way of

effectively summarising a number of facts and of making comparisons with

general statistics but it must be remembered that the statistics are based on a

relatively small number of cases. Therefore we need to be cautious about

making theoretical generalisations based on these statistics.

1.4 Literature

As described in section 1.3 above, the thesis adopts doctrinal, socio-legal,

interdisciplinary and feminist methodologies. The bibliography reflects the

enormous amount of material consulted to fully understand the culture-

responsibility relationship, to situate it most effectively within this boundless field

and to develop it to be able to make the recommendations set out in the

suggested framework in Chapter 5. The challenge is finding a balance between

covering the academic field and selecting the most relevant work for analysis.

As with methodology (other than the doctrinal approach) the search for relevant

literature is reflexively driven in a bid to get to the very essence of the

cultureresponsibility relationship. Bryman describes two main types of literature

review, narrative and systematic. The latter involves ‘…exhaustive literature

searches of published and unpublished studies’ and seeks an evidence based

solution or definitive answer to a research question. Such an approach does not

easily lend itself to answering a research question that spans many fields and

so the review of literature undertaken here is critically narrative and again

interpretivist, a bid to understand in the sense of the ‘thick description’ identified

by Geertz. However,

Geertz says that ‘…the besetting sin of interpretive approaches to anything -

literature, dreams, symptoms, culture - is that they tend to resist, or be

permitted to resist, conceptual articulation and thus to escape systematic

modes of assessment.’ It is argued that the review of literature undertaken here

is, in its way, ‘systematic’ because the attitude of the law, practice and policy to

culture is always central to our interpretation of the materials. This is especially

so in relation to the decided cases and sentencing decisions and law (section

3.3) and policy statements about multiculturalism (section 4.3) although these

important sources are perhaps more rightly defined as data. In fact the

conclusions reached from the data on decided cases and sentencing decisions

offer an original account of the approach of the practice of the criminal law to

the cultureresponsibility relationship. A formal literature review seems

inappropriate because of the large body of work drawn upon and because there

is not yet literature that directly addresses the culture-responsibility relationship,

at least not in the specifically nuanced way that this thesis argues that we need

to understand it, and so critical commentary is passed on relevant academic

sources throughout the thesis and in section 1.5 the work that has particularly

informed each Chapter is identified.

However, we have already seen that the concept of the ‘cultural defence’ is the

starting point for academic discourse about the place of culture in the criminal

law and Renteln’s work, relentless in its support of the ‘cultural defence’, is

significant in informing this thesis and relevant throughout. Renteln claims that

her 2004 book The Cultural Defense is the first book length specific study of the

topic and despite taking issue with some of her ideas this thesis shares her

broadly stated aim of questioning the ‘…proper role of cultural evidence in legal

systems’ and agrees that ‘…justice requires us to look at the context of

individuals’ actions.’ Renteln’s later book, co-edited with Foblets, is a useful

collection of essays that is also drawn on throughout the thesis. The third stated

aim of this volume is to

‘…inspire practitioners to consider raising the possibility of a cultural defence in

appropriate cases.’ The answer to the research question here will allow

practitioners in England and Wales to know when such ‘appropriate cases’

arise. Another edited collection of essays, Criminal Law and Cultural Diversity is

relevant throughout the thesis. The aim of the book is to ‘…encourage criminal

law scholars to reflect upon where and how information that could be called

cultural should be deemed relevant, especially in the application of the rules

regarding personal responsibility and blameworthiness.’ This book contributes

to understandings of the difficulties apparent at this problematic intersection but

stops short of offering a conclusion to the ideas or a discernible agreed

consensus on the way forward.

1.5 Overview of Thesis

This introductory Chapter has identified and contextualised the research

question, defined the boundaries of the enquiry and outlined the aims and

objectives of the thesis (sections 1.1 and 1.2). It has gone on to explain the

methodology and research methods adopted (section 1.3) and to situate the

research question within the existing academic literature (section 1.4). The

purpose of this section (1.5) is to provide an overview of the thesis, to show

how the answer to the research question, ‘how should the criminal law of

England and Wales respond to the relationship between culture and individual

legal

responsibility?’ will unfold.

Chapter 2

Broadly, the purpose here is firstly to define our own understanding of the

cultureresponsibility relationship, to explore more fully its meaning so that its

essence can be understood and to emphasise its distinction from the ‘cultural

defence’. The Chapter begins in section 2.1 with a reflection on the ways in

which culture might be said to affect legal responsibility and makes it clear that

of these possibilities we are concerned to explore cultural determination or

predisposition and moral outlook. Referring particularly to the work of Rosen

and Cotterrell, the inevitable interaction between law and culture in the widest

sense is then established. In sections 2.2 and 2.3 the concepts of culture and

responsibility are, in turn, subjected to thorough analysis to enhance

understanding. Culture, it is concluded in section 2.2, is perhaps indefinable, but

it is understandable and it is from this understanding, this recognition of the

attribute that makes us uniquely human, that questions about its relationship

with responsibility emerge. Contemporary understandings of culture also firmly

reject the notion of static and bounded groups and this interpretation is very

much in keeping with the objective here of refocusing the interplay between

criminal law and culture to concentrate on the individual.

If section 2.2 gives us an understanding of culture, section 2.3 enhances our

understanding of responsibility. Tadros identifies a number of elements to

responsibility and it is broadly the attribution of responsibility that we are

concerned with, ‘…the conditions under which an action or event can be

attributed to an agent who has appropriate status’ where ‘…that action reflects

in the appropriate way on the agent qua agent.’ 84 Here those conditions are

considered in the widest possible sense, looking beyond the realm of orthodox

subjectivism to a morally contextual understanding of responsibility. Drawing

primarily on the work of Norrie and Lacey the section takes forward to section

2.4 the idea that responsibility can be both a matter of agency and of the moral

values that different cultures engender.85 Following Fletcher’s analysis of the

general

Roger Cotterrell takes a socio-legal approach to the understanding of legal ideas and takes

socio-legal to mean ‘a perspective informed by social theory’. Roger Cotterrell, Law, Culture and

Society: Legal Ideas in the Mirror of Social Theory (Farnham, Ashgate Publishing 2006).

84 Tadros (n 44) 23.

The other three elements to criminal responsibility identified by Tadros are (i) who counts as a

responsible agent? (ii) defining the ambit of responsibility; and (iii) the defendant’s part in the

crime. The second refers to criminalisation and although the thesis is concerned with the

backward looking attribution of responsibility in criminal cases ‘cultural offences’ are considered

in section 3.2 in connection with the purpose of the criminal law and in section 3.3 in looking at

legislation which could be said to have created ‘cultural offences’ in the wider context of

assessing the engagement of the criminal law with culture.

85 Lacey (n 44).

Alan Norrie, Crime, Reason and History: A Critical Introduction to Criminal Law (Cambridge

University Press 2014).

part of the criminal law, understandings of responsibility are construed widely in

a second sense, that is to include the degree of responsibility (perhaps more

accurately culpability), the deemed degree of responsibility being reflected at

the sentencing stage.

In section 2.4, recognising that the culture-responsibility relationship is more

likely to gain credibility where it is conceptualised as a pre-disposition rather

than within the determinism/free-will paradigm, tentative arguments that culture

may affect responsibility in terms of agency and that it can certainly affect

responsibility in terms of moral values are put forward. Here a review of ideas

from a number of disciplines is undertaken but it is Ortner’s continuum of

positions on culture as a hard or soft determinant of behaviour that is most

useful in establishing the credibility of the culture-responsibility relationship. 86

Ortner explains that we begin by acting as individuals but when we recognize

that our actions fit within a pre-organised schema, we are likely to choose to

follow the schema. When acting in the cultural schema the path dictated by the

schema becomes intuitive for the actor. A link between the concepts of culture

and responsibility is thus established allowing us to conclude that legal

responsibility in the criminal law needs to be revisited in our multicultural world.

This section is then proactive in identifying inherent difficulties within the culture-

responsibility relationship and in attempting to dispel concerns around them.

These are both practical (evidential difficulties in court, the apparent

prioritisation of one group over another) and theoretical

(strict notions of equality may be undermined by perceptions of individualised

Alan Norrie, Punishment, Responsibility, and Justice: A Relational Critique (Oxford, Oxford

University Press 2000).

Norrie, Law and the Beautiful Soul (n 32).

86 Ortner, S. 1990) ‘Patterns of Shared History: Cultural Schemas in the Founding of Sherpa

Religious Institutions’ in Culture Through Time: Anthropological Approaches (ed)

OhnukiTierney, E. (Stanford, Stanford University Press) 43.

justice, cultural determinism has implications for agency and free will, the

cultureresponsibility relationship raises concerns of cultural and/or moral

relativism). This renewed and self-critical understanding of the culture-

responsibility relationship, summarised in section 2.5 is carried forward to be

applied to and tested in the context of the foundations of the criminal law and

the practice and policy of the criminal law and criminal justice system of

England and Wales in Chapter 3.

Chapter 3

Chapter 3 focuses on the criminal law and criminal justice system of England

and Wales, the first of the two distinct parameters for the exploration of the

cultureresponsibility relationship set out in section 1.2. The foundations of the

criminal law are explored in section 3.2 to assess the extent to which they may

or may not be able to accommodate the culture-responsibility relationship and

Ashworth and Horder (on the general principles of the criminal law)

complemented by the more critical approach of Wells and Quick provide useful

guidance here. Sections 3.3 and 3.4 can be thought of as ‘fact finding’ but they

sit at the heart of the thesis in engaging in turn with the black letter of the

criminal law and policy within the criminal justice system to prove the hypothesis

that there is an absence of engagement between the practice and policy of the

criminal law and culture. Section 3.3 involves an analysis of legislation aimed at

outlawing ‘cultural practices’, traditional defences and decisions on substantive

law and sentencing in 32 case with a cultural element is undertaken. As well as

supporting the hypothesis the section concludes therefore that the criminal law

cannot support a standalone ‘cultural defence’ or even the recognition of culture

within the traditional defences because its boundaries are not currently

receptive to that idea. However, there is a place for culture at the sentencing

stage in personal mitigation, where a pre-disposition or altered moral outlook

may be construed as a motive in influencing behaviour. Sentencing laws need

to reflect clearly the admissibility of culture as a factor in personal mitigation in

individual cases where it is established that culture has had an influence on

behaviour. There need to be clear procedural rules within the law of evidence

on how evidence of the effect of culture on behaviour should be introduced and

considered in the courtroom.

Following the analysis of the Police, Crown Prosecution Service and Judiciary in

the context of the culture-responsibility relationship in section 3.4 the section

concludes that the Judiciary (and prosecution and defence lawyers) need

specific training that goes beyond the stated aim in the Equal Treatment Bench

Book of

‘increasing awareness and understanding of the different circumstances of

people appearing in courts and tribunals’ on how to deal with cultural evidence

in court. Other areas explored in this Chapter include ‘honour’ and the gendered

implications of allowing culture into the courtroom in criminal cases. A

perception of mistrust between the concept of culture and the criminal justice

system also emerges from this Chapter.

Chapter 4

The Chapter focuses on the second of the two distinct parameters within which

the culture-responsibility relationship is situated, multiculturalism in the United

Kingdom. This is explored through three perspectives, social reality (section

4.2), policy (section 4.3) and philosophy (section 4.4). Section 4.2 involves a

historical analysis of migration to and from the United Kingdom from 1800 to the

present day in order to arrive at a thorough understanding of the make-up of our

multicultural population. We discover that the particular trajectory of the

development of multiculturalism in the United Kingdom has led to a focus on

immigration control rather than on the settlement of migrants after arriving in the

country, largely evidenced within a race relations framework. We see also a

focus on the delegation of settlement to local government and communities

rather than central government taking a strong and pro-active lead. We see a

focus in academic and political discourse on the immigrant, in particular

immigrant groups which does not necessarily reflect the contemporary social

reality of a more fluid migrant population.

The approach to multicultural policy in section 4.3 involves a thematic content

analysis of policy statements or, where these do not exist, of implied policy

throughout time. After considering understandings of integration the section is

divided into different time periods and the overriding theme emerging from the

analysis is the lack of coherent and clear policy from the different political

parties in office across time coupled with a failure to follow through on stated

policy objectives. Sections 4.2 and 4.3 together provide a comprehensive

picture of multiculturalism in the United Kingdom but they also provide evidence

of a lack of engagement between multiculturalism and law in general and the

cultureresponsibility relationship in particular. They also allow the emergence of

the argument that the culture-responsibility relationship has the ability to sit

comfortably within the policy objectives of integration.

Section 4.4 situates the culture-responsibility relationship within understandings

of multicultural philosophy and the discourse on multicultural justice. The

analysis here centers firstly on the politics of recognition and considers how the

relationship can best do justice to recognition and how it can avoid

misrecognition. Secondly it centers on dialogical theory and the search for

operative public values (Parekh) or norms of mutual recognition (Shabani) and

considers whether the culture-responsibility relationship could become such a

norm or value. In section 1.1 we emphasised the importance of the individual as

being at the centre of the culture-responsibility relationship but multicultural

philosophy focuses, broadly on the group. This section reconciles inherent

conflicts between group and individual (and in some cases state) and whilst it

goes without saying that the attribution of responsibility in the criminal law of

England and Wales rests with the individual we can see the importance of the

group in informing identity.

Chapter 5

Section 5.1. summarises the findings of the thesis before going on in section 5.2

to outline reflections on culture and multiculturalism in the context of justice. The

main purpose of the Chapter (and of course of the thesis) is to offer a forward

looking framework for the ongoing development of the culture-responsibility

relationship. This framework, set out in section 5.3 draws together the findings

made throughout the thesis in the realm of theory, policy and practice and offers

a practically based and roundly considered and just way in which the criminal

law and criminal justice system of England and Wales can respond to

relationship between culture and responsibility in a multicultural society. Section

5.4 takes advantage of the opportunity to set out a number of questions that

emerge during the course of the thesis about the ongoing just development of

the criminal law in an era of multiculturalism.

CHAPTER 2 THE CULTURE- RESPONSIBILITY RELATIONSHIP

‘…the degree of moral responsibility for wrongful conduct is something which is

beyond human power to allocate…’

2.1 Introduction

As seen in Chapter 1, this thesis seeks to answer the question how should the

criminal law of England and Wales respond to the culture-responsibility

relationship? What exactly are we asking here and how do we go about

answering the question in a multicultural society requiring both equality and

strict standards through criminal norms? To answer the question we must firstly

attempt to understand, in turn, the concepts of culture and responsibility. Only

then can we begin to focus on what we have already identified as the

paramount concern of this thesis, the relationship between them in individual

cases. There are a number of possible ways in which it might be said that

culture might be relevant to legal responsibility. For the sake of absolute clarity

a list of these possibilities and their place in the criminal justice system (at guilt

or at sentence) is given here, together with an indication of the dilemmas, legal

and philosophical, that each might give rise to:

I. D should not be responsible because he does not that know that

his actions contravene the criminal law of England and Wales.

This could be relevant to guilt.

Difficulties:

• Conflict with the principle of criminal law in England and Wales

that ignorance of the law is no excuse (discussed in section 3.2).

• Concerns of legal pluralism.

• Challenges notions of strict equality.

II. D should not be responsible because he is culturally determined or

pre-disposed to act in a certain way and therefore his agency is

compromised.

This could be relevant to guilt and/or sentence.

Difficulties:

• Evidential difficulties at both the guilt stage and the sentencing

stage.

• Challenges to the limits of excusatory defences (examined in

section 3.3).

• Undermining of agency and free will.

• Claims of essentialising ‘the other’.

• Apparent prioritization of one group (the cultural group) over

another (another cultural group or, as discussed in section 2.4,

women).

• Balancing claims of individualised justice against equality.

III. D should not be responsible because his moral outlook is

influenced by his culture.

This could be relevant to guilt and/or sentence.

Difficulties:

• Evidential difficulties at both the guilt stage and the sentencing

stage.

• Cultural relativism/moral relativism

• Challenges to the limits of justificatory defences (examined in

section 3.3).

• Apparent prioritization of one group (the cultural group) over

another (another cultural group or, as discussed in section 2.4,

women).

• Balancing claims of individualised justice against equality.

IV. D should not be responsible simply because he is a ‘member’ of or

belongs to a particular ‘cultural group’ (ie. his apparent identity is

disconnected from his legal responsibility) .

This could be relevant to guilt.

Difficulties:

• ‘Membership’ of a group alone is no longer sufficient to establish

a relationship between culture and responsibility in individual

cases which must now be seen in terms of (II) or (III) above.

• ‘Membership’ relies on outmoded views of culture as static and

bounded (discussed in section 2.2).

• Claims of essentialising the other.

• Concerns of legal pluralism.

• Challenges to strict notions of equality.

• Apparent prioritization of one group (the cultural group) over

another (another cultural group or, as discussed in section 2.4,

women).

• Adducing evidence of ‘membership’ in court.

V. D cannot be responsible because he has a ‘right to culture’ or his

culture needs protecting.

This could be relevant to guilt.

Difficulties:

• Cultural rights and the protection of culture, whilst of huge

importance, do not lie in the domain of the attribution of

responsibility in criminal law.

Setting out the possibilities in this way overcomes the criticism of lack of

definition levelled at the ‘cultural defence’. We can dismiss number I fairly

quickly by reference to the principles of criminal law in England and Wales (see

section 3.2) and number V, included because it is consistently raised in

connection with the

‘cultural defence’, can never be said to be truly relevant to the

cultureresponsibility relationship. Number IV is more difficult because it stems,

once again, from ‘cultural defence’ discourse and the wider domain of

multicultural theory with its emphasis on the group and group rights and it

moves beyond law and into the realm of identity politics. But as will be seen in

section 2.2, this thesis aims to move forward under an understanding of culture

that rejects the static and bounded group and that focuses on the way in which

culture is acquired, adopted and adapted and therefore uniquely processed in

each and every

individual case. We are therefore limiting the culture-responsibility relationship

to instances where it might be said that culture might affect responsibility either

because a defendant is culturally determined or pre-disposed to act in a certain

way and therefore his agency is compromised (number II) or because his moral

outlook is influenced by his culture (number III), and in either case that

determination or pre-disposition or altered moral outlook needs to be

considered in connection with a breach of the criminal law. The question of how

the criminal law should respond to such breaches is asked both in the context of

the attribution of legal responsibility through the application of the criminal law to

arrive at decisions on guilt or innocence and in the application of sentencing

laws to arrive at a just punishment in cases of guilt. ‘Responsibility’, as

understood in section 2.3, is therefore widely construed to include too the

degree of responsibility deemed to be just and reflected in sentencing

decisions.

The above list of possibilities identifies a number of problems that are inherent

within the culture-responsibility relationship and even if we confine this list to

those pertinent to the understandings set out in numbers II and III above these

are not insignificant. These difficulties, along with attempts to diffuse them, are

discussed in detail in the context of establishing the existence and importance

of the culture-responsibility relationship in section 2.4. They are largely

theoretical and fall under two headings, firstly what we can broadly identify as

‘equality, inequality and relativist concerns’ which encompasses notions of

individualised justice, pluralism, legal, moral and cultural relativism and

essentializing and secondly ‘feminist concerns’. Raising them does not

contribute directly to answering the question how should the criminal law of

England and Wales respond to the culture-responsibility relationship? However,

attempting to rationalise these difficulties enhances the commitment within this

thesis to the development of a holistic understanding of this problematic

relationship and the paradoxes within it so that the suggested answer to the

research question framed in Chapter 5 is as well considered as it can possibly

be.

An initial practical problem, however, is the treatment of cultural evidence in

court and this needs to be considered to fully answer the question how should

the criminal law of England and Wales respond to the culture-responsibility

relationship? The culture-responsibility relationship is therefore relevant both to

the rules of procedure within the criminal justice system and to the substantive

criminal law. The issue of culture in the courtroom is addressed in section 2.4,

evidence of the approach of the courts and of the Judiciary to the rules of

procedure is extracted during the analysis in Chapter 3, and more detailed

practical suggestions for a way forward in this dimension are included in

Chapter 5. A further problem that does not arise directly from the culture-

responsibility relationship but nonetheless affects the issue of culture in court is

the perception within ‘cultural defence’ discourse of an endemic cultural bias

within the legal system of England and Wales, something that is linked in turn to

the wider issue of discrimination. These issues too will be addressed in section

2.4. Bias, the ‘…inclination or prejudice for or against one person or group,

especially in a way considered to be unfair’ is an emotional issue and although

it is beyond the scope of this thesis to consider where the line between a unique

legal culture and bias lies this impression of bias needs to be acknowledged in

the context of the culture-responsibility relationship. A perception of bias can

arise from the interaction between law and culture in all jurisdictions and it is

useful at this stage to consider the interaction between law and culture more

widely, to reconsider why and how the domains of culture and law are of interest

to each other at all.

Cotterrell and Rosen both write about the symbiotic relationship between law

and society with the former taking a sociological approach and the latter an

anthropological approach. Cotterrell bases his work on, among others, the

theory of Ehrlich who developed the idea of a sociology of law in the early

twentieth century and who asserts that ‘…law lives in all human association.’

Law

therefore has no ‘truth’ of its own but its understandings come from participants

in the legal system and in this way law and the social are mutually constitutive

as ’…law gains its meaning and ultimate authority from the social at the same

time as it shapes the social through regulatory force.’4 Therefore, argues

Cotterrell, legal scholarship requires a sociological understanding of law. For

Cotterrell this sociological understanding of law is rooted not in the concept of

culture but in the idea of community because although culture is useful to

uncover community ‘…the term culture embraces a too indefinite and disparate

range of phenomena’ to be useful to legal theory. We therefore need to break

culture down into its component parts and see it as expressed in different types

of social relations of community. Our own understanding of culture, arrived at in

section 2.2, is, as Cotterrell suggests, indefinite but community along with

culture is in every way a group endeavor. At times it is difficult to see the

difference between Cotterrell’s ‘community’ and the understanding of culture

developed in section 2.2. Cotterrell does challenge the concept of the group

asking if the Rule of Law can recognise groups as ‘cultural persons assuming

rights and subject to duties’. This is a theme we return to in section 2.2 when we

question the ability of the group to

‘own’ a culture. Despite an emphasis on community, Cotterrell argues that

juristic scholarship is not addressing issues of culture even though there is

interaction between law and culture in many different ways and asks ‘…how can

culture be appropriately dealt with juristically?’8 This suggests that even though

culture may not be useful to legal theory it has to be addressed in the practical

realm.

Rosen argues that law is a ‘cultural domain’ that does not exist in isolation but

emerges when ‘…we create our experience, knit together disparate ideas and

actions and in the process fabricate a world of meaning that appears to us as

real.’9 Law cannot be divorced from the culture within which it exists. In this way

legal decision makers are bound to draw upon the wider domains alongside

which the law exists. So if culture influences law, then equally law influences

culture in ‘…contributing to the formation of an entire cosmology, a way of

envisioning and creating an orderly sense of the universe, one that arranges

humanity, society, and ultimate beliefs into a scheme perceived as palpably

real.’10 Rosen illustrates this hypothesis through a number of historical

examples within our legal system including juries who are an ‘important sign of

the culture of law.’11

8Cotterrell (n 3) 97.

Cotterrell lists six examples of where this interaction occurs and the list includes cultural

defences

1. References to legal culture in comparative law

2. Liberalism and Multiculturalism

3. Legal definitions of culture

4. Cultural defences

5. Law and popular culture

6. Law and cultural heritage Ibid 98-101.

9Lawrence Rosen, Law as Culture: An Invitation (Princeton, Princeton University Press

2006) 4.

10 ibid 11.

11 ibid 146.

In The Anthropology of Justice , ‘…a study of law as culture and culture as

integral to law’, Rosen takes these ideas and tests them in an ethnographic

study of the Islamic law courts of Morocco which focuses on judicial discretion

and how that is tied to culture. He finds that inevitably cultural concepts shape

judicial reasoning and decisions. In section 2.4 we refer to this symbiosis less

benignly as the ‘endemic cultural bias’ in the legal system of England and Wales

and although we cannot justify a ‘cultural defence’ to counteract that bias we

can endorse Rosen’s argument that ‘…the analysis of legal systems…requires

at its base an understanding of the categories of meaning by which participants

themselves comprehend their experience and orient themselves toward one

another in their everyday lives.’ This is a call for us to be self-reflective about the

culture that informs the practice of our criminal law, particularly our judicial

reasoning and decision making, and to be able to reflect in turn upon the

cultural perspective of others. It is, in its way, a reason for the importance of the

cultureresponsibility relationship.

In fact, Cotterrelll and Rosen (writing at different times) both appear to give us a

licence to consider the culture-responsibility relationship. We will see in Chapter

3 how culture is making its way into the judicial realm and how it is met with

uncertainty and reluctance. Rosen seems to recognise a space within the

criminal law for the culture-responsibility relationship stating that ‘…at moments

of contested social change the propulsion to tie various cultural domains

together may be intense: it may also appear most strongly when the results or

norms of a given statutory structure no longer seem to satisfy existing

sensibilities.’ It is argued throughout this thesis that those ‘existing sensibilities’

are not satisfied by the current ad hoc approach of the criminal law and criminal

justice system to culture and the need for a roundly considered and consistently

applied cultureresponsibility relationship is asserted. We appear to be in a

liminal space when it comes to what to do about culture in the courtroom and

the time is right to move the discourse forward and into the practical realm.

Cotterrell too issues a call to ‘…introduce a new paradigm that reunite(s)

concepts that have been fractionated by instances that prior ideas have been

increasingly unable to contain.’ That new paradigm, in the context of criminal

law and culture, is the culture-

responsibility relationship.

The aim of this Chapter is to explore understandings of culture and

responsibility (section 2.2 and 2.3 respectively). It takes these nuanced

understandings forward to section 2.4 where the existence, scope and

importance of the cultureresponsibility relationship is established and the

problems inherent within it, both practical and theoretical, are explored and

rationalised. In a somewhat circular argument these problems in themselves are

reconstructed to provide a justification for the place of a roundly considered

culture-responsibility relationship in the criminal law and criminal justice system

of England and Wales.

2.2 Understanding Culture

We all have some idea of what we mean and understand by culture but defining

or describing it, pinning it down in words, is another matter. Although Rosen

states that the key concepts of culture began before we became human, when

early hominids began to organise work groups, the first written references to

culture are thought to come from Cicero, who explored human culture

metaphorically in writing of the cultivation of the soil in his Tusculanae

Disputationes in 45 BC. More recently the concept of culture gained visibility in

the fifteenth century, an age of exploration, when Western adventurers

encountered the ‘primitive savages’ of other worlds, tribes who were perceived

to be ‘different’ and in need of ‘civilization’. By the nineteenth century these

diverse cultures were providing fascinating grounds for study and so the

discipline of anthropology, ‘the science of the nature of man’, emerged with

early understandings of culture emanating from the findings of cultural

anthropologists who travelled to far flung corners of the earth to undertake

ethnographic studies of isolated tribes. This means that for centuries culture is

something that has been perceived both as belonging to ‘others’, to non-

western people and groups and to which ‘others’ belong. A deemed group,

membership of which is based on racial or ethnic similarities, is ascribed a

culture and that culture becomes a strong aspect of identity, something which

individuals in that group feel that they belong to. In contrast, the west has been

perceived as a-cultural, an idea that we will return to in section 2.4.

It is not intended to provide a definition of ‘culture’ in this section but simply to

set

out the parameters within which culture must be understood. Jahoda, in his

critical reflection of recent definitions of culture, reiterates Lang’s conclusion that

‘…attempts at defining culture in a definite way are futile’. However, he

simultaneously recognises that the concept of culture is indispensable and

advocates clarification of the specific use of the term when used for empirical or

theoretical reasons. We do therefore need to establish our own understanding

of culture in the context of the culture-responsibility relationship. Calling on a

handful of influential definitions from the last 150 years and tracing the

development of the concept provides a good starting point in achieving that

understanding.

The Oxford English Dictionary gives two meanings of culture in addition to those

related to the arts or biology:

The ideas customs and social behaviour of a particular people or society.

The attitudes and behaviour characteristics of a particular human group.

These are drawn from the field of anthropology and from the start

anthropologists have attempted to define culture. In 1952 Kroeber and

Kluckhorn put together a list of 164 definitions of culture having identified the

emergence of 6 new definitions between 1871 and 1920 and 100 more between

1940 and 1950.20 More recently Varene has compiled a collection of definitions

of culture that he claims ‘…could someday lead to a new version of Kroeber and

Kluckhorn’s Culture: A Critical Review of Concepts and Definitions.’21 In 2004

Woodman claimed that there are over 3000 definitions of culture, an assertion

that may indeed be credible, and argued, in analyzing the ‘cultural defence’ that

there is no need to define culture.22 On the other hand, Van Broeck, who

advocates the use of ‘cultural offences’ to regulate undesirable practices,

argues that we do need a definition of ‘cultural’.23 Clearly any attempt to analyse

these definitions in depth is beyond the scope of this work.

The most widely accepted early definition came from Tylor in 1871:

‘Culture, or civilization, taken in its broad ethnographic sense, is that

complex whole which includes knowledge, beliefs, arts, morals, law,

customs, and any other capabilities and habits acquired by man as a

member of society’.24

21 Herve Varene, ‘Snippets from Overhearing a Conversation about "Culture"’ (19th October

2007)

<http://varenne.tc.columbia.edu/hv/clt/and/culture_def.html > accessed 19th October 2018.

Varene writes on ‘the culture of culture’.

There seems to be a recent interest in compiling definitions of culture with Spencer-Oatley

working on a similar set of definitions. Helen Spencer-Oatley, ‘What is Culture? A Compilation of

Definitions’ (2012) Global PAD Core Concepts 1

<https://warwick.ac.uk/fac/soc/al/globalpad/openhouse/interculturalskills/

global_pad_ _ what_is_culture.pdf> a ccessed 10th October 2018.

22 G Woodman, ‘The Culture Defence in English Common Law: The Potential for

Development’ Chapter 1 in Marie-Claire Foblets and Alison Renteln Dundes (eds),

Multicultural Jurisprudence: Comparative Perspectives on the Cultural Defense (Oxford,

Hart Publishing, 2009) 8.

However, Woodman randomly chooses a definition from the Canadian Commission for

UNESCO without offering explanation for his choice.

23 Jeroen Van Broeck, (2001) ‘Cultural Defence and Culturally Motivated Crimes (Cultural

Offences)’ (2001) 9 (1) European Journal of Crime, Criminal Law and Criminal Justice 1.

24 Encyclopedia Britannica (28 September 2018)

Edward B. Tylor, (1871) Primitive Culture as reproduced in Popular Science Monthly 26 (1884):

145. Public Domain and cited by <https://www.britannica.com/biography/Edward - Burnett - Tylor >

accessed 15th May 2018.

Tylor is considered to be the founder of British cultural anthropology. Early anthropology is

based on animism, the idea that animals in nature possess a spiritual essence.

Appiah has recently been critical of the concept of ‘western civilisation’ and of Tylor’s approach

to culture for its assumption that the west is ‘civilised’, and the rest of the world in not. His

criticisms were made in the 2016 Reith Lectures and reported in the Guardian 9th November

2016. <https://www.theguardian.com/world/2016/nov/09/western - civilisation - appiah -

reith lecture > accessed 20th September 2018.

This was based on the Herderian idea of Volksgeist or the spirit of the people

and on Bildung, which referred to the ‘totality of experiences that provide a

coherent identity’. Tylor’s definition is criticized for being vague around the

edges and already by 1940 Blumenthal was critical of social scientists in

general for using common sense definitions and called for a ‘scientific’ one. In a

bid to overcome these inconsistencies, White tried to impose a scientific order

to the concept of culture defining it as ‘…the extra-somatic means of adaptation

for the human organism.’ That is a good and simple definition but it does not

enhance understanding from a social perspective and in any event by 1949

Haring had already concluded, in an article whose title asked the very question

‘Is Culture Definable?’, that culture is not definable. However, in 1950 Kroeber

claimed that the most significant contribution of anthropology in the first half of

the twentieth century was ‘the extension and clarification of the concept of

culture’. By the 1970’s Geertz had formed the idea that culture is:

‘…an historically transmitted pattern of meanings embodied in symbols, a

system of inherited conceptions expressed in symbolic forms by means

of which men communicate, perpetuate and develop their knowledge

about

and attitudes to life.’

Geertz argues that cultural anthropologists traditionally attempt to describe

different cultures without acknowledging the limits that their own cultural

standpoint places on their ability to interpret the cultures of others and so we

need a ‘symbolic anthropology’ grounded in interpretive social sciences (which

goes back to Weber’s notion of verstehen and the idea that ‘man is an animal

suspended in webs of significance’) so that the ‘…analysis of culture is not an

experimental science in search of law but an interpretive one in search of

meaning.’ In this way we achieve a ‘thick description’ of culture. Geertz is critical

of cultural anthropologists too for searching for universal understandings of

culture and following a stratigraphic conceptualisation of man through layers

from the organic through to the psychological, social and cultural in turn when

these factors should be treated as ‘…variables within unified systems of

analyses.’ This is a step towards seeking the individual, or perhaps the

particular in the universal, and brings the understanding of culture closer to one

that is a better fit with the culture-responsibility relationship.

In 1989 Roosens moved towards a more cognitive definition, relevant for our

purposes, because it refers to the effect of culture on an individual’s behaviour.

Culture is:

‘…an encompassing system of thinking, doing, evaluation. It touches

different domains of human life and has some overall logic without being

completely deterministic.’

A final definition to consider is that of Spencer-Oatley. Culture is:

‘… a fuzzy set of basic assumptions and values, orientations to life,

beliefs, policies, procedures and behavioural conventions that are shared

by a group of people and that influence (but do not determine) each

members’ behaviour and his/her interpretation of the ‘meaning’ of other

peoples’ behaviour.’

And so we can draw from these definitions for our own clarification and to inform

our own understanding. The common theme in these definitions is the idea of a

‘complex whole’ (Tylor), something that is ‘fuzzy around the edges’

(SpencerOatley). This ‘fuzzy complex whole’ is a good starting point. The

question is whether or not we need to compile a list of what constitutes that

‘complex whole’. We have ‘knowledge, beliefs, arts, morals, law, customs’

(Tylor) and ‘assumptions and values, orientations to life, beliefs, policies,

procedures and behavioural conventions’ (Spencer-Oatley). We have ‘thinking,

doing, evaluation’

(Roosens) and more recently Matravers has added ‘experience of migration’ but

could we add to this, for example, folklore, religion, tradition, and identity? Tylor

suggests that his list is not definitive in adding ‘…any other habits and

capabilities acquired by man’ and it is probably best not to be prescriptive but

rather to allow for the evolution of what, in different times and places, may be

included in this

‘complex whole’ because there will always be disagreement about what should

and should not be on the list.

Pagel, for example, argues that religion is not part of culture but a way of

advertising commitment to a particular culture so that religion, along with music

and arts, is a ‘cultural enhancer’. Tradition, described by Glenn as a belief or

behaviour passed down with its origins in the past, is a more comprehensible

idea than culture because although it is historically grounded ‘…it is recognized

that traditions are not internally stable’ and all societies can have traditions

whereas the dominant culture, as stated above, can be seem at times to be

acultural.38 Somehow, tradition seems a weak concept in comparison with

culture and it is hard to imagine ‘tradition’ alone being considered in relation to

legal responsibility but there is absolute merit in its inclusion as a component of

culture. Giddens encourages us to look to tradition because it has the capacity

to circumnavigate the postmodern critique of culture (which claims that culture

leads us to think of societies as static and internally coherent with the danger of

the

‘…reified exotification of the lifeways of people’ who are different from us).39 This

postmodern attack raises awareness of concerns about understandings of

culture in the context of the culture-responsibility relationship - the myth of the

bounded culture, the hierarchy of cultures, the emphasis on the group and

conceptions of ‘the other’ and we will return too to these.

Whilst culture is an important factor in shaping identity and cultural identity is

therefore a characteristic of the individual, Benhabib bemoans our failure to

interrogate the meaning of cultural identity and argues that ‘…culture has

become a ubiquitous synonym for identity’ (and she is critical of this because,

she argues,

groups form around such identity markers and demand legal recognition and

resource allocation and identity politics draws the state into ‘cultural wars’).40

But this cannot be wholly right as individual identity is influenced too by other

markers

38 Patrick H Glenn, Legal Traditions of the World (5th edn, Oxford, Oxford University Press

2014) 30.

39 A Giddens, ‘Living in a Post Traditional Society’ in Ulrich Beck, Anthony Giddens and Scott

Lash (eds) Reflexive Modernization: Politics, Tradition and Action in the Modern Social Order

(Cambridge, Cambridge Polity Press 1994). Quote from anthrobase

<http://www.anthrobase.com/Dic/eng/def/culture.htm > accessed

10th October 2018.

On the other hand Renteln criticises the ‘postmodern tendency to deconstruct culture so that it is

no more than a social construction.’ Alison Dundes Renteln, The Culture Defense (Oxford,

Oxford University Press 2005) 11.

40 Seyla Benhabib, The Claims of Culture (Princeton, Princeton University Press 2002) 1.

such as race, gender, history, sexuality and religion and so identity, in the

individual, is greater than culture and culture, being as indeterminate as we are

understanding it to be, arguably only exists in the mind of the individual. Appiah

too sees culture as a source of identity (along with religion and nation and race)

but warns that all these things ‘…can become a form of confinement,

conceptual mistakes underwriting moral ones.’ Bhatt challenges us to refuse the

origin stories and identity myths that claim to be part of our culture on the basis

that they are recent constructions (or reconstructions) of the past and to

develop a deeper sense of personhood, responsible to humanity as a whole

because culture is a creative and dynamic process, and using it as an excuse to

follow certain behaviour is dangerous. Both Appiah and Bhatt therefore see

culture as something that may not be benign.

We can see in this exploration of the understandings of culture that the focus is

on the individual but we can further the construction of understandings of

culture for the purposes of the culture-responsibility relationship by finding in the

definitions studied here insight into the relationship between the individual and

the group. Culture is conceptualized as originating in the group and so it

comprises ‘…capabilities and habits acquired by man as a member of society’

(Tylor) or ‘…inherited conceptions expressed in symbolic forms’ (Geertz) or ‘…

assumptions [etc]…that are shared by a group’ (Spencer-Oatley) or it is the

means by which ’… men communicate, perpetuate and develop their

knowledge about and attitudes to life’ (Geertz). This is understood, but what we

are concerned with in the culture-responsibility relationship is a conscious or

subconscious acceptance by the individual of the conceptions of the group.

What we are effectively questioning is the extent to which the individual has

taken this joint construction of meaning on board, the extent to which the

individual has internalized the group cultural identity. Both Roosens and

Spencer-Oatley include reference to the cognitive domain in their definitions of

culture but both fall short of claiming that culture is deterministic. Barry argues

that cultural beliefs are freely affirmed and so consciously adopted but Parekh

says that cultural beliefs are more a product of circumstance than deliberately

chosen because ‘… in some cases a cultural inability can be overcome with

relative ease by suitably reinterpreting the relevant cultural norm or practice; in

others its constitutive of the individual’s sense of identity and even of self-

respect and cannot be overcome without a deep sense of moral loss.’ Kymlicka

takes a middle ground believing that people are capable of personal autonomy

(in deciding whether or not to take cultural beliefs on board) but the culture in

which they are brought up is usually the given context within which that

autonomy is achieved. Relating this to law and to the culture-responsibility

relationship, it seems there is some recognition of agency in decisions to accept

culture or part of a culture or not and as will be seen in section 2.4 Levine takes

Ortner’s work on this and applies it to the ‘cultural defence’. A final point of

importance about the individual and the group is that whilst culture is a product

of the group it remains a ‘concept’, nebulous and evolving, created over time

through the interaction of people. It therefore exists only in minds and it is

understood in different ways in different minds according to different

experiences. It cannot therefore be said that culture ‘belongs’ to the group

although the individual may feel a sense of ‘belonging’ to a particular cultural

group and may internalize a group cultural identity. It is the ‘membership’ of a

particular cultural group that has been at the heart of ‘cultural defence’

discourse and a significant factor in its failure to bear strict legal scrutiny but as

stated in section 1.2 the culture-responsibility relationship moves away from this

idea of belonging because belonging alone may not be relevant to the mind of

the defendant. Multiculturalism implies that the basis of all groups is cultural but

Barry says that this is simply ‘bad anthropology’ and, like Benhabib, argues

against the politicisation of groups based on culture.

We are therefore working towards a subjective understanding of culture,

grounded in the individual, despite the legacy of historical anthropological

studies, where cultures were grounded in the group which was seen as being

‘internally integrated and externally bounded’ and culture a singular and

universal driving factor in the lives of those studied, making for a more objective

definition of the group as a whole. Geertz is critical of both Levi Strauss for his

structuralist approach, his search for objective data to place anthropology in the

realm of positive science with a focus on the similarity of human structures

everywhere, and of Malinowski for his functionalist and absolute explanation of

cultures. The tendency to see cultures as bounded and static encourages the

perception of a hierarchy of cultures with ethnocentric views meaning that non-

western cultures are seen as inferior. Moreover, as Kukathas asserts, groups

are fluid and constantly changing and although early ideas refer to the ‘culture

of the group’ and the emergence of ‘group rights’ Kukathas argues that there

cannot be group rights, only individual rights and the authority that upholds

them.48 This is returned to in section 2.4 and fits in with what is at stake here

because for the most part the criminal law is concerned with individual

responsibility, not group responsibility. Dick argues for example that our

understanding of culture comes from historical, colonialist and imperialist

discourse so that minorities are seen as socially primitive and culturally

determined and Volpp objects to the idea that culture is conceptualized and

linked with race so that ‘…culture is a pseudobiological property of communal

life’ and the exclusion of some groups from ‘us’ a form of epistemic violence. 49

But is culture so bounded and isolated? 50

As we will see in Chapter 4 liberal multiculturalism is founded on the idea of

‘group rights’ but we can see ideas that move away from this framework and

emphasis. Benhabib, for example, argues that participants within a culture

experience it ‘..through shared, albeit contested and contestable, narrative

accounts…from within a culture need not appear as a whole; rather it forms a

horizon that recedes each time one approaches it.’51 In 1995 Waldron

recognized the period in which

share the same ideology, that culture is the essence of human nature but Geertz is critical of all

three because they do not permit the entry of the individual anywhere in their accounts. 48

Chandran Kukathas, ‘Are there any Cultural Rights?’ (1992) 20 (1) Political Theory 105, 116. 49

Caroline Dick, ‘A Tale of Two Cultures: Intimate Femicide, Cultural Defences, and the Law of

Provocation’ (2011) 23 (2) Canadian Journal of Women and the Law 519, 547. Leti Volpp,

‘Blaming Culture for Bad Behaviour’ (2000) 12 Yale Journal of Law and the Humanities 89.

50 The question of the incommensurability of cultures and cultural hierarchies will be considered

in section 4.4. The question of whether ‘others’ are culturally driven to some extent informs the

research question in this thesis. 51 Benhabib (n 40) 5.

he was writing as an era of ‘cultural hybridity’ where cultures have become

cosmopolitan, because ‘…we live in a world formed by technology and trade; by

economic, religious and political imperialism and their offspring; by mass

migration and the dispersion of cultural influences. In this context to immerse

oneself [in a culture] involves an artificial dislocation from what is actually going

on in the world’. And modern cultural anthropologists are keen to break down

old habits of unreflective ethnocentric judgments. Contemporary ethnographer

Whitehouse rejects claims of universal dispositions and claims that ‘…

anthropologists have now developed theories of culture that support varying

levels of individual idiosyncrasy’. In fact he refers to Ortner’s continuum of

cultural determinism as evidence of the recognition of individualism in cultural

theory. Deckha points out that we need a postcolonial approach where culture is

considered in a nuanced way and certainly some feminist writers see cultures

as hybrid, contested and overlapping, so that perhaps there is de facto

cosmopolitanism, whereby individuals code-switch from one group to another.

Challenging this individualism, Renteln criticizes ‘the postmodern tendency to

deconstruct culture so that it is no more than a social construction.’ But isn’t that

exactly what it is? Indeed, Benhabib defends ‘…social constructionism as a

comprehensive explanation of cultural differences’ not least because it avoids

cultural essentialism (something that we will return to in section 2.4). But Bush

too is critical of postmodern culturalism which ‘simultaneously promotes

cosmopolitanism and a universal hybridization of cultures.’ The issue is that, to

some extent and depending on where we sit on the Barry-Kymlicka-Parekh

scale of autonomy, in a multicultural world there is a choice and the ability to

exercise that choice will vary from individual to individual in the same way that

conceptions of culture vary from individual to individual. Because the degree of

choice is part of the culture(s) in question. As Uberoi and Modood state ‘…

cultures are linked to individual autonomy… but people need something to

choose with, which is the beliefs and norms of their culture’.

To reinforce this recognition of cultural hybridity and the idea of autonomy (and

whilst respecting feminist concerns) we have to argue that culture is wider than

Rimonte’s description of ‘…a body of beliefs, ideas and ideals held by an ethnic

group about the nature of women and men and about their roles and

relationships’ and we can no longer say that the beliefs, ideas and ideals

identified by Rimonte are held by an ‘ethnic group’ partly because culture and

ethnicity are distinct and partly because we are of course concerned with the

beliefs, ideas and ideals held by the individual though informed by the group.

Definition aside, do we all have a ‘culture’? Environmental biologists can

provide us with an answer to this question. In this field there seems to be little

dispute that culture exists and that it is what makes us ‘human’ as recent work

claims to prove that we are ‘wired for culture.’ Yet there is a tendency to assume

that white culture is nonexistent or invisible and to see ‘other’ cultures as sites

of oppression where individuals have struggled as slaves, colonised or

conquered, so that culture belongs to the oppressed. Bhabha encourages us to

think about our own cultures because we assume ‘monolithic characterisations

of minority migrant cultures’ and assume ‘the western democratic scene is

egalitarian and empowering’ and that minorities are ‘huddled in the gazebo of

group rights, preserving the orthodoxy of their distinctive cultures in the midst of

the great storm of western progress.’

And so what we have arrived at here is an understanding of culture as a fuzzy

complex whole, derived from the historical interpretation and adaptation by a

group of a number of possible influential factors that an individual may adopt,

consciously or subconsciously, freely or not, in whole or in part, and that

contributes to both collective and individual identity. Culture is therefore fluid not

certain, ephemeral not concrete and we can leave aside for now the question

of the ‘influential factors’ that should be included to make up this ‘whole’ The

interpretations of culture are therefore multiple. Is it an intellectual cop out to

decline to define culture? No, because fluid ideas are valuable and save us

from accusations of imposing our white western cultural biases in interpreting

what we think culture is and perhaps our understanding here can be considered

another of what Geertz calls ‘sites of interpretation.’ This ties in with the need to

see cultural practices through a lens ’…for which there is never a fully exclusive

inside and outside.’ Cotterrell argues that law has an inherent constitutive

power, a capacity to create the meaning by which people understand the social

environment in which they live and their place in it and so law can confer

‘cultural meanings’ on many things and perhaps in time it will bring its own

meaning to

‘culture’.65

For now we can carry forward from this section a conceptual understanding of

culture and an agreement that we all possess a culture. Although

anthropologists cannot agree on a definition of culture they recognize that for

the purposes of the law what is important is the effect that culture has or does

not have on behaviour and that will be explored in depth in section 2.4. Before

exploring the idea of responsibility in section 2.3 we can consider this one last

definition from Honig.

Culture is ‘…a way of life, a rich time worn grammar of human activity, a set of

diverse and often conflicting narratives whereby communal

(mis)understandings, roles and responsibilities are negotiated.’ This reinforces

the malleable nature of culture and in the next section the commutative

understanding of responsibility over time will be seen.

2.3 Understanding Responsibility

Matravers states that ‘…different conceptions of the criminal law will not only

have different accounts of responsibility…but may have different places for the

very idea of responsibility.’ Responsibility is often seen as forward looking

through the creation of offences, something that is addressed in this thesis in

section 3.2 in the context of the purpose of the criminal law, and backward

looking through findings within the criminal justice system that an individual has

committed such an offence. For the purpose of establishing the existence and

importance of the culture-responsibility relationship we are concerned here with

understanding a backward looking responsibility in the context of the individual.

The theory of the

Criminal Law is largely concerned with something called the ‘general part of the

criminal law’, that is, the structure of criminal liability and within that we need to

consider when an actor can or cannot be held ‘responsible’. Broadly, and

adopting a traditional dual structural analysis of the criminal law, most crimes

consist of an Actus Reus and a Mens Rea. The Actus Reus revolves around an

individual voluntarily carrying out an act (or in rare cases allowing an omission

to occur) that causes a certain outcome and the Mens Rea makes that act a

crime if the individual possesses the required mental state and if there is no

recognised defence. Together, therefore the Actus Reus and the Mens Rea

make the individual ‘responsible’ or liable for the commission of a crime in the

absence of a defence. The emphasis on responsibility is, however, a modern

idea because in earlier times there was simply ‘blame’. In his Nicomachean

Ethics Aristotle asked ‘what exculpates us from blame and when is blame

appropriate?’ In preMedieval times it was the harm that counted in English law

and it is not until the thirteenth century that Bracton first refers to ‘the will’. There

has been, over time, a shift from simple act to the will to choose defining action

in attracting criminal responsibility. There has also been a shift from a law that

simply defined specific offences (for example Blackstone (1760) and James

Fitzjames Stephens (1880) both focus on individual crimes)70 to the

development of the general part of the criminal law, an ongoing development

that began at the beginning of the twentieth century. The idea of legal

responsibility is complex in a number of ways.

Two broad questions relating to responsibility arise in the context of this thesis.

Firstly, where does responsibility sit within the criminal justice process?

Secondly, what makes an individual legally responsible?

In section 3.2 we identify the maintenance of social order as the purpose of the

criminal law, achieved in three ways through criminalisation to prevent harm,

the application of the criminal law to attribute responsibility through findings of

guilt, and sentencing decisions to enforce punishment. The first question raised

here,

‘where does responsibility sit?’ calls on differing structural paradigms of the

criminal law and looks a little more closely at where we find the attribution of

responsibility in the criminal justice process. We said in section 2.1 that we

need a wide understanding of responsibility to include not just findings of guilt

but the degree of responsibility deemed to be just and reflected in sentencing

decisions. In Rethinking Criminal Law, Fletcher recognizes the traditional dual

account of manifest criminality (the act) and subjective criminality (the mind) set

out above but is critical of Anglo-American legal theory for focusing on the

actor’s responsibility generally rather than focusing on the actor and his

accountability for the particular act in question. For Fletcher therefore

‘accountability’ consists of wrongdoing (the categorical violation of a prohibitory

norm without justification), the finding of culpability (where excuses may

challenge the degree of culpability) and punishment (which is retributively

related to desert to reflect the degree of culpability). It is clear from his work that

these three components all work together to determine not only guilt but the

level of culpability and there is a link that runs between all three strands

because the criminal law is making a judgment about ‘…whether a wrongful act

is attributable to character or to circumstances that overwhelmed [the actors]

capacity for choice.’ Fletcher sees in the second strand, the attribution of

responsibility (or in his words, the finding of culpability), the potential for an

individualised account of responsibility that acknowledges the fact that it is

easier for some actors to avoid wrongdoing than others but if one falls below

the minimum threshold of being able to avoid wrongdoing then he should be

excused. However, there are inherent limits on how many people we can

excuse in the interests of social control and safety and Fletcher suggests that

excuse should be confined to a ‘…limited temporal distortion of the actor’s

character’ because excuses do not change the norm of law but entail a

judgment in a particular case. The recognition of excuses in law, says Fletcher,

is motivated by compassion but this is acted out in decisions in the criminal

justice system through ‘mercy’ with the implication that a ‘superior’ actor is

showing mercy to an ‘inferior’ actor. Fletcher sees ‘law’ as applied to the

individual beyond the narrow interpretation of norm and justification and

construes it in ‘…a broad sense [that] encompasses the total set of criteria that

affects the outcomes of particular cases’, that is norms and justifications,

excuses and culpability and retribution and desert.

This is the breadth of responsibility we need to see in the culture-responsibility

relationship, what we refer to in section 3.2 in turn firstly as the attribution of

responsibility and secondly punishment. Culture, if superimposed onto

Fletcher’s three part framework could find a place in any part of the scheme.

However, we see in section 3.3 less flexibility to accommodate culture in the

traditional defences (both justifications and excuses) than Fletcher implies.

Therefore sentencing decisions too are crucial to understandings of

responsibility in the context of the culture-responsibility relationship with the

degree of responsibility determined at sentencing and the juncture at which we

may witness Fletcher’s ‘mercy’.

The second question ‘what makes an individual responsible?’ is harder to

answer not least because of the vast number of ideas in academic discourse on

the subject, although there is a lack of specific engagement between the field of

legal theory and multiculturalism. Responsibility in a liberal democracy is linked

to the autonomy of the individual and traditional accounts of responsibility focus

on agency. These ideas of agency emerged from Enlightenment philosophy,

particularly the work of Kant, so that ‘…individuals have free will and are able to

make rational self-interested choices.’ This is reflected, for example, in the

Criminal Law Commission’s Seventh Report which states that ‘the notion of

prevention through the medium of the mind, necessarily assumes mental ability

adequate to restraint’, a capacity based account of responsibility. Tadros says

that for the purposes of the criminal law we need to consider who can be a

responsible agent (for example children are not generally held responsible for

their actions), the ambit of responsibility (for example, we are not generally held

to account for omissions), causation and ‘attribution-responsibility’. Traditional

accounts of the attribution of responsibility are based on capacity, choice and

character and see the nature of responsibility as universal. Tadros, for example,

builds a theory of responsibility that argues that ‘…the central ideas that

motivate character theory are central to criminal responsibility, but these ideas

need to be carefully refined’ and also suggests that ‘…capacity has a proper

place in the theory of criminal responsibility.’

The traditional approach to understanding responsibility can however be

challenged. We can see this challenge in two recent (2016) accounts of

responsibility offered by Farmer and Lacey. These have been chosen because

they reject the idea of a universal personhood (and therefore should reflect

most closely the social reality of our multicultural society). They can in turn be

contrasted with Norrie’s earlier relational account of responsibility and his

challenge to orthodox subjectivism.

Farmer does not subscribe to a universal theory of responsibility but argues that

the policy of the criminal law is concerned with ‘…situating the concept of

responsibility in an account of its functions.’ In other words, responsibility is a

moveable phenomenon defined according to the aims of the criminal law at

different times. Perhaps we can read into Farmer’s statement that ‘…the

individual is embedded in social relations and must attune their conduct to the

conduct of others in an increasingly complex and interconnected society’ a

recognition of our multicultural population and the need for law’s understandings

to accommodate that. Farmer’s theory allows space for the culture-

responsibility relationship because responsibility is not absolute but driven by

the aims of the law in different contexts. For Farmer responsibility cannot be

disentangled from the practices of holding an individual to account so that

responsibility is ‘…a legal artefact…linked to the particular nature of civil order

in modernity.’

For Lacey too criminal responsibility is indeterminate and defined in terms of

ideas, interests and institutions, so that ‘…the underlying notion of a responsible

subject is shaped by an interlocking set of conditions that change over time and

place in tandem with factors such as the human situation, prevailing ideas,

institutions and the distribution of power.’ This invites us to consider the

conditions that exist in a multicultural era and how responsibility should be

construed in the face of cultural diversity because, as Lacey says responsibility

‘…is grounded in historically and culturally specific understandings’ and we

should therefore not simply accept Enlightenment understandings of

responsibility.82

Lacey begins her analysis of responsibility with ‘ideas’. The first idea is capacity,

both as choice and as fair opportunity. Capacity as choice is subjective and

relates to intention, knowledge or foresight whilst capacity as fair opportunity is

objective and relates to negligence or objective recklessness. This latter

category of capacity is harder to situate in a world of moral pluralism because it

fails to answer the question of what is fair. But in both cases the ‘…attribution of

responsibility for specific actions lies in human capacities of cognition-

knowledge or circumstances, assessment of consequences- and volition-

powers of selfcontrol.’ Capacity is central to the culture-responsibility

relationship because we are considering ideas of determination, pre-disposition

and an altered moral outlook and the effect of these upon choice and behaviour.

Lacey’s second idea is character whereby the attribution of responsibility is an

evaluation of character. Here we ‘…condemn not merely the sin but also, and

fundamentally, the sinner’ because we are resorting to ‘character essentialism’

or ‘character determinism’ where identity is fixed and character determines

conduct. In relying on character responsibility we are questioning the

defendant’s conduct as evidence of criminal character, asking ‘…does the

defendant’s conduct qua moral agent display the sort of vice which calls for

criminal law’s communicative role of expressing moral indignation to be

invoked?’ This seems a dangerous approach in assessing the responsibility of

defendants from other cultures because it is difficult to draw a line between

making a judgement about an individual’s breach of the criminal law and about

a culture that may have informed that breach. If we return to Fletcher’s criticism

of Anglo-American legal thinking for focusing on an actor’s responsibility

generally rather than on an actor’s liability for this particular breach of this

particular law we can see that character responsibility is not a constructive way

forward and may lead to the possibility of a less just outcome for that actor.

From the outset we have emphasized the need for the culture-responsibility

relationship to concern itself with the relationship between culture and

responsibility in individual cases.

Lacey’s understanding of character responsibility is based on wrong or bad

character at one end of a spectrum or good character where a vicious trait that

has been displayed is ‘out of character’ at the other. The culture-responsibility

relationship carefully places its actors in the middle of this spectrum, neither

inherently good nor bad but whose capacity, either in choice or fair opportunity,

has possibly been influenced by culture. However, character as broadly

construed to reflect the influence of culture is relevant to mitigation in

sentencing.

Lacey recognizes the shifting alignment of ideas of responsibility through time

based on ‘interests’ and so that interpretations of law are shaped by underlying

power structures. Over time she charts the shift, broadly, from the alignment

between judgements of responsibility and judgements of bad character in the

eighteenth century to the realisation of capacity responsibility in the nineteenth

century to a ‘dual track era’ of capacity (for ‘real crime’) and outcome

responsibility (for ‘regulatory crime’) in the twentieth century. She identifies the

current predominance of capacity responsibility but sees that character (and risk

and outcome) also hold sway at the prosecution and sentencing stage so that

we now have a ‘…hybrid pattern of responsibility attribution.’ In addition she

recognizes that ‘…different conceptions of responsible personhood may be

operating at the prosecution, trial and punishment stages- and each contributes

to the overall construction of the subject of criminal law.’ Lacey’s analysis of

responsibility and the culture-responsibility relationship can work well together.

Ultimately we are searching in this thesis for a forward looking framework that

can work in practice. If we can understand responsibility as an individual’s

capacity for agency both in terms of choice and fair opportunity at the guilt

stage and add to this character evidence in decisions on sentencing we may

have a just starting point for the development of the culture-responsibility

relationship.

However, we are still accepting in this construction of the responsible person

the Kantian autonomous agent. Wells and Quick state that ‘…crime is a

construct of particular legal and social systems, reflecting temporally and

geographically specific interests, imperatives and arrangements’ and so we

must question ‘… how responsibility for crime comes to be attributed exclusively

to individual offenders rather than (also) to the social, legal and political systems

which define and enforce law.’ Norrie challenges us, not to move away entirely

from this ideological individual and not to dispense with notions of agency

altogether because ‘…the situation calls for a form of judgement that can unite

appreciation of the social and political environment with individual agency.’ Like

Lacey and Farmer, Norrie does not engage with the concept of culture but he

does draw on ideas of community. He situates himself between Sereny’s

assertion that guilt is a question for the individual and Giddens’ assertion that it

is a question for community so that community is relevant to ideas of individual

responsibility and guilt. He draws on the social psychology of Harre and the

dialectics of Bhashkar so that ‘…individual identity exists within an overall,

totalising context and its nature is radically affected thereby.’92 He describes his

approach as relational and dialectic and this provides the bedrock for his

critique of Kantianism. This approach fits well with the understanding of culture

that we arrived at in section

2.2. Bhaskar describes his dialectic as the ability ‘…to see things existentially

constituted and permeated by their relations with others; and to see our

ordinary notion of identity as an abstraction.’ Culture too is existential, a group

created construction that is adopted and adapted by the individual and so we

see both in Norrie’s critique of Kant and in our understandings of culture the

interplay between the individual and the greater world around him. In

Punishment,

Responsibility and Justice Norrie asks us to consider ‘what if identity is not

individual, fixed, and stable but rather located in significant measure beyond the

individual in the social realm and therefore fluid and changing?’ In section 2.2

we do consider this non-monadic character, at least in so far as the identity of

the individual is informed by culture. The culture-responsibility relationship

therefore makes us naturally open to Norrie’s socially connected construction of

the

individual.

Whilst we might embrace Norrie’s resistance to the ‘abstract juridical individual’,

the ‘autonomous moral agent with abstract will’ informed by the Enlightenment

philosophy of punishment, the difficulty with Norrie’s entity relationalism is fitting

it into the criminal law and criminal justice system of England and Wales and

Norrie offers no practical guidance. We can question, however, whether we are

recognising in the culture-responsibility relationship the application of Norrie’s

dialectic because whilst we are calling the individual to account we are insisting

too upon a reflection on the effect of culture on his behaviour. In making a

judgment on the defendant with a ‘different’ cultural background is the court not

considering Norrie’s demand that

‘…the process of judgment must take account of the broader

environment, social policy and conditions, because these establish the

circumstances under which family life occurs and children grow up. It

includes the parents of the children, the surrounding neighbourhood and

ultimately the broader society. These are not easy judgements; they are

multi-faceted and particularistic, recognizing general circumstances in

the moment of individual agency’?

Perhaps in this we are over-simplifying Norrie’s ideas but that which the criminal

law and criminal justice system may not tolerate in theory can sometimes be

found to slip into practice. Norrie explains that ‘…the key difference between a

Kantian individualist view of responsibility and a dialectical-relational point of

view is that, for the latter, responsibility exists both in and beyond the individual

and the ‘significant others’ in her community or communities.’ For now, perhaps

we can acknowledge the significance of the relational approach to the

cultureresponsibility relationship in the attribution of individual responsibility (in

both guilt and sentencing) whilst simultaneously accepting that in reality and in

practice significant others and those beyond will not be called to account.

There is a third question that is often addressed in understanding responsibility

and that relates to the interplay between legal responsibility and moral

responsibility. There has long been debate about the interplay between law and

morals but it is generally accepted that a guilty verdict is the outcome (other

than in cases of strict or vicarious liability) for those deemed to be ‘morally

responsible’ for actions that infringe the criminal law. Law’s authority, says

Lloyd, is based on a belief in our moral obligation to obey the law and in turn

law needs to be ‘…buttressed by the moral convictions of the community.’ The

obvious question arises. What are those moral convictions in a multicultural

era? Returning again to Norrie, he argues that linking law and morality is

problematic because ‘blame’ is inadequate and we need to look to a ‘blaming

relation’ to counter individualistic moral or legal theory. But he acknowledges

that there is something important in doing individual justice and so, as we know,

he advocates a shift from orthodox subjectivism to moral contextualism because

divorcing the individual from her moral community allows us to make no sense

of what is good and what is bad. Whilst we need to be aware of strong positivist

arguments from, for example, Raz who sees law simply as social fact, we can

accept for the purpose of this thesis the correlation between law and morality

and in section 2.4 we will examine the idea that an altered moral outlook can

have an effect on behaviour in the context of the culture-responsibility

relationship.

In this section we have arrived at an understanding of responsibility so that we

are clear about where responsibility can sit within the criminal justice system

and about what can make an individual legally responsible. We can add this

understanding of responsibility, widely based so that it can in theory be situated

in any one of the three parts of Fletcher’s account of the general part of the

criminal law and to reflect Lacey’s fluid concept of agency based on capacity

but with an awareness of the role of character responsibility and of Norrie’s

moral contextualism, to the conception of culture as a ‘fuzzy, complex whole’

arrived at in section 2.2 and take both forward to section 2.4 in establishing the

existence and importance of the culture-responsibility relationship.

2.4 Establishing the Existence and the Importance of the Culture-

Responsibility Relationship and Overcoming its Inherent Difficulties

In Criminal Law and Cultural Diversity Kymlicka, Lernestedt and Matravers seek

to address two crucial questions, what to criminalise and how to ascribe

responsibility, calling for a reflection on when ‘cultural information’ can be

relevant to personal responsibility. Lernestedt advocates that we ‘…respect the

demand for true blameworthiness so that investigation gets profound enough

and close enough to this particular defendant.’ This, in essence, is what we are

trying to

achieve with the culture-responsibility relationship, a contemporary and

embracing understanding of the notion of ‘true blameworthiness’ based on the

understandings of culture and responsibility arrived at in sections 2.2 and 2.3

respectively.

What we are looking for then is a relationship between culture and legal

responsibility according to which it can be said that culture might affect

responsibility in individual cases. Establishing this link, in the terms set out in

section 2.1, validates the call for a revised approach to legal responsibility in the

criminal law of England and Wales in specifically defined cases in the context of

multiculturalism. As emphasized throughout it is the existence or perceived

existence of the relationship, if any, between culture and responsibility that will

need to be established if the criminal law is to adapt in the face of de facto

multiculturalism in order to achieve just outcomes. What we are essentially

asking is whether culture can have an effect on individual agency or upon

morality such that the attribution of criminal responsibility and punishment

should be reconsidered. If we take a paired down view on free will then agency

and responsibility depend on rational choice. But if we open up the

understanding of human behaviour to include background, context, emotions,

learned behaviour and responses then there may be more to it than absolute

unfettered free will. If we adopt a mono-culturally-centric view of morality then

right and wrong are clear-cut. But different cultural backgrounds may influence

moral standards. In section 2.1 we set out the possible ways in which culture

might be relevant to legal responsibility and carried forward to the culture-

responsibility relationship cultural determination or pre-disposition that

compromises agency or cultural influences on moral outlook. The line between

determinism and pre-disposition is not always clearly drawn.

Whilst it may not be possible to provide a definitive answer to the question

‘does culture affect responsibility?’ we can conclude that culture can affect

responsibility (or at least that there is a perception that it can) and that is why

the culture-responsibility relationship needs to be explored, within the two

distinct and

<https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1124922 > accessed 25th September

2018.

Canadian Tort Law has also seen developments recently in the context of culture with a number

of court cases in which claimants have argued that something in their religion or culture or both

entitles them to a finding of liability or greater damages. These cases have been criticized as

posing a threat to equality and to national and social cohesion. Vaughan Black, ‘Cultural Thin

Skulls’ (2010) 60 UNBLJ 186.

defined parameters set out in section 1.2, and to find its proper place in the

criminal law and criminal justice system of England and Wales.

The relationship between culture and responsibility crops up, directly or

indirectly, in a surprising number of disciplines and so we need to consider a

range of views in attempting to answer the question ‘does culture affect

responsibility?’ Beginning with science, there are recent claims from

neuroscience that all human behaviour is determined.102 Vincent states that ‘…

science and law have been locked in a dialogue on the nature of human agency

ever since the thirteenth century when a mental element was added to the

criteria for legal responsibility.103 In Vincent’s summary, these developments in

neuroscience, and behavioural genetics and psychology too, suggest findings

that threaten the moral foundations of legal responsibility by revealing that

determinism is true. Relying on a stochastic approach Green and Cohen argue

that advances in neuroscience show that ‘…free will as we ordinarily

understand it, is an illusion’ so legal responsibility, which is essentially

backwards looking, has no place in a

‘scientifically informed approach to the regulation of society.’ 104 If that were

infallibly so then the administration of criminal justice would be a much easier

affair. No fault liability across all crimes with a focus on deterrence and

prevention rather than retribution. But there must be caution because we have

yet to prove

102 See for example the work of Wegner, who asserts that conscious will is an illusion and that

we delude ourselves when we think that intentions are causal. Daniel M Wegner, The Illusion of

Conscious Will (Cambridge, MIT Press 2002). Clearly it is beyond the scope of the thesis to

attempt to assess the validity of such claims but reference needs to be made to them. The idea

is that the operation of the mind is linked to the operation of the brain. The brain is a mechanism

and operates according to the laws of the physical world and not the metaphysical world. 103

Nicole A Vincent (ed), Neuroscience and Legal Responsibility (Oxford, Oxford University Press

2013).

104 Joshua Green and Jonathan Cohen, ‘For the Law, Neuroscience Changes Nothing and

Everything’ in Judy Illes and Barbara J Sahakian, (eds) Oxford Handbook of Neuroethics

(November 2012)

<http://www.oxfordhandbooks.com/view/10.1093/oxfordhb/9780199570706.001.0001/oxfordhb -

9780199570706 - e - 039#oxfordhb - 9780199570706 - div1 - 039004 > accessed

1st October 2018.

that the will is not metaphysically free and Vincent calls for a more nuanced

approach, ‘…one that provides the mind sciences with a genuine opportunity to

enrich the legal understanding of agency and to inform legal responsibility

practices rather than just attempting to eliminate them.’

If we accept that the argument that free will does not exist is currently not fully

developed we need to return to the idea that culture can affect behaviour.

Environmental biologists are engaging in discussion around the place of culture

in human development. Going back to Locke’s tabula rasa, Pagel argues that

the human brain is primed for culture but that ‘we are not primed to acquire any

particular culture.’ His book, Wired For Culture, is about ‘…how our cultures

came to occupy our minds, what they demanded of us, how those demands

have been met, and whether our cultural nature provides useful solutions for

living in a modern world’.

Another scientific approach comes form the world of primatology, a discipline

that looks at the biology and psychology of primates and finds similarities

between human and primate behaviour. There is evidence that primates, like

humans, learn cultural behaviour and so, going back to White’s 1959 definition

of culture, primates too demonstrate this ‘extra-somatic means of adaptation.’ A

2010 study by Horner et al develops a theory of ‘prestige based cultural

transmission’ concluding that chimpanzees will follow the example of the higher

ranking individual, in just the way that humans do. This following is innate, the

product

of subconscious choice and when projected onto humans suggests a

predisposition to follow those of higher social status. Haraway is critical of

primatology because ‘…the scientific practices and discourses of modern

primatology participate in the pre-eminent political act in western history: the

construction of man.’ Primatology is raised here as one way of approaching the

effect of culture on behaviour; Haraway’s resistance to the scientific account on

the grounds that is anti-feminist is raised because the thesis is committed to a

feminist methodology, to ‘asking the woman question.’ However, the science of

primatology can only help us to understand culture and behaviour in the most

general of terms.

Cultural determinism is a controversial idea and bringing culture into the realm

of determinism perhaps follows patterns in criminology where there was a shift

from classical criminology based on autonomy and free will to the positivist

criminology of Lombroso in the nineteenth century. Fox is very critical of any

suggestion that culture is determinative, questioning how culture, itself only an

idea, can affect behaviour. He uses the word ‘culturology’ to describe

deterministic arguments and warns against stereotyping and homogenizing

‘explanations’ of the human

condition in different societies.

Moving away from science to consider determinism in the realm of the social

sciences, it is helpful to revisit Ortner’s continuum of positions wherein she

recognises that culture can be a hard or a soft determinant of behaviour. Ortner

perhaps comes closest to asking the pertinent question about the relationship

between culture and responsibility ‘…did my culture, this assemblage of shared

meanings and standards to which I have become ‘enculturated’, determine or

influence my behaviour?’ The ‘soft’ position is that culture has little to do with

behaviour at the time of the offence or the behaviour in question. It is just called

upon later to explain, describe or legitimate what happened. Here, we

‘appropriate after the fact’ to understand and validate what happened and with

echoes of ‘group membership’ it is not something that we can consider as

helpful in establishing a culture-responsibility relationship in individual cases. At

the other end of the spectrum is hard determinism and Ortner calls on the

structuralist work of Levi-Strauss where ‘myths operate in men’s minds without

their being aware of the fact’ and the ‘habitus’ of Bordieu according to which

actors require an internal programming that generates behaviour or patterns of

behaviour to elucidate what is meant. Ortner herself takes a ‘middle position’,

explaining that we begin by acting as individuals but when we recognize that

our actions fit within a pre-organised schema, we are likely to choose to follow

the schema. When acting in the cultural schema the path dictated by the

schema becomes intuitive for the actor. She summarises it in the following

paragraph:

‘With that shift in perception the cultural schema is appropriated and

further moves appear as the next rational step. In effect the cultural

schema has been moved by an actor from an external to an internal

position, from an abstract model of deeds done by ancient heroes and

ritual participants to a personal program for understanding what is

happening to one right now and for acting upon it.’

But the actor can move away from the schema. Applying this to the

cultureresponsibility relationship, it is a matter of balancing the degree of

agency of the individual against the degree of control of the cultural schema

over the individual. If the degree of control of the cultural schema is stronger

then, as Levine suggests, it is reasonable for the actor to rely on it. Ortner’s

approach to cultural determinism and/or predisposition is credible because it

reflects the understanding of culture developed here which emphasises the

individual’s interpretation of shared experiences and recognises the ‘personal

program’. It also appears workable and there is potential for its adaptation for

courtroom use, something that Levine considers in the context of the ‘cultural

defence’ and these ideas will be returned to in Chapter 5. However, it is open to

criticism. In section 2.2 we saw how Appiah and Bhatt are aware of the

confinement that ‘deeds done by ancient heroes’ can bring to the individual with

Bhatt encouraging us to move away from identity myths. Ortner’s schema does

allow for an individual response to what she defines as a historically grounded

culture, although Washburn pertinently questions what the ability to resist the

cultural schema is based upon.

He asks if we should regard culture as a ‘supra-individual phenomenon’ and if

so the question is ‘how cognitively encompassing is it?’ The answer to this

question must vary from individual to individual.

It is interesting to contrast Ortner’s cultural schema with Renteln’s ideas on the

relationship between culture and responsibility. As we know Renteln is a

supporter of the ‘cultural defence’ and relies on the argument that certain

cultural practices should be allowed as a defence. She says that four questions

need to be asked in deciding whether a ‘cultural defence’ should be allowed:

1. Is the litigant a member of an ethnic group?

2. Does the group have such a tradition?

3. Was the litigant influenced by the tradition when he acted?

4. Is the practice irreparably harmful?

In clarifying our understanding of the culture-responsibility relationship in

section 2.1 we confirmed that membership of or belonging to a group is not in

itself sufficient to establish a relationship between culture and responsibility, and

in section 2.2 we cast doubt upon the ability of a group to ‘own’ a culture.

Furthermore, in understanding the socially constructed and fragmented nature

of the cultural group it is difficult to think in terms of ‘membership’ and ‘group

traditions’. Renteln’s first two questions are therefore not relevant to the

cultureresponsibility relationship. Renteln’s fourth question does not fit within

the purpose of the criminal law of England and Wales as discussed in section

3.2. As we will see, in essence ‘harm’ is the basis for criminalisation and so if a

defendant is in court, the act of which he is accused is by definition considered

‘harmful’. Whether it is ‘irreparably’ so is very difficult to determine but what, if

harmful, is not in some way irreparably harmful? Death is irreparably harmful;

other actions may cause a variety of irreparable harms, both to the victim and

others. This just leaves the third question in Renteln’s scheme ‘was the litigant

influenced by the tradition when he acted?’. This is something akin to the

question ‘how might culture be said to affect responsibility in this individual

case?’ but it could also be asking the simpler question of how ‘tradition’ affects

conduct. In either case, guidance as to how the question(s) might be answered

remains undeveloped. However, Renteln’s ideas are still well regarded and an

international conference in honour of her work was held at the University of

Cagliari in 2016 where the ‘cultural defence’ was further explored. 124 At that

conference she reminds delegates that the aim of her 2004 book is ‘…not to

open the door to every cultural claim but to invite judges and policy makers to

become aware of the cultural component that a behaviour can have and to

remind them that culture is a human right to be protected.’125 Again, this is a

missed opportunity for considering when behaviour might include and be

influenced by that cultural component.

124 Details of the conference can be found online at

<http://www.clisel.eu/culturaldefense.pdf > accessed 20th September 2018.

At the conference Ruggiu suggested a 12 point test for when culture should be regarded as

a defence. The proposed test consists of the following questions:

1) Is it possible to use the category of culture?

2) How can the cultural practice be described in detail?

3) How is the cultural practice related to the broader cultural system?

4) Is the practice essential (to the cultural survival of the group), compulsory or optional?

5) Is the practice shared or contested within the group?

6) Is the group vulnerable within a society? Is it discriminated against?

7) How would a reasonable person in that group behave in the same circumstances? 8) Is

the subject sincere?

9) Is there a “cultural equivalent” ie. a similar or comparable practice in the majority culture?

10) Is the practice harmful?

11) What is the impact of the practice on the culture and value system of the majority? 12)

What good reasons does the minority present for continuing to following the practice at

issue?

This list does not help us at all in attempting to formulate a framework for the development of

the culture-responsibility relationship. It is still reliant on concepts of the ‘group’ and ‘cultural

practices’. The list does not bear legal scrutiny, for example, what does question 8 (‘Is the

subject sincere?’) mean?

125 Conference details in note above.

We have already been critical of Renteln’s work for its lack of clarity in both the

definition and purpose of the ‘cultural defence’. There is some confusion too

about whether she believes culture pre-disposes an individual to certain

behaviour or whether culture is determinative. In a Chapter in Criminal Law and

Cultural Diversity, her most recent work, she states that the ‘cultural defence’ is

‘…a defence employed by individuals who claim that their cultural background

predisposed them to commit certain acts’.126 This departs from her reply to

Magnarella’s argument that the debate on the freestanding ‘cultural defence’ is

theoretical/ideological where she conceptualizes it within the practical realm.

Here she argues that individual behaviour can be influenced to such an extent

by culture that either the defendant did not believe that his behaviour

contravened any laws (something she calls the ‘cognitive case’) or the

defendant was compelled to act in a certain way because of culture (the

‘volitional case’).127 Renteln argues that both cases should be allowed with a

view to ensuring equal application of the law to all parties and relies on the work

of Dworkin who believes that individual justice should focus on the actor as well

as the act.128 Renteln’s commitment to the ‘cultural defence’ in the cognitive

case is problematic for the criminal law of England and Wales because it brings

us face to face with the principle that ignorance of the law is no excuse and that

is discussed in section

3.2.

126 A Renteln, ‘What do we have to fear from the Cultural Defence’ Chapter 9 in Kymlicka,

Lernestedt and Matravers (n 36) 182.

127 Paul J Magnarella, ‘Justice in a Culturally Pluralistic Society: The Cultural Defense on Trial’

(1991) 19 (3) The Journal of Ethnic Studies 65, 65.

Alison Dundes Renteln, ‘A Justification of the Cultural Defence as Partial Excuse’ (1992) 2 Cal

Rev L & Women’s Stud 437.

This article is obviously written 12 years before the publication of The Cultural Defence and

Renteln may have, quite reasonably, shifted her position to see culture more clearly as leading

to a pre-disposition.

128 Ronald Dworkin, Taking Rights Seriously (London, Duckworth, 1977) 227.

If we take Renteln’s response to Magnarella just to apply to the volitional case

this is probably one of Renteln’s best argued pieces of work because she looks

at the whole picture and follows the implications of the ‘cultural defence’

throughout the criminal justice system. We need, she argues, a ‘cultural

defence’ as a partial excuse because mens rea should include considerations of

motive in establishing guilt. This is based on the idea of enculturation, which

should in turn be considered in the context of retributivism, proportionality and

individualised justice. Retributivism and motive are discussed in section 3.2 in

the context of Norrie’s morally contextual interpretation of retributivism which

leads to later arguments in this thesis for the place of culture in personal

mitigation at the sentencing stage. But there is still a lack of clarity in the

reference to the defendant being ‘compelled’ to act in a certain way and

‘compulsion’ seems to sit somewhere between determination and pre-

disposition.

To fully understand these arguments about the effect of culture on behaviour we

need too to grasp the concept of enculturation. Both Ortner and Renteln rely

heavily on the idea of enculturation which Herskovits summarises as a process

of socialization whereby the norms of one’s indigenous culture including its

salient ideas values and concepts are maintained. Kottak describes

enculturation as ‘…the process where the culture that is currently established

teaches an individual the accepted norms and values of the culture or society

within which the individual lives…enculturation helps mould an individual into an

acceptable member of society’. Washburn disputes this, arguing that

individuals are ‘intrinsically idiosyncratic’.131 He bases his arguments on work by

the neuroscientist Edelman who identifies individual idiosyncrasy from the

cellular level outwards. Once again, it is beyond the scope of this thesis to be

able to form a view on the credibility or otherwise of findings in neuroscience but

for the purposes of the culture-responsibility relationship we do need to question

whether enculturation is still valid as an idea in the social sciences. Richland, in

criticizing Renteln, says that culture ‘…relies on anachronistic notions of

enculturation, assimilation, and acculturation whilst simultaneously dismissing

more recent deconstructionist views of cultural practices as ignoring reality.’

There is very little recent academic engagement with the concept of

enculturation but it is often understood in terms of its difference from

acculturation. If we are enculturated in our culture of birth then we become

acculturated as we move from one culture to another. It is at this point that

‘culture conflict’ may emerge, something identified by Sellin in 1938. A whole

body of work has emerged under the broad heading of ‘cross-cultural

adaptation theory’ drawing on the disciplines of anthropology, sociology and

psychology. This is now most credible within wider understandings of ‘strain

theory’ which focuses on negative relationships with others as a cause of crime

through the creation of pressures on individuals towards delinquency.

Criminologists (and now cultural criminologists such as Hayward and Young)

have contributed to the field in examining the relationship between culture and

law breaking. During the 1930’s the ‘Chicago School’ of sociology developed a

symbolic interactionist methodology in carrying out ethnographic studies of

gangs, particularly of immigrants settling in the US. Rock has since explained

that meanings and motives ‘…are not established and confirmed by the self in

isolation. They are a social accomplishment...subcultures themselves are taken

to be exaggerations, accentuations or editings of cultural themes prevalent in

the wider society.’ Renteln, however, says that sub-cultures should not be

allowed a ‘cultural defence’ as their worldview ‘…is not radically different from

the rest of society’s.’ This is somewhat confusing.

It is sometimes suggested that ‘acculturation’ is a policy response to a

multicultural population but this is more accurately a psychological change

evidenced within the individual when he or she is exposed to a second

culture.140 Even though acculturation cannot properly be defined as a policy

response to multiculturalism, it may be part of the process of assimilation, which

in turn can be and has indeed formed such a policy response. Earlier work on

acculturation theory is now criticized for seeing acculturation as a one-sided

process leading to a static and, from the point of view of the majority, desirable

outcome for immigrants. More recently Berry has defined acculturation as ‘…the

dynamic interplay of behaviours and identity representing acculturation

‘strategies’’. According to Berry these strategies involve the adoption (or not) of

the majority culture and the maintenance (or not) of the minority culture. He

identifies four possible acculturation outcomes within his acculturation

framework: integration, assimilation, separation and marginalization. Berry’s

work is interesting in the context of the culture-responsibility relationship

because, as a psychologist, his focus is on the individual and he recognises

that ’…psychological acculturation can occur independently of group level

processes and will also be more closely linked to individual adaptation’.

Yet, if Berry is critical of his predecessors for seeing acculturation as a static

outcome, his acculturation framework in turn appears to represent four possible

static outcomes that do not account for shifting or multiple identities. Looking at

each of these static outcomes in turn, marginalisation (the loss of the minority

culture but with no compensation from the majority culture) and separation (the

exclusive maintenance of the minority culture) have never been policy

objectives in themselves but both are seen as undesirable side effects of ‘state

multiculturalism’ or indeed of a multicultural population. In fact, both are now

blamed for a number of social evils including radicalization and home grown

terrorism and as identified in the Rotherham Report child sexual exploitation

because ‘…an unhealthy culture of misplaced political correctness’ led to an

unwillingness to intervene in the practices of a marginalized group. And so there

is an argument that the degree of acculturation is relevant to the

cultureresponsibility relationship in the extent to which the defendant’s pre-

disposition or moral outlook is modified.

Another way culture may be linked to predisposition is through understandings

of self-control, which can be culturally specific. ‘Loss of control’ in the criminal

law of England and Wales exists solely as a partial defence to murder and the

extent to which there is space within that statutory defence to encompass

culture is examined in section 3.3. However, ‘provocation’ may be relevant in

mitigation at sentencing and it may be that the courts will have the opportunity

to assess the effect of culture on a defendant’s ability to exercise self-control at

that stage.

Up until now we have focused on the relationship between culture and

responsibility in terms of determinism and predisposition. Sometimes it is hard

to draw a line between the two. Parekh confidently asserts that ‘…while the

individual’s culture shapes his or her thoughts and disposes them to approach

the world in certain ways it does not and cannot determine them and deprive

them of their agency.’ This seems intuitively right and a safe position from which

to develop the culture-responsibility relationship. The conclusion must be that

culture can pre-dispose an individual to certain behaviour. Determinism is

harder because it ties into notions of agency, free will and choice. Ashworth and

Horder offer a summary of the philosophical position on determinism stating that

‘…most philosophers arrive at compromise positions which enable them to

accept the fundamental proposition that behaviour is not so determined that

blame is generally unfair and inappropriate and yet to accept that in certain

circumstances behaviour may be so strongly determined that… the normal

presumptions of free- will may be displaced’. The difficulty lies in applying this

philosophical position in the practical realm but in essence it comes down, once

again, to each and every individual case.

The importance of individual cases is even more important in matters of

morality.

Hart asks what makes for ‘moral responsibility’ and gives the following answer

‘…the capacities of understanding, reasoning and control of conduct. The ability

to understand what conduct legal rules or morality require, to deliberate and

reach decisions concerning these requirements and to conform to decisions

when made.’ Moody-Adams is firmly opposed to the idea of exculpation

through moral ignorance, writing strongly against the ‘inability thesis’ that

recognises a culturally induced blindness. She argues that the link between

culture and agency does not exempt humans from responsibility because there

is no independent causal power that prevents individuals from resisting the

demands of culture and questioning the moral wrongfulness of actions. In

looking at responsibility, morality and culture Matravers focuses on the

relationship between enculturation and morality and identifies the critical issue

in questions of responsibility as ‘..what is involved in grasping (understanding) a

moral reason?’ There is a difference, he argues between a defendant who has

the capacity to understand a moral reason and who chooses to reject it and the

defendant whose ‘…enculturation is such that he lacks the capacity to

understand that there is a moral issue at all.’ This latter person would lack a

participant understanding of morality but Matravers goes on to question why he

should be exempt from responsibility on this basis. After all, if he has done

some ‘serious moral wrong’ (and the state itself is not seriously unjust so that no

issue of standing arises) then ‘…the significance of culture (usually) does not

undermine the responsibility of the alleged offender in any general sense

because it does not (usually) undermine the alleged offender’s ability to grasp

and follow reason.’ There is not much space within this for the recognition of an

altered moral outlook although the use of the word ‘usually’ perhaps allows for

cases where a defendant may display a genuine inability to grasp and follow

reason.

Despite being unable to offer a black and white conclusion on the ability of

culture to affect behaviour we have considered the arguments and can

confidently assert that there is a perception that culture can affect responsibility

and that perception justifies the place of the culture-responsibility relationship in

the theory and practice of the criminal law. Moving away from the need to

assess the extent of the effect of culture on behaviour we can turn again to

Cotterrell who says that the ‘cultural defence’ is simply ‘…a demand for

differential interpretations of law’. This is echoed by Rosen who says that

culture is relevant even where behaviour is not determined or influenced by

culture because ‘…the failure to take seriously people’s cultural concepts as

part of their chosen world, and not simply as one imposed upon them, can

distort the role of law in their lives every bit as much as failing to consider how

their choices may be limited.’ As with our understanding of culture we can ask if

it is an intellectual cop out not to be more definitive about the effect of culture on

behaviour and again we can answer that it is not firstly because there is simply

no empirical evidence to allow us to give a categorical answer and secondly

because our understanding of responsibility now gives us the parameters within

which to consider whether culture has an effect in each individual case.

Moving beyond the individual there are wider socio-legal justifications for

bringing the idea of culture and its relationship with responsibility into the legal

practice of decision making in the criminal justice system. We can now consider

these justifications and begin to address the problems inherent within the

cultureresponsibility relationship. In section 2.1 we identified a number of

potential difficulties that have emerged around ‘cultural defence’ discourse and

that need to be addressed in the context of the culture- responsibility

relationship. We can group these into four broad categories:

• Perceptions of an endemic cultural bias in the criminal justice

system and discrimination.

• Cultural evidence in the courtroom.

• Theoretical difficulties around the notion of equality and

inequality and relativist concerns.

• Feminist concerns

Yet the problems in themselves can act as a socio-legal justification for the aim

here of finding the right and just place for the culture-responsibility relationship

in the criminal law of England and Wales. The practical difficulty of culture in the

courtroom is tackled ahead of the theoretical difficulties but before that we need

to address another problem, not something that is necessarily specific to the

culture-responsibility relationship but something that is sometimes used,

wrongly, as a justification for a ‘cultural defence’. That is the perception of an

endemic cultural bias in the criminal justice system of England and Wales and

the wider perception of discrimination in the criminal justice system as a whole.

Endemic Cultural Bias and Discrimination within the Legal System

The idea of a relationship between culture and responsibility might assume an

acultural legal system but as Loeb points out ‘…legal processes imagined as

almost neutral are themselves constituted by the cultural particularity of the

dominant hegemony’. Cotterrell talks of our ‘legal culture’ being ‘…public

knowledge of and attitudes and behaviour patterns towards the legal system’

and whilst we cannot endorse Renteln’s view that we need a ‘cultural defence’

to protect minorities against ‘majoritarian bias in the legal system’ we can

question whether a carefully constructed and applied culture-responsibility

relationship might contribute to the alleviation of distrust in the criminal justice

system identified by Lammy and discussed below. We have already taken issue

with Renteln’s ‘purposes’ of a ‘cultural defence’ and cannot support a

cultureresponsibility relationship for this reason alone but we can agree that

measures should be taken to overcome broader perceptions of bias and

discrimination in the interests of justice. This view is endorsed by Fournier, who

sees ‘cultural imperialism’ in the judicial process in the ways in which it asserts

its perspective to be universal and neutral and who challenges the universality

of legal claims to truth because ‘truth’, as established in the legal system, is

complicit in the othering of minority people. Lawrence takes this a step further in

her assertion that ‘courtrooms are critical sites in the production of our

understanding of culture’ and that legal systems paint distorted and

questionable views of non-mainstream cultures but an equally distorted more

flattering picture of the mainstream. The result is ‘racialisation’ with legal

systems assigning to others the traits of ignorant victims as ‘zealous followers of

deviant norms’. This, argues Lawrence, amounts to a perpetuation of cultural

racism under the guise of cultural

sensitivity.

Magnarella seems to support this, taking the practical point that there is an

overrepresentation of people of colour in the criminal justice system of the US

because in part of the ‘…inability of judges and juries from the dominant culture

to understand the perceptions/actions of people from minority cultures.’ He

argues that evidence must not be excluded because the defendant had a state

of mind that was unacceptable or incomprehensible to the trial judge from the

dominant culture. He has a point and we can see evidence of the convergence

and lack of convergence of the minds of judge and defendant leading to

questionable decisions in the criminal law of England and Wales. On the one

hand, why was Lavinia Woodward, an Oxford undergraduate convicted under

S20 Offences Against the Person Act 1861 for attacking her boyfriend with a

breadknife given a 10 month prison sentence, suspended for 18 months, and

the opportunity to ‘prove herself’ by taking treatment for her eating disorder and

addiction? The trial judge identified with her intellect and middle class career

aspirations and found that she was ‘too clever to go to prison’. On the other

hand why was Kiranjit Ahluwahlia convicted of the murder of her abusive

husband rather than involuntary manslaughter on the grounds of provocation?

In addition to recognising the legal arguments that hampered Ahluwahlia’s

defence because her loss of control was not ‘sudden’, Phillips argues that

Ahluwahlia did

not conform to the stereotypical image of the Muslim woman and so was

incomprehensible to the western judge. Culture for Muslim women, argues

Phillips, ‘…only becomes available to female defendants when they conform to

prevailing images of the subservient non-western wife.’ Lee relies on Bell’s

‘interest convergence theory’ in the context of the ‘cultural defence’ to argue that

it is more successful where ‘…the cultural norms underlying [their] defence are

either similar to or coalesce with those of the dominant majority’ because

cultural narratives can be more persuasive when they tap into social norms.163

But there are counter arguments to Magnarella’s assertions. Many criminals

and criminal acts may be incomprehensible to judges and assuming an inability

on the part of judges to comprehend cultural difference essentialises the white

western judge in the way that we seek to avoid essentialising ‘the other’ and

overlooks the fact that the white western judge does not exist in a vacuum but

in the real socio-legal world.

There is also the concern that hidden morality is at work in the assessment of

cases involving culture, as highlighted by Fisher. Relying on Dworkin’s theory of

adjudication he identifies how moral arguments, such as racism, cultural

pluralism and fairness to women are played out in the ‘culture defence’ debate

and at how judges look at the ‘internal moral question’ in the individual case

rather than at the external question of whether the ‘cultural defence’ plays a part

in the law. This of course may help in explaining the hypothesis here that

judicial approaches to issues of culture in the courts are ad hoc and

inconsistent.

Ultimately we do want the culture-responsibility relationship to address the

‘internal moral question’ but within a carefully considered framework. Supporting

the views of Magnarella above, Fisher concludes that defendants are more

likely to be able to rely on the ‘cultural defence’ where ‘…the cultural factors

reflect the morality of the legal system to which he is subject.’ This goes back to

a point made in section 1.1 about ‘honour’ in dueling cases.

But we have to be careful here for, as Fournier points out, ‘…too often culture is

in the hands of the power elite…and the disempowered are left out of its

configuration.’ To support this argument, Fournier cites the Canadian case of R

v Lucien in which the judge attributes the absence of the defendant’s remorse

for rape to a ‘cultural context’ rather than to individual ‘sexual misbehavior’.

This, says Fournier makes for a transition from biological racism to cultural

racism (the implication being that men from this particular culture are unable to

show remorse) so an attempt at a culturally sensitive decision turns out to be

racist. All of the above is critical of an endemic cultural bias in the legal system

but we have to consider that many organisations claim to have a unique

‘culture’, something that it is no doubt possible to be inside of or outside of.

Rosen recognizes that ‘…legal reasoning, even in its most professionalized

versions, must therefore tap into the recognizable modes of a culture’s

reasoning for at least a portion of its legitimacy’ but that equally we cannot hold

defendants to a standard of behaviour without comprehending, from their

perspective, what they were doing. In these thoughts Rosen is engaging directly

with the ‘cultural defence’ but it seems that he is in fact endorsing something

much more akin to the culture-responsibility relationship. The pertinent issue, in

any event, is managing the injustice that may arise from a perception cultural

bias in the criminal law and criminal justice system of England and Wales and

considering how the culture-responsibility relationship can play a part in that

management.

For at least 150 years there has been overt recognition of the potential for

cultural bias in the legal system of England and Wales. The judicial oath is set

out in the introduction to the Equal Treatment Bench Book and reads ‘I will do

right to manner of people after the laws and usages of this realm without fear of

favour, affection or ill will.’ We can see here a clear theoretical commitment to

equal treatment within the criminal justice system. The commitment of the

Judicial College to creating a diverse Judiciary (discussed in section 3.4)

displays a forward looking understanding of the issues of equality and

discrimination in our legal system. However, there are still clear perceptions of

cultural bias with a natural link to discrimination within the criminal law and the

criminal justice system and we need to consider these claims, for whilst there is

an inevitability in the reality of a system having a culture, cultural bias is less

benign especially if it leads to the more dangerous emergence of discrimination

and injustice.

In 2005 Shute, Hood and Seemungal carried out research into the treatment of

ethnic minorities in the criminal courts of England and Wales. Conducting 1000

case observations and interviews, they concluded that there was a perception

(reinforced through the findings of institutional racism in the McPherson

Report)172 that ethnic minorities are discriminated against within the criminal

courts and by other agencies within the criminal justice system. They

emphasized that this discrimination may be a perception rather than necessarily

a fact but questioned what needed to be done to increase the confidence of

ethnic minorities in the criminal courts. These perceptions extend to the

probation service, where there is a perception that less effort is expended for

Asian offenders. Research by Hudson and Bramhall looked at pre-sentence

reports and risk assessments of 144 white males and 54 other males (all

Pakistani save 3).

They concluded that there is ‘…considerable difference in the attribution of

remorse and acceptance of responsibility…and a difference in scoring of risk

assessment.’173 Perhaps, more measurably, Asian reports are simply ‘thinner’

with a more prevalent use of distancing language. In assessing risk Asians were

deemed to be more ‘reckless’ and ‘irresponsible’ leading to the authors finding

that the Pakistani or Asian Muslim is emerging as the ‘criminalised other’.

In January 2016 David Cameron commissioned an independent review of racial

bias and BAME representation in the criminal justice system.174 The Lammy

Review published its findings in September 2017.175 Its purpose is ‘…to make

recommendations for the ultimate aim of reducing the proportion of BAME

172 McPherson Report, The Stephen Lawrence Inquiry, Report of an inquiry by Sir William

Macpherson (Comn 42621, February 1999)

<https://www.gov.uk/government/publications/thestephen-lawrence-inquiry> accessed 21st

June 2018.

173 Barbara Hudson and Gaynor Bramhall, ‘Constructions of Asianness in Risk Assessments

by Probation Officers’ (2005) 45 (5) British Journal of Criminology 721.

174 BAME is an acronym for British and Minority Ethnic.

175 Lammy Review, ‘An Independent Review into the Treatment of, and

Outcomes for, Black, Asian and Minority Ethnic

Individuals in the Criminal Justice System’

<https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data

/file/643001/lammy - review - final - report.pdf > accessed 1st October 2018.

offenders in the criminal justice system.’ The review found that BAME

communities make up 14% of the population but that 25% of those making up

the prison population are from such communities and 40% of young people in

custody are from BAME backgrounds. The report makes 35 recommendations

and calls for ‘…robust systems [to be put] in place to ensure fair treatment in

every part of the criminal justice system.’ Obviously the report is concerned with

race not culture and we must be wary of falling into the trap that it is only those

of a different race who have a culture, but there are implications for the fair

treatment of those from other cultures. Many of the recommendations relate to

the systematic gathering of data on race. With our undefined understanding of

culture it is more difficult to see how meaningful data on culture can be gathered

but a nuanced reading on race/cultural statistics must be possible.

Recommendation 8 asks that ‘…where practical all identifying information

should be redacted from case information passed to [the Crown Prosecution

Service] by the police allowing the Crown Prosecution Service to make race-

blind decisions.’ This may lead to culture-blind prosecuting decisions. The main

issue identified is that of trust. For example, BAME defendants are much less

likely to plead guilty (and thus be eligible for a one third reduction in sentence)

because of a lack of trust and an ‘us and them’ attitude towards the criminal

justice system. The report calls for the publication of sentencing remarks at

crown court level to increase transparency (Recommendation 13) and for ‘…a

system of online feedback on how judges conduct cases. This information,

gathered from different

perspectives, including court staff, lawyers, juries, victims and defendants could

be used by the judiciary to support the professional development of judges in

the future’ (Recommendation 14). Both of these recommendations would be

welcome in the context of the culture-responsibility relationship as it would force

an openness of judicial reasoning in relation to culture, something that we

identify as missing in the review of decided cases carried out and discussed in

section 3.3.

The Lammy Report focuses on ‘over-representation’ of people from BAME

communities rather than on the more emotive idea of ‘discrimination’ but the

perceptions of discrimination identified by Shute et al remain. The question is

whether the culture-responsibility relationship can challenge that perception and

give those from other cultures some sense of assurance that their apparent

unequal position is being assessed. It is argued that it can and that there is thus

a practical reason for the culture-responsibility relationship to be embraced and

explored as a real issue for criminal justice in the twenty first century. But we

must be clear that we can only justify its application where there is a true

relationship between culture and responsibility in individual cases.

Taking these thoughts on discrimination further, Maguigan claims that there are

higher conviction rates and longer sentences for ‘outsider defendants’ because

‘…the present system does not reflect the shared values of a multicultural

society but instead reinforces the white traditionally male identified values of the

dominant culture.‘ Whilst this may be a one dimensional interpretation (there

are, of course, all sorts of reasons for these higher conviction rates) Maguigan

supports the view that cultural information is valuable at trial in support of

traditionally recognised defences (on the basis that the standards of the

dominant culture support traditional defences) and at sentencing but is at pains

to point out that this is only where there is a link between cultural evidence and

mens rea, where there is, in effect, what we are calling a culture-responsibility

relationship.180 She accepts the idea of the admissibility of cultural evidence

where it is relevant to the mens rea of the defendant in the spirit of working to

multiculturalist reform through ‘…a system that takes a more pluralistic

approach to the assessment of blame and the imposition of punishment’.181 Is

‘pluralistic’ the right word here? In the culture-responsibility relationship we are

emphasizing the individual defendant and the effect, if any, of culture on that

person. Perhaps her ideas belong to a time where ‘multiculturalism’ was more

clear cut because she devises a hierarchy that offers three levels of protection

to defendants depending on where they were enculturated.182 Whilst this is a

brave attempt to counteract the inequality of a system where a white, male

dominant culture prevails with clear cut rules, it is clearly overly simplistic to

assume that defendants can fit neatly into one of three (or one of any number

really) categories. She is attempting to address arguments about inequality

here but is also tackling ‘cultural bias’. Whilst her tiered approach is open to

criticism she is one of the most perceptive of the writers from the 1990’s in both

recognizing and advocating the need for a link between culture and mens rea in

the context of the ‘cultural defence’.

180 She also says it is valuable at pre-trial negotiation but this is less relevant in England and

Wales.

181 Maguigan (n 179) 45.

182 The 3 categories are

• People born and enculturated outside the USA

• People born and enculturated within an indigenous culture within the USA

• People born and enculturated within a subculture of the USA

Recognising then the perception of bias within the criminal justice system of

England and Wales (arguably a ‘bias’ inevitable in any legal system) and

perceptions of discrimination backed up by the findings of the Lammy Report, a

carefully constructed and utilised culture-responsibility relationship has the

potential to assist the criminal justice system in tackling cultural diversity as well

as being a tool for justice in the wider sense that those from other cultures feel

that their standpoint is understood.

Culture in the Courtroom

Caughey asserts that ‘…what we need to bring to trials is our most

sophisticated professional understanding of how culture influences human

thought.’ If we add to this ‘in individual cases’ we have something akin to the

cultureresponsibility relationship rather than the loosely termed ‘cultural

defence’. Yet culture in the courtroom appears to be problematic, with

Woodman recognizing both the ‘theoretical and practical difficulties about

bringing information about culture into the courtroom.’

A number of authors emphasize the potential difficulties from different angles.

Demian argues that culture is a legal fiction in terms of the courtroom ‘…an

assumption formed through argumentation to achieve the desired outcome in

court- with the purpose of knowing the intentions of another.’ Lawrence states

that ‘…courtrooms are critical sites in the production of our understanding of

culture.’ D’Hondt raises concerns ‘…about how minority cultures are

represented in cultural defence discourse, the collective abnormalisation and

stereotyping to which they are subjected and the way in which the agency of

individual members is erased.’ There is the further argument that raising culture

shifts the focus of a case onto the merits of a particular culture and away from

the defendant’s behaviour. Sachar acknowledges that culture can be a sword

(raised as an advantage) or a shield (as protection from disadvantage) and in

civil cases supports the latter so long as it is ‘…not a sole or pre-determinative

factor in the judicial making process.’ She sees this as being a middle ground

between cultural blindness (where there is no place for culture) and cultural

determinism, a ‘culture demystifying approach’ where identity is neither

privileged nor excused but where litigants can elaborate on ‘sources of the self’.

This approach to civil law can be adopted in the criminal law through the careful

consideration of the culture-responsibility relationship in individual and limited

cases.

On the other hand Renteln argues that cultural evidence should be allowed as a

‘procedural matter’ in all cases and that judges should always appoint a ‘cultural

expert’. Rosen agrees with the use of experts in ‘cultural cases’ because, as

seen earlier in this section, judges do use their own cultural assumptions to ‘fill

in the facts’. 191 Benhabib says that culture presents itself through narratively

contested accounts for two reasons, ‘…human actions and relations are formed

through a double hermeneutic- we identify what we do through an account of

what we do - words and deeds are equi primordial.’ Overall there is a sense that

cultural evidence can be helpful so long as we are aware of the sensitivities

raised above.

What is the current legal status of cultural evidence in the courtroom? The law

of evidence in England and Wales is still governed by common law although

there are Criminal Procedure Rules and Criminal Practice Directions which set

out the detail of the admissibility of evidence in the criminal courts. Generally,

expert evidence may be admitted with the permission of the court where it can

assist with understanding beyond the knowledge of judge and jury and the

expert must have relevant expertise, must be impartial and must pass the

‘reliability threshold’. The duty of the expert is to provide the court with an

objective and independent opinion. A 2011 Law Commission Report on Expert

Evidence in Criminal Proceedings found a laissez faire approach to expert

evidence within the criminal justice system and called for reliability tests to be

stricter. A Criminal Evidence (Experts) Bill was introduced in 2011 but not

adopted although some of the Law Commission recommendations were later

incorporated into practice through amendments to Criminal Procedure Rules.

We will see in section 3.3 that in R v Sebastian Pinto and Others the expert

evidence of an anthropologist from Kings College London was dismissed as a

‘cultural horoscope’ and in R v Khatun the judge ruled that expert assistance

was not required in cultural issues, a ruling upheld by the Court of Appeal. The

Crown Prosecution Service guidance on expert evidence lists 16 areas of

expertise.

‘Forensic Anthropology’ relates to the identification of human remains. There is

no mention of expertise on culture, multiculturalism or more general

anthropology. The UK Register of Expert Witnesses has only one entry under

‘multiculturalism’ and that relates to ‘multicultural health’. There are 111 entries

under the heading of culture with experts on Muslims (2), Pakistani culture (1),

Islamic culture (2), Indian culture (2), ethnic minority culture (1), Asian culture

(1) and Arab culture (1). The Law Society Gazette directory of expert witnesses

has no entries for experts in anthropology, culture or multiculturalism.198

Yet there are a number of anthropologists who have worked as expert

witnesses in the courts and Holden draws together accounts of their

experiences in her edited volume Cultural Expertise and Litigation: Patterns,

Conflicts and Narratives. She states that this is based on the ‘cultural defence’

although there are ‘less extreme’ examples too of work around family matters,

immigration and asylum and the evidence of anthropologists has usually been

associated with customary law and native title. Her definition of ‘cultural

expertise’ is helpful. It is ‘…special knowledge that enables socio-legal scholars,

anthropologists or more generally speaking, cultural mediators, the so-called

‘cultural brokers’, to locate and describe relevant facts in light of the particular

background of the claimants, litigants or the accused person(s), and in some

cases of the victim(s).’ In March 2015 the Society for Applied Anthropology in

the USA held a conference on the theme of ‘The Anthropologist as Expert

Witness: Theory, Practice and Ethics’. The conference explored the idea that

there are general differences in methodologies between law and anthropology,

with law seen as black and white and anthropology as much more grey which

can be problematic.

This begs the question as to whether we need ‘expert’ evidence in cases

involving the culture-responsibility relationship. Lacey asks ‘…is there any

reason to think that the challenge facing the advocate of extended cultural

defenses here is analytically or practically different from that faced by anyone

interested in how criminal law should respond to other situational differences

between defendants which may bear on their offending behaviour?’ If we are

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moving away from ideas of degrees of enculturation and situations where a

judge might be called upon to establish degrees of assimilation there is an

argument that the challenges of evidence are not unique. But the newness of

overt references to culture in the courtroom makes it an unknown and as

Caughey says, we are looking,

particularly in the culture-responsibility relationship, for understandings of ‘what

happened’ through a ‘person centered ethnography’. Cotterrell recognizes that

we are beginning to interpret law in a gendered way (for example with the

recognition in the new law on loss of control of ‘slow burn’, something that was

not recognized in the old law of provocation which needed a ‘sudden’ loss of

control) but calls for a parallel ‘cultural interpretation’ because law is shaped by

certain cultural assumptions ‘…and in contemporary conditions of considerable

(and perhaps only partially mapped) conditions of cultural diversity such a

position is no longer tenable.’ There can be no harm therefore in providing a

framework for the use of cultural evidence in limited and necessary

circumstances and for encouraging courts to turn to experts where they can

assist with understandings beyond those of judge and jury.

Maeder and Yamamoto undertook research to question whether a culturally

based argument in non-insane automatism cases was beneficial or detrimental

to defendants. Placing cases before a mock jury the findings were that ‘…

ethnocentrism led to a lower perceived defendant credibility in the cultural

condition but not in the standard automatism condition.’ Culture may not

necessarily be, therefore, Sachar’s shield. With thought culture can be

accommodated in the courtroom and there are a number of reasons why it

should be. One way of overcoming the recognised difficulties of culture in the

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courtroom would be to follow Renteln’s suggestion that ‘lawyers could study

cultural analysis in the required legal ethics class in law school.’ Yet the

difficulties identified

above by Woodman, Demian and D’Hondt can be moderated through the

exploration of equality, inequality and relativism below. The difficulties may arise

too because there is not currently in place a specific framework for the

treatment of cultural evidence and courts have been reactive when faced with

culture, rather than proactive in preempting the probability of coming face to

face with it in a multicultural society and considering guidance to deal with it.

Alternatively we may be seeing once again a reluctance to engage with culture

or even a fear of

it.

Equality, Inequality and Relativist Concerns

The notion of equality is a fundamental tenet of justice and equality in the

application of the law is protected by the Rule of Law. Perceptions of equality

are especially important in the light of perceptions of discrimination. Yet there

has always been great philosophical debate about what ‘equality’ means and

how it can achieve both formal justice and social justice. There are arguments

that a ‘cultural defence’ undermines formal equality (and that allegation can of

course be leveled at the culture-responsibility relationship) and that it can give

rise to a whole host of inegalitarian evils such as individualised justice, legal,

moral and cultural pluralism (and, stemming from that, relativism) and that it

leads to essentializing and the erosion of agency of the ‘other’. Sometimes it is

hard to know where one of these ‘evils’ ends and another begins and so they

are addressed here under the broad heading of ‘inequality and relativist

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concerns’ but it is argued that the culture-responsibility relationship is less of a

threat to equality than the ‘cultural defence’ and on some understandings it can

indeed contribute to achieving equality.

In 1881 Holmes wrote ‘…the standards of the law are the standards of general

application. The law takes no account of the infinite varieties of temperament,

intellect and education which make the internal character of a given act so

different in different men.’ In the twenty first century we are seeing a shift so that

the Rule of Law for example (discussed in section 3.2) should apply equally to

all ‘…except where objective differences justify differentiation.’ Waldron

examines the way in which the law can accommodate difference without

compromising the basic ethos of legal equality. He draws on the work of

Dworkin who distinguishes treatment as an equal (the right to be treated with

equal concern and respect) from equal treatment. We strive for a society based

on equality but the law of England and Wales does not recognize ‘cultural

equality’. Bringing the culture-responsibility relationship into wider discourse

around equality will surely aid in our quest for equality. As a contemporary

dilemma it sits at the centre of the interaction between law and multiculturalism

and it problematizes a number of other pressing social questions within the

wider political domain.

The Equality Act 2010 makes it an offence for one person to discriminate

against another on the grounds of certain protected characteristics and applies

in certain areas such as education and the workplace but also to ‘Services and

Public Functions.’ Culture is not a protected characteristic. Race, religion and

belief are and perhaps belief (‘…any religious or philosophical belief’) could be

construed as including a cultural belief? As we saw in section 2.2 definitions

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and understandings of culture are nebulous and perhaps not suited to the

legislative framework and we are careful to avoid the claim that ‘…any view of

culture as clearly delineable wholes is a view from the outside that generates

coherence for the purpose of understanding and control’ but is a reductionist

sociology of culture. However, the Equality Act demonstrates once again the

failure of our law to engage directly with culture.

There is however, hidden within the Equality Act, a provision that might support,

very indirectly, some idea of ‘cultural equality’ within the criminal justice system.

Under S149 (1) a Public Authority must, in the exercise of its functions, have

due regard to the need to :

• eliminate discrimination

• advance equality of opportunity between persons who share a relevant

protected characteristic and persons who do not share it

• foster good relations between persons who share a relevant protected

characteristic and persons who do not share it

and S149 (6) states that compliance with the duties in this section may involve

treating some persons more favourably than others. If a cultural belief is a

‘belief’ within S10(2) of the Equality Act could this be binding on the courts and

other institutions within the criminal justice system? It’s a tenuous claim and in

any event we need to fit the culture-responsibility relationship into the concept

of equality whether culture is protected by statute or not.

In the context of multiculturalism equality has been addressed through the

group.

‘Liberal multiculturalism’ has at its core the values of freedom, democracy and

equality and identifies the need to move beyond guarantees of non-

discrimination and tolerance to the provision of ‘accommodation’ for minority

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groups through what Kymlicka terms ‘group differentiated rights.’214 This has led

to Barry’s attack on multiculturalism and his defence of one status of citizen so

that everyone enjoys the same legal and political rights. As we seek to

disengage from the idea of the group in our understanding of culture in section

2.2 it is necessary to take a similar position with regard to equality. But Crowder

argues that Kymlicka’s idea of compensation for undeserved cultural

disadvantage through group rights in fact establishes individual rights because

the group has no moral existence of its own. We are seeking through the

culture-responsibility relationship equality of individuals so that each and every

person’s actions are contextualized. Renteln states that the reason for admitting

a ‘cultural defence’ ‘…is to ensure equal application of the law to all citizens…

actions of defendants should be judged against behavioural standards that are

reasonable for a person of that culture in the context of this culture’. But these

things are seen as a threat to universalism.

Universalism stems from natural law principles and in its simplest form

recognizes that there are certain moral laws that are binding on all human

beings in all places at all times. Yet for centuries universal truths have been

challenged, for example by the Reformation in England that saw competing

religious claims of Catholics and Protestants and by Marxism in the late

nineteenth and twentieth century when moral values became secondary to

economic inequality. In modern times Cotterrell defines the universal standards

as respect for human dignity and the autonomy of others as individuals. 218

Multiculturalism challenges these universal understandings further, raising too

the fears of pluralism and relativism. We need to consider these perceived

threats so that we can overcome the thought that acknowledgement and

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acceptance of each of these is an inevitable consequence of the socio-legal

recognition of the culture-responsibility

relationship.

The culture-responsibility relationship in particular can give rise to fears of legal

pluralism. In section 1.2 we raised the idea of legal pluralism and made it clear

that the culture-responsibility relationship is intended to be firmly situated within

the criminal law and criminal justice system of England and Wales. Woodman

points out that ‘…English law has historically displayed a readiness to adopt

bodies of non-state law observed by sections of the population.’ In fact, our

common law was established by the Royal Courts and customary law was

allowed to run alongside it but when it comes to the criminal law it is fairly clear

that there has only been one legal system and that is state law. Notwithstanding

this Benhabaib argues that pluralist legal systems can be compatible with

universal values so long as there is egalitarian reciprocity, voluntary

selfascription and freedom of exit and association. In some ways it could be

argued that ‘cultural offences’ are a form of legal pluralism, applicable to all but

directed only at certain groups.

Even if we do not endorse legal pluralism we do have to recognize that

multiculturalism brings with it value pluralism. In 1914 Figgis referred to ‘…the

hurly burly of competing opinions and strange moralities’ in relation to the rights

of churches and 100 years later those competing opinions and moralities arise

from the social reality of multiculturalism. We have already argued for those

‘moralities’ to be considered as relevant to the behaviour of certain defendants

where there is a relationship between culture and responsibility and the alarm

bells of individualised justice may begin to ring.

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There are writers from the 1990’s, when academic discourse around the

‘cultural defence’ was rife, who raise a pluralist objection to it and who ask how

it can be fair to afford members of a minority culture a defence denied to

members of the dominant culture. But the opportunity to establish a culture-

responsibility relationship is denied to no-one. If recognition of the culture-

responsibility relationship strikes up fears of pluralism then it also make us wary

that we are embracing individualised justice. Black states that ‘…acknowledging

that something in an accused’s cultural background might justify an acquittal for

otherwise criminal behavior seems to be a step down the path to individualised

justice which corrupts the equal protection that should be offered by the criminal

law. In short it threatens anarchy.’224 However, if we move away from the idea of

a generally applicable ‘cultural defence’ then such fears can be assuaged

because we are addressing the culture-responsibility relationship in a nuanced

way, essentially searching for the link between culture and responsibility in

individual cases. Black and others overlook this essential link between culture

and responsibility because any allowances within criminal law (and of course

not necessarily such that would come even close to acquittal) could never be

based simply on background but would have to stem from a clear link between

that background and the behavior in question. Demian supports and makes this

point neatly in arguing, from an anthropological point of view, that the criminal

justice system is not interested in what culture is but for law and lawyers culture

is a ‘revelatory mechanism’ whereby the intentions of defendants are made

known because we do not need to ask ‘when is culture relevant?’ but ‘when are

intentions cultural?’ Blind justice is thought to equate to equality but in many

ways we are extending our understanding of responsibility to encompass

understandings of the individual and his accountability for the particular act in

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question and not just the act of which he is accused in isolation or his

responsibility generally. This ties into Fletcher’s explanation of accountability

discussed in section 2.3.

Lernstedt identifies the need for the criminal law to balance personal

blameworthiness against individualised justice. To achieve this a criminal trial

needs to ask two questions

• Does an action break the law? This is the same for everyone.

• To what extent is this defendant responsible?

This is where the culture-responsibility relationship comes in. There is a

balance between finding out everything about the defendant’s background and

blind justice, but there should be a minimum threshold of information that is

considered so that the yardsticks used in determining responsibility are put at

an equal distance from every defendant.

Parekh suggests that ‘…all justice is individualized justice in the sense that it

relates to this defendant, not anyone else, and to this action, and not one that

abstractly or superficially looks like it but is really quite different’. And

sentencing is always individualised. But, as Cotterrell argues, even

individualised justice can have different meanings. The aim of law may be to

treat like cases alike but ‘…the art of law is to judge reliably which are like cases

and which are unalike…to do justice is to categorise and to act consistently on

the basis of categorization.’ How might culture affect categorization? How

‘unalike’ does the multicultural criminal make a case? One suggestion is to

assess the ‘cultural difference of the accused’ by looking to the law of the

country of origin and to offer a defence if the conduct is not illegal in that

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country. This seems a much more objective approach to individualised justice

but what strength must there be in the link with the country of origin? And it

opens itself to accusations of ‘othering’. Hallevy’s idea is based upon migrants

or refugees who could still claim a stronger understanding of the law elsewhere

but the difficulty of establishing the link would still remain.

‘Othering’ and essentialising arise from an ‘us’ and ‘them’ mentality and Uberoi

and Modood argue that ‘essentialism is one of the most important themes in

postmulticultural literature.’ The tendency to essentialise however goes hand in

hand with the perception of cultures as bounded groups, a myth that we have

tried to move away from in our fluid understanding of cultures summarized

usefully by Benhabib as ‘…constant creations, recreations, negotiations of

imaginery boundaries between ‘we’ and ‘other’.’232 We are moving away from

the idea that group traits are relevant because the criminal law is ultimately

concerned with individual responsibility and not from endorsing the views of

Renteln and Valladares that ‘…members of groups do share common

characteristics…individualised justice based on group traits may be necessary

to safeguard the rights of individual defendants.’

Chui takes a highly philosophical approach, situating her arguments against the

cultural defence in the realm of the historical management of ‘difference’ and

seeking to ‘…legitimate cultural imperatives while rejecting the metaphysical

construction of Asian difference’. She warns against the acceptance of the

‘cultural defence’ (on the basis of exclusion or othering of minorities) and

against its rejection (on the basis of forced assimilation) introducing instead a

hybrid position that allows for cultural evidence to be admitted if relevant to the

defendant’s state of mind. This has the potential to provide ‘individualised

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justice’ (based on ignorance of the law or deeply ingrained cultural values)

within ‘…a criminal law whose defences are a product of the same culture as

the defendant’. Chui is of course recognising the essential culture-responsibility

relationship, although her aim is narrower in demanding that the identity of

Asian American women be individually constructed and not essentialized. Here

there is subtle reference to the work of Crenshaw and the idea of

intersectionality. Chui expresses doubt in the workability of her own hybrid

position, concerned (along with D’Hondt) that raising culture shifts the merits

onto the focus of the defendant’s culture and not the relationship between the

defendant’s actions and his state of mind and it is questionable whether the

inclusion of cultural evidence can ever ‘…allow for uncertainties and unknowns

and identities [to] be

constructed, not essentialised’.236 We have to guard against essentializing and

we need to avoid the claim that a ‘cultural’ act is normative within that culture.

The culture-responsibility relationship can be effective in this.

A close reading of Volpp’s work reveals, rather than an endorsement of the

freestanding ‘cultural defence’, a dismissal of it as a non sequitur. She asserts

that in American courts any defendant is entitled to raise social context

evidence and questions why, when attorneys offer cultural explanations, we

assume ‘…immigrants to be the beneficiaries of a special treatment that is

tolerated as a necessary concomitant of the pluralistic values of

multiculturalism’. Furthermore, her work can be interpreted as being intolerant

of the narrative surrounding the cultural defence debate because these

narratives ‘…reinforce a preexisting presumption that misogynist acts are typical

of and unique to certain immigrant cultures’. Notwithstanding her lack of focus

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on the ‘cultural defence’ itself her contribution is valuable in placing the dialogue

in the wider context of the social construction of ‘the other’, notably the

construction of problematic behaviour of people of colour as cultural as

opposed to the problematic behaviour of the white majority as an ‘…isolated

instance of aberrant behaviour’. She calls upon the relationship between

nationalism, gender, sexuality and race to explain this construction, exploring

the idea that the female body is the nations symbol of honour and purity, serving

as ‘…the boundary marker[s] of the

nation’.241 In this way the nation can consolidate its identity by projecting beyond

its own borders the sexual practices or gender behaviours it deems abhorrent.

D’Hondt raises concerns about how ‘…minority cultures are represented in

cultural defence discourse, the collective abnormalisation and stereotyping to

which they are subjected and the way in which the agency of individual

members is erased.’ Today we have much greater awareness of this

stereotyping and understand why it must be avoided and so the more

interesting point is the concern about the erosion of agency. D’Hondt however

seems preoccupied with questions of agency being based on ‘membership’ of a

particular cultural group (reiterating the concerns of Demian and Renteln that

the culture of the legal system is invisible) when what we are concerned with in

exploring the cultureresponsibility relationship is the question of establishing the

influence of culture on individual agency and thus attributing responsibility.

As seen above, Phillips too decries the ‘stereotypical representation of the non-

western other’ that the ‘cultural defence’ may allow and is highly critical of the

fact that, outside of feminist circles, principles of gender equality are being used

to demonise minority cultural groups but she objects to the ‘cultural defence’ on

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the basis that individual agency is eroded. She is critical of the way that

members of minority groups are ‘…represented as driven by their culture and

compelled by cultural dictate to behave in certain ways’. It is this perception of

the ‘stereotypical other’ (submissive women, coercive parents) lacking in

agency that contributes to Phillips’s cry for ‘multiculturalism without culture’,

whereas defensible multiculturalism acknowledges human agency. Foblets and

Renteln assert that although there is concern that the ‘cultural defence’ is ‘…

predicated on the notion that cultural factors determine the behaviour of legal

actors’ there now seems to be agreement that it is ‘…based on the idea that

culture

predisposes individuals to act in ways that conform to their cultural upbringing’.

So many of these concerns can be assuaged by the shift from the cultural

defence’ to the culture-responsibility relationship. Similarly, concerns of cultural

relativism can be alleviated by a focus on the culture-responsibility relationship

with its commitment to the individual rather than the group.

As a final thought on this, culture as a way of explanation need not necessarily

be racially set. For example, there is the idea of a culture of honour in the

Southern States of the US which emerged in the eighteenth century with the

arrival of Scots or Irish immigrants and their Celtic cultural values based on Lex

Talionis. Doucet et al claim that this culture of honour has been passed down

generations for hundreds of years and competes with claims of higher

temperatures in offering explanations for raised levels of violence in the

Southern states.

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Feminism versus Multiculturalism

We know that the concept of the ‘cultural defence’ emerged in the 1980’s and

early literature emanated almost exclusively from writers considered by others

or self-identifying as feminist so that for a long time commentary on the ‘cultural

defence’ appeared inextricably linked with the issue of gender equality. The

feminism versus multiculturalism debate gained momentum during the 1990’s

and feminist literature of that time displayed firm resistance to the idea of a

freestanding ‘cultural defence’. However, there were calls for criminal justice

systems to ‘…begin to accommodate the seemingly irreconcilable goals of

feminists and multiculturalists’. Okin (although not addressing the ‘cultural

defence’ directly) was perhaps responsible for opening the broad dialogue on

the tensions between gender equality and multiculturalism in her 1989 book

Justice Gender and the Family. Ten years later, in asking the question Is

Multiculturalism Bad for Women? and in asserting strongly that ‘…most cultures

have as one of their principal aims the control of women by men’ it is clear that

she was subscribing to two feminist hypotheses, neatly summarized by

Phillips. 250 Firstly, most cultures are ‘suffused with gendered practices and

ideologies that disadvantage women in comparison to men’. Secondly, when

claims are made on behalf of culture ‘the benefit of those claims often appears

to be in the interests of more powerful men’. Whilst there is some agreement

with

Okin’s perception of the implications of multiculturalism for women (for example,

Phillips who argues that cultural evidence should be excluded from the

courtroom on the basis that it ‘reinforces patriarchal power’), Phillips claims that

Okin loses credibility because of her use of ‘eclectic examples from

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sensationalist newspapers’ in attempting to verify her claims, a point made in

section 1.1 in relation to Renteln’s work and the ‘cultural defence’ more

generally.

Similarly, Renteln dismisses Okin’s work as ‘…an attempt to trivialise the

cultural

defence by associating it mainly with female genital cutting and forced

marriage.’ Volpp is critical of Okin for relying on a ‘caricature’ of immigrant

communities and for adopting problematic notions of both feminism and

multiculturalism. Okin’s feminism is interpreted by Volpp as ‘colonialist’

feminism whereby liberation of women from the ‘east’ is seen as desirable in a

spirit of colonialism (along with education, The Rule of Law and Christianity).

This ideology now attracts heavy criticism on the basis that ‘other’ women are

‘always/already victim’.256 Okin’s multiculturalism is thought by Volpp to

resemble ‘crude cultural relativism’, indefensible in that it assumes a

homogenous (American) monoculture and overlooking the fact that ‘…valuing

difference does not destroy our ability to judge among difference.’257 According

to Volpp the clash between multiculturalism and feminism as constructed by

Okin relies on the assumption that the western domestic scene is egalitarian

and empowering whereas minorities are ‘…huddled in the gazebo of group

rights preserving the orthodoxy of their distinctive cultures in the midst of the

great storm of western progress’.258 The assumption is made that western

liberal values will lead to their salvation. Nonetheless, as well as highlighting the

clash between multiculturalism and feminism, Okin’s claims set the scene for an

ongoing polarized debate on the extent to which the ‘cultural defence’ should be

allowed.

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Rimonte is arguably least tolerant to the ‘cultural defence’, seeing it as a

mechanism for excusing inexcusable behaviour and as a means of promoting

‘culturally sponsored violence against women’ but her work can be criticized for

being single tracked and focusing narrowly on the potential for the ‘cultural

defence’ to create, in effect, ‘victimless’ crimes through the decriminalization of

violence against women.259 This is evidenced in her narrow definition of culture

as ‘…a body of beliefs, ideas and ideals held by an ethnic group about the

nature of women and men and their roles and relationships’ (seen in section

2.2) despite

her acknowledgement of the work of Geertz and other anthropologists in

recognizing the shaping force of culture more generally.

Although recognizing the potential conflict between feminism and

multiculturalism, at the heart of her arguments Maguigan is more concerned

with the equality of treatment for minority groups. She rejects a freestanding

‘cultural defence’, seeing the debate surrounding it as theoretical (on the basis

that most trial judges are never confronted with it although this is something we

dispute in an era where population movement continues to increase) and as

obscuring ‘…the real practical problems of achieving reform goals that appear

to be in competition with each other’, that is feminism and multiculturalism.

Whilst the above considers the clash between multiculturalism and feminism in

broad terms with an implication that it is the use of the ‘cultural defence’ by male

offenders to mitigate acts of violence against women that is objectionable, it is

perhaps worth emphasizing that there is a second strand to the ‘cultural

defence’ and that it is significant in interpreting the acts of female defendants.

There has long been an argument that the ‘cultural defence’ is only available to

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women when they conform to the stereotype of the non-western subservient

wife. Phillips analyses the case of Bibi (and Ahluwahlia, as seen above) to

substantiate this point. Zoora Shah, referred to by the court as an ‘unusual

woman’ in her trial for the murder of an abusive partner is also illustrative here

because Shah did not create a good impression in the dock and the

construction of her persona by prosecuting counsel during her appeal against

conviction was damaging. 263 Carline construes the label ‘an unusual woman’ as

instrumental in the failure of Shah’s appeal because there was a ‘contravention

of culturally accepted gender and racial scripts’ in that description. However, it is

important to recognize that this same stereotyping applies to women of all

colour and that there has long been a perception that women in the criminal

justice system are ‘mad or bad’ whilst the wrongdoings of male defendants are

socially caused.

Phillips raises more broad reaching difficulties with the concept of the ‘cultural

defence’ but in turn warns against the refusal to acknowledge cultural diversity

and tries to reconcile the multiculturalism versus feminism conflict in her book

Multiculturalism Without Culture which is based on the contention that

‘…multiculturalism can be made compatible with the pursuit of gender equality

and women’s rights so long as it dispenses with an essentialist understanding of

culture’.266 This is undoubtedly true and deeper understandings of the social

reality of twenty fist century multiculturalism and indeed an emphasis on the

relationship between culture and responsibility should overcome this

essentialist argument.

The ‘cultural defence’ has played its part in the twenty five year old dialogue

surrounding the clash between multiculturalism and feminism. During that time

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ideas have evolved so that our understandings of the implications, both

negative and positive, of the defence have broadened. In questioning the

justifiability of the ‘cultural defence’ today we are aware of its potential to

generate gender inequality yet alert to the need to move outside the strict

multiculturalism versus feminism paradigm. In 2001 Volpp called for a

constructive dialogue beyond these boundaries and asked us to see and

challenge multiple overlapping and discrete oppressions. The response of

feminists writers to this call has been to become almost silent. The clash

between multiculturalism and feminism has all but disappeared in twenty first

century academic literature and whilst interest in the ‘cultural defence’ is very

much alive debate surrounding it is no longer limited to these seemingly

irreconcilable viewpoints. It is not possible to know the reasons for this. Perhaps

Phillips’ ideas on ‘multiculturalism without culture’, along with the realization that

culture alone is not capable of explaining violence against women, have gone

some way towards addressing feminist concerns. Perhaps there is recognition

that feminism is also present in some minority groups. Whatever the reasons,

the feminist ideas discussed here lead to the conclusion that an understanding

of feminist theory and an acknowledgement of feminist concerns is crucial in

successfully formulating a theoretical framework of response to the culture-

responsibility relationship.

Parekh identifies 12 practices that most frequently lead to what Benhabib calls

‘clashes of intercultural evaluation’ and 7 of these have a gendered dimension.

These are FGM, polygamy, arranged marriage, marriage within prohibited

degrees of relationship, the withdrawal of Muslim girls from co-educational

schools, the hajib and finally and broadly the ‘subordinated status of women’.

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These concerns are still very much alive, awareness of many of them continues

to grow as just solutions are sought within the legal field. The

cultureresponsibility relationship, however, is not a threat to the ongoing search

for justice in these areas, partly because it stands some distance from them but

mainly because it is designed to be considered in isolation in relation individual

defendants. Deckha, in looking at whether ‘feminists committed to a theory of

intersectionality should welcome the introduction of cultural claims into law’

looks at the work of Rosemary Coombe who ‘insists that we abandon all

inclinations to establish one single relationship between law and culture’.

Coombe asks us to ‘…imagine culture as a practice of continually emergent

differentiation, contestation, negotiation and agency and to focus on the

scattered power relations that shape these actions and the dissent and

resistance they generate.’ In the culture-responsibility relationship we are

asking the courts to apply this ‘differentiation, contestation, negotiation and

agency’ to individual defendants of all genders to reach a view on whether

culture had a effect on behaviour. The inherent injustice for women within the

‘cultural defence’ can be diminished by the culture-responsibility relationship.

Concluding this section 2.4 we have established the relationship between

culture and responsibility and can see that the problems inherent within that

relationship are double edged- a reason to be wary of it but also a way of giving

it a purpose beyond that of the pursuit of individual (not individualised) justice.

2.5 Conclusion

The Chapter set out to explore understandings of both culture and responsibility

and to take these nuanced understandings forward in establishing the existence

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and importance of the culture-responsibility relationship. The aims of the

Chapter have been achieved.

We now understand culture to be fluid and complex, derived from the historical

interpretation and adaptation by a group of a number of possible influential

factors that an individual may adopt and adapt and that contribute to collective

and individual identity. We have moved away from the idea of a static and

bounded cultural group to focus on the way that culture is uniquely processed in

each individual case. It is this emphasis on the effect of culture on each

individual that sits at the heart of the culture-responsibility relationship.

Responsibility is now understood in terms of agency (capacity in terms of choice

and fair opportunity and in part character) and the limited place of culture in

influencing moral responsibility has also been considered. We have looked at a

range of possible ways in which culture can be said to affect responsibility and

in the absence of a scientific and definitive answer to the question ‘how does

culture affect responsibility?’ we have drawn the line somewhere around pre-

disposition but it must be emphasised that this is not a line that is etched in

stone and we must always be prepared to defer to evidence of a culture-

responsibility relationship in individual cases. The problems inherent within the

culture-responsibility relationship have been examined both to show an

awareness of their existence, essential particularly for making strong and

credible suggestions for a way forward in Chapter 5 and to argue that those

difficulties are in themselves reasons to further the cause of the culture-

responsibility relationship.

In a broader sense the Chapter has contributed to fulfilling the wider aims of the

thesis in distancing the culture-responsibility relationship from the ‘cultural

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defence’ and in emphasising the importance of the individual and of the

cultureresponsibility relationship at the time of the alleged offence because

culture should not be used as a tool to explain or legitimate a defendant’s

actions after the event unless we can see evidence of a genuine relationship at

the time of the act. Throughout the Chapter a sense that culture is a difficult

concept for the criminal law begins to emerge and this is something that we

need to be mindful of throughout the thesis.

At the start of the Chapter there is a quote from Lloyd who says that it is

‘beyond human power’ to attribute moral responsibility. This may be so but we

do have to be able to attribute legal responsibility and in undertaking this task in

a multicultural world we do need the culture-responsibility relationship. Whilst

the understanding of culture reached in section 2.2 can perhaps be legitimately

labelled as postmodern Cotterrell states that ‘…contemporary law - explicitly

constructed, particular and local in scope, and ever changing - might seem the

quintessentially postmodern form of knowledge and doctrine: not in any sense a

grand narrative, but the perfect pragmatic embodiment of contingency,

impermanence, artificiality, transience and disposability; its doctrine continually

adapted, amended, cancelled, supplemented or reinterpreted to address new

problems’. The culture-responsibility relationship fits within Cotterrell’s

postmodern description of the law. The next step is to take this specifically

nuanced understanding of the culture-responsibility relationship forward to the

practical realm and to examine how the criminal law and criminal justice system

of England and Wales have responded to it.

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CHAPTER 3 THE CRIMINAL LAW AND THE CRIMINAL JUSTICE SYSTEM

OF ENGLAND AND WALES

‘The stories that we tell to justify one state of legal affairs over another are

just that, stories.’

3.1 Introduction

In Chapter 2 understandings of both culture and responsibility were enhanced,

the existence and importance of the relationship (or the perceived relationship)

between them was established and the problems inherent within the

cultureresponsibility relationship were identified. Refined and specific

understandings of both culture and responsibility and of the relationship

between them are therefore brought forward to this Chapter. This Chapter has

two broad aims.

Firstly, it seeks to gather evidence to support and advance the hypothesis that

the culture-responsibility relationship has not been duly considered in theory,

practice or policy. Matravers states that ‘…any serious reflection on the cultural

defence* must be embedded in a more general account of criminal justice’ and

that ‘more general account of criminal justice’ is provided here by situating the

culture-responsibility relationship within the specific theoretical foundations,

substantive criminal law and criminal justice system of England and Wales, one

of the three distinct and defined parameters set out at the beginning of the

thesis to bound a contextually particular analysis of that relationship. This first

aim is achieved by searching for evidence of the presence of and engagement

with culture in general and the culture-responsibility relationship in particular in

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the substantive criminal law (the law on general defences, legislation creating

‘cultural offences’, decided cases and sentencing law and decisions) and in the

criminal justice system (The Police, The Crown Prosecution Service and the

Judiciary). Sections 3.3 and 3.4 report on the findings from that search.

Although the review of relevant legislation, decided cases and sentencing

decisions where there is a cultural dimension carried out for section 3.3 adopts

a doctrinal approach to legal research more generally, as described in Chapter

1, research for the Chapter takes a constructivist approach throughout, a

thematic search for culture and an assessment of the law’s response (or lack of

response) to it. The search for the presence of culture in the criminal law and

criminal justice system reveals minimal engagement between law and culture

and consequently it can be concluded that the culture-responsibility relationship

has not yet found a place in practice or policy. Yet the analysis of the

foundations of the criminal law set out in section 3.2 concludes that there is

flexibility within the established principles, values and systemic factors that

provide the theoretical grounding of our criminal law to accommodate that

relationship.

The second aim of the Chapter, therefore, is to move beyond this essentially

fact finding exercise and to begin to try to understand the reasons for this lack

of engagement between criminal law and culture, to consider how this apparent

resistance to culture might be overcome and where and how, in practical terms,

the culture-responsibility might find a place within our law. In other words, the

aim is to begin to form an answer to the research question how should the

criminal law of England and Wales respond to the culture-responsibility

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relationship? The recognition and acceptance of culture as a concept with

relevance to law is fundamental to establishing the credibility and essential

place of the cultureresponsibility relationship in modern thinking about criminal

law and to its accommodation within the legal system of England and Wales.

The cultureresponsibility relationship matters. It is relevant to contemporary

justice. It has not been given the attention that this thesis argues that it needs

and deserves and the current laissez-faire approach is inadequate and

problematic. The culture-responsibility relationship is not only a reality but a

necessary tool for achieving justice in the context of twenty first century

multiculturalism. The general and tentative approach to culture identified in this

Chapter needs to be followed through with clear, consistent and specific well-

reasoned responses to the culture-responsibility relationship.

3.2 Foundations of the Criminal Law

With no written criminal code our criminal law is a curious mix. Of course we

have some specific statutory offences and some common law offences and our

defences too are a mixture of both. Underpinning all of these things are the

fundamental principles and values and systemic factors that inevitably shape

the extent to which our specific laws can adapt at any time. They provide both

the theoretical grounding and the systemic conditions of possibility for the

current approach of our criminal law to the culture-responsibility relationship

and dictate the extent to which the law may be able to demonstrate flexibility in

the face of argument around the culture of the defence (or indeed the

prosecution) which may produce a particular way of seeing criminal situations.

But to maintain credibility these principles and values must resonate with social

reality. At the beginning of the twentieth century MacDonnell wrote that ‘…the

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strength of the criminal law is to be found in the general accord between it and

the public conscience’ and, even then, more than one hundred years ago, he

identified a disintegration in that harmony. Maintaining that harmony is more

challenging than ever in our multicultural society. At the end of that century in

1997 Dennis referred to the ‘critical condition of the criminal law’, critical

because of the piecemeal approach of judges (an assertion verified, though in

the narrow context of culture, through the analysis of decided cases and

sentencing decisions in section 3.3 below) and because of the ‘…growing

uncertainty as to the correct philosophical basis for criminal law reform.’ This

section examines the unique philosophical foundations of the criminal law of

England and Wales, its fundamental principles, values and systemic factors, in

the context of justice in a multicultural era but firstly the purpose of the criminal

law needs to be considered.

Purpose of the Criminal Law

There is great debate about the criminal laws’ purpose which falls beyond the

scope of this discussion. However, to understand fully the present argument

about culture and responsibility and to lay the foundations for the subsequent

analysis we need to look at some of these alternative ideas, particularly those

that enlighten our understanding of the culture-responsibility relationship.

Ashworth and Horder state that ‘…the chief concern of the criminal law is to

prohibit behaviour that represents serious wrong against an individual or

against some fundamental social value or institution’ but in many ways

Ashworth and

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Horder raise more questions than answers here. What is a ‘serious wrong’?

What are our ‘fundamental social values’? Perhaps overridingly, why should our

chief concern be the prohibition of certain behaviour? Going back a step, simply

put, in modern post-industrial times the criminal law has one overriding aim, the

maintenance of social order. To achieve this it needs rules and sanctions for

transgressions of those rules. In establishing those rules and sanctions a just

system of criminal law focuses on the prevention of harm, the attribution of

responsibility when harm is caused and punishment. These three ‘purposes’ are

achieved in turn through the creation of offences, the application of the law to

arrive at decisions on guilt or innocence and sentencing decisions. Before we

examine these identified purposes we need to be clear about two things in

particular that the criminal law should not be concerned with. Firstly, there are

references throughout the relevant literature to the preservation or protection of

culture and cultural rights. Renteln, for example, writes of the ‘cultural defence’

as a means of protecting cultural rights.7 In the ‘Pitcairn Case’ there was an

argument against prosecuting those suspected of sexual offences because the

island’s community, and thus culture, could not survive if a high percentage of

the able bodied males were found guilty and imprisoned.8 Secondly, the criminal

law should not be concerned with proactively furthering a policy of

multiculturalism. As Lernestedt says ‘…the question of how criminal law can

support multiculturalism is not the right one. It’s about the legitimization of the

application of the criminal law to individual concrete persons’. 9 The

cultureresponsibility relationship is concerned with the just attribution of

responsibility

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Celia Wells and Oliver Quick, Lacey, Wells and Quick Reconstructing Criminal Law: Text and

Materials (4th edn, Cambridge University Press 2010).

7Alison Dundes Renteln, The Culture Defense (Oxford, Oxford University Press 2005).

Renteln devotes a whole chapter to ‘The Right to Culture’ (Chapter 11) although she relates the

protection of culture to tolerance and questions ‘how much tolerance we should expect from

liberal democracies with regard to diverse cultural practices?’ (212). She sees the ‘cultural

defence’ as an extension of the individual’s right to culture. Although related to the protection of

culture, the correction of historic injustice in the multicultural context in for example Australia and

Canada is of course quite another matter.

8International law is rightly concerned with the preservation or protection of culture and

with recognising cultural rights but this should not be the role of the criminal law. International

measures include Article 27 of the UN International Covenant on Civil and Political Rights which

provides that ‘persons belonging to such minorities shall not be denied the right, in community

with members of their group, to enjoy their own culture…’ and the UN Declaration on the Rights

of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities.

9C Lernestedt, ’Criminal Law and Culture’ Chapter 2 in Kymlicka, Lernestedt and

Matravers (n 2) 19.

and, as the second ‘purpose’ of the criminal law identified here, that attribution

sits between the prevention of harm and punishment. However, as we

established in section 2.3, ‘responsibility’ as a concept is extended to include

the degree of responsibility that should attach to a particular defendant, that

degree being reflected in punishment at the sentencing stage.

The prevention of harm, or the ‘harm principle’, is widely accepted as the

backbone of the criminal law, or at least of the decision to create specific

criminal offences. It is, in Anglo-American legal thinking, the tenet of liberal

criminal theory under liberalism. Liberalism is

‘…a secular political morality which, in its currently deontological strains,

takes individual human beings as the primary units of ethical concern

and is fundamentally orientated towards safeguarding individuals’ liberty

and promoting their personal autonomy. It does this without denying the

socially-situated nature of the self or neglecting the appropriate demands

of distributive justice. As a public philosophy of government, liberalism is

committed to equal liberty, non-discrimination, freedom of thought and

conscience, toleration, pluralism, democratic accountability and the rule

of law.’

The emphasis of liberalism, as we saw in Chapter 2, is on individual autonomy.

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That autonomy is reflected in Mill’s ‘harm principle’ which advocates that ‘…the

only purpose for which power can be rightfully exercised over any member of a

civilized community, against his will, is to prevent harm to others.’ This principle

has been developed by legal theorists over the years and is generally accepted

as forming the basis of ‘criminalisation theory’. It works because, as Hornle

states

‘…it is the product of a down to earth, secular, functionalist and

consequentialist way of thinking and it rests on a liberal basis which values

individuals’ interests higher than communitarian ideals or the ideals of value

ethics or religion.’ The ‘harm principle’ was adopted and adapted in the

Wolfenden Committee Report in 1957 so that the purpose of the criminal law

was stated as being:

‘…to preserve public order and decency, to protect the citizen from what

is offensive or injurious and to provide sufficient safeguards against

exploitation or corruption of others, particularly those who are especially

vulnerable because they are young weak in body or mind or

inexperienced or in a state of special physical, official or economic

dependence.’

This adaptation seems simple enough, legislatures can legislate to prevent

harm, but it has implications for legal moralism through the reference to ‘public

order and decency’ and ‘what is offensive and injurious’. The ‘harm principle’

has become complicated too, both as a result of philosophical re-working and

the social reality of our multicultural world, and two relevant but challenging

questions emerge. Firstly, what is ‘harm’? Mill sees harm as ‘hurt, damage, loss

and injury’ and that has traditionally been conceptualized within the physical

realm as evidenced by the Oxford English Dictionary definition of harm as

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‘physical injury, especially that which is deliberately inflicted.’ ‘Harm’ today is at

times given a wider interpretation, with for example, the offence of ‘coercion and

control’ in S76 of the Serious Crime Act 2015 recognising emotional harm in the

context of domestic violence. Von Hirsch is among theorists who advocate that

‘harm’ alone is not enough. We also need ‘wrongdoing’, a ‘dual-element

account (wrongfulness plus harm).’ This becomes particularly problematic in the

context of multiculturalism as both elements become open ended, not only what

or who defines what is ‘harm’, but what or who defines what is ‘wrongdoing’.

Surely harm and wrongdoing are morally contingent so that understandings of

these concepts can never be value neutral. For example, legislation making

female genital mutilation a criminal offence assumes that it is harmful but there

are those in academia, medicine and society who justify the practice and

disagree with commonly held, perhaps majoritarian beliefs around the harm in

the practice (discussed in 3.3 below). Does that then lead us back to the idea of

‘legal moralism’? Duff identifies a ‘modest’ legal moralism whereby there can be

criminal prohibition of a wrong provided that the wrong is a public wrong

requiring a collective response because ‘…it is necessary to single out a smaller

subcategory of public wrongs from the larger category of morally objectionable

conduct in general.’ Hornle argues that this approach ‘…blurs distinctions

between rather different collectives; moral communities (which can be religious

communities) and their norms; civil society and shared public values; the state

and legal norms’ but it is perhaps the most workable solution in a multicultural

society, so long as consensus can be reached on what is ‘harmful’ and what

makes a ‘public wrong’.

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Attempting to sidestep these moral dilemmas, Husak perhaps adopts the most

pragmatic and philosophically simple approach, the ultima ratio principle, which

advocates that criminal law should only be resorted to when there is no other

way to deal with the problem. This is because the criminal law is different and

‘…must be evaluated by a higher standard of justification because it burdens

interests not implicated when other modes of social control are employed.’ But

even here the question of identifying what is a ‘problem’ (or in other words

‘harm’) and what is not remains and the principle was certainly disregarded in

the criminalisation of forced marriage where successive government reports

and interested parties supported various alternatives, including immigration

restrictions, education and the strengthening of civil remedies as the most

effective means of prevention.

Renteln makes an attempt to consider the harm principle specifically in the

context of multiculturalism suggesting that individuals should have the right to

follow cultural traditions unless these ’…cause irreparable physical harm to

others’ and that ‘…in the absence of any threat of serious harm liberal

democracies should not interfere with cultural traditions.’ If defining ‘harm’ is

difficult what is ‘irreparable’ or ‘serious’ harm, especially outside of the physical

domain? Renteln engages with this difficult question in asking how we separate

acceptable and unconscionable traditions. Whilst she is open to both Poulter’s

human rights framework (if a cultural tradition violates a human right then it

should not be permitted) and Parekh’s ‘dialogue device’, she is critical of the

latter.

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Interpreting Parekh’s dialogical approach as the need for ‘…a minority

spokesman who will engage in dialogue with representatives of the majority

about cultural practices that offend ‘operative societal values’…[and] explain

how the tradition is authoritative, central to the way of life of the ethnic minority

group and, in general, desirable’ and thus based in offence to majoritarian

values she perhaps misinterprets what Parekh is trying to achieve through

dialogue and she adheres firmly to her ‘harm principle’, that is the principle of

‘irreparable physical harm’ discussed above so that understandings of harm in a

multicultural context remain undeveloped.

This leads to the second question. What or who is the criminal law protecting?

Hornle sees the potential objects of protection as being either collective (moral

values or the legal order, for example) or individual. The Wolfenden Report

seems to focus on the individual but in the aim of ‘preserving public order and

decency’ there is cognition of collective harm too. In this thesis the emphasis is

on the individual as we search for the deepest understanding of the relationship

between culture and legal responsibility, for true blameworthiness, in each and

every unique case. It makes sense therefore to embrace liberalism with its

emphasis on the individual but in the field of the socio-legal perhaps collective

harm (or the potential for collateral collective harm if we do not pursue the

protection of the individual) and individual harm are not necessarily so distinct.

What we are faced with here is the ongoing communitarian-liberal debate in

political theory. Communitarian critics of liberal theory, such as Taylor,

recognize that ‘…liberal theory is committed to an abstract, a-contextual,

dissociated, ‘atomistic’ conception of self which is both completely unrealistic

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and ethically debased, in being estranged from its social environment and the

fabric of interpersonal relations woven into and enriching real lives.’ In other

words, even if we prioritise the individual we cannot ignore his social, including

his cultural, context. This deviates from Kant’s classic non- communitarian

statement where the criminal law should reflect ‘…the sum of conditions under

which the choice of one can be united with the choice of another in accordance

with a universal law of freedom.’ In the culture-responsibility relationship we

can never veer too far towards the abstract individual because we are always

mindful of his cultural context. If we agree that we are concerned with

prevention of harm to the individual, what, pertaining to the individual are we

protecting him from? There are theorists who believe that we are protecting the

rights of the individual in preventing harm; there are those that believe that we

are protecting an individuals’ ‘quality of life.’ In essence we are protecting an

individuals’ liberty so that the individual is ‘…the primary unit of ethical concern’

but as a modification to liberal theory perhaps we can contemplate the

individual and his autonomy (considered in the wider sense of Raz’s autonomy

which adds to Kant’s intelligent moral agent the social opportunities to ‘live your

life according to your own lights’) as a whole within his unique social and

cultural context and bear in the mind the risk of collective harm if we allow harm

at the individual level.

Applying liberal criminal theory in a multicultural world is never going to be easy

because, as raised though not fully resolved by Renteln, Poulter, Parekh and

others, how can the ‘harm principle’ accommodate competing values? There is

the conflict between criminalising wrongs that infringe liberty and the liberals’ ‘…

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existential commitment to pluralism and tolerance in matters of faith thought

and conscience’ that should preclude criminalisation of, inter alia ‘…unorthodox

lifestyle choices.’33 Matravers makes a strong statement against criminalisation

in arguing that ‘…a liberal state in circumstances of pluralism ought not to

criminalise- or ought otherwise to make space for- (at least some) practices that

‘belong’ (in some sense or other) to the various cultures and conceptions of the

good of its citizens.’ However, Wells and Quick point out that there is a ‘political

impulse’ to ‘pass a law against it’ whenever a social problem appears. When it

comes to multiculturalism we also have to be mindful to differentiate the

‘…politician’s honest reliance on remote harm arguments and cases where

‘remote harm’ serves to rationalize proposals which are driven by resentment

against certain groups.’ This takes us back to the phenomena of ‘moral panics’

and the creation of ‘suspect communities’, a ‘sub-group of the community that is

singled out for state attention as being ‘problematic’.’ To be workable we do

have to try to avoid entering the moral dimension and, like Matravers, Renteln

argues for maximum accommodation questioning why minorities should have to

justify their cultural traditions when the dominant culture does not have to.38

Once again, it is dialogue that can help us to find a way through these conflicts

and in Chapter 4 the work of Parekh and political philosophers committed to a

dialogical approach will be explored further.

Even outside of the multicultural arena the harm principle has its’ critics, with

Roberts identifying both its incompleteness and indeterminateness, incomplete

because it ‘…offers no rationale for criminal prohibitions that are not concerned

with protecting liberal values’ and indeterminate because’ …it seldom offers

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comprehensive or unequivocal guidance to policy makers, legislators, judges,

lawyers or other criminal justice practitioners and officials who aspire to

principled decision making when confronted with difficult choices in their

professional lives.’ It is attacked too for being ‘consequentialist’, a ‘…future

oriented view of what is blameworthy about a certain act. The notion of harm

necessarily has this forward looking character.’40 Criminalisation (discussed in

the context of ‘cultural offences’ in section 3.3) in turn is necessarily forward

looking. On the other hand the attribution of responsibility is always backward

looking. The attribution of responsibility is the second ‘purpose’ of the criminal

law that we have identified and the research question at the heart of this thesis,

how should the criminal law of England and Wales respond to the relationship

between culture and legalresponsibility?, is central to the quest for just

attribution in a multicultural world and so is not addressed here .

The third purpose is punishment. The Criminal Justice Act 2003 S142 lists the

punishment of offenders, the reduction of crime, the reform and rehabilitation of

offenders, the protection of the public and reparation as ‘purposes of

sentencing’. Von Hirsch and Roberts are critical of S142 for its ‘smorgasbord’

approach which does not prioritise any one aim over another. Yet retributivism

is clearly understood to be the dominant ideology in the criminal justice system

of England and Wales today. This goes back to Kant’s orthodox subjectivism

which ‘…accords individuals the status of autonomous moral agents who,

because they have axiomatic freedom of choice, can fairly be held accountable

and punishable for the rational choice…they make.’ In other words, moral

agents who choose to commit crimes are ‘deserving’ of punishment. For Kant

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the only thing that matters is the agent’s ‘act’ and he must receive his ‘just

deserts’ for carrying out that act and infringing the autonomy of the other. This

standard model of punishment does not seem to allow for individual, including

cultural, accommodation, not least because it embraces proportionality so that

persons convicted of comparable offence should receive comparable

punishment. But retributivism and its emphasis on proportionality can be

challenged in a way that may allow for culture to influence punishment.

In Chapter 2 we looked at Norrie’s re-examination of Kant’s classic orthodox

subjectivism in the context of responsibility but Norrie’s relational challenge

extends too to retributivism as a basis for punishment. In Law, Ideology and

Punishment Norrie points out that the revisionist ‘English Hegelianism’ of the

late nineteenth century that extended into the philosophy of punishment until

the 1930’s, rejected retributivism as practically useless, backward looking and

cruel. This was because it was based on liberalism’s abstract individual. In

Punishment, Responsibility and Justice Norrie furthers this in stating ‘…if

punishment remains a valid phenomenon within a relational approach it must be

reconciled with an understanding of the ways in which others, including

potentially the punishing agency, are also to blame.’ He rejects the modern

revisionist attempts of other twenty first century theorists because ultimately

they retreat to Kantian philosophy and the Kantian individual who has autonomy

and control and is a responsible choosing being. Engaging in particular with

Moore, who sees retributivism as the heart of Anglo-American criminal law,

Norrie criticizes his ‘emotivist theory of punishment’ based on the blameworthy

individual, a choosing being and formal legal subject whose actions are judged

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in isolation from the substantive moral context in which she acts. Norrie is

critical too of Duff’s ‘…dialogic and communicative view of punishment which

embraces the individual and her community’ because although it can be

described as communitarian it favours the community and relies on the right of

the community to retribution. 48 Norrie offers instead, in line with his ‘entity

relational standpoint’ an idea that ‘…links the agent dialectically with the social

and moral context of her actions.’49 Applying this to retribution Norrie is aware of

accusations of deconstructionism and that if he is to argue so forcefully against

retributivism he needs to find an alternative basis for punishment. Norrie’s work

is well reasoned and compelling, and not simply because it may in time be

adapted to make room for the culture-responsibility relationship (both in the

context of guilt and punishment), but because modern socio-legal thinking is

leading us more and more to question the feasibility of the abstract individual.

Wilson seems to offer an adaptation to Norrie’s relational approach in

recognising that ‘…occasionally liberal thinking about criminal justice is

prepared to confront this notion of relational responsibility when the moral

identity of the subject is patently too fragile to sustain the weight of responsibility

that retributive justice presupposes.’ He looks at the perpetrators of the James

Bulger killing, a case example used too by Norrie to justify relational

responsibility. But when is a subject ‘too fragile’ to bear that burden? Is a

culturally driven defendant or a defendant with a culturally different moral

outlook sufficiently ‘fragile’? Wilson does not really further the relational aspects

of this and perhaps his reasons for moving away from retributivism are closer to

Tonry’s ‘deep disadvantage’ mitigation where ‘…judges and juries should have

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greater leeway to acquit defendants on the basis of deep disadvantage and that

judges should be encouraged to mitigate sentences for that reason when they

believe it appropriate to do so.’ Tonry’s focus is really the question ‘can deserts

be just in an unjust world?’ Although most of the debate about a ‘social

adversity defence’ centres on the particularities of sentencing within the US

criminal justice system it has support in the world of legal philosophy from Hart,

who in discussing defences states that we ‘…should incorporate as a further

excusing condition the pressure of gross forms of economic necessity.’ It also

centres largely on economic disadvantage though Tonry refers directly to

‘subcultural pressures’ to commit offences as part of that ‘deep disadvantage’.

No one seems to take culture itself as a factor of ‘deep disadvantage’ perhaps

because there might be implicit in that

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a hierarchy of cultures, a kind of cultural relativism. Tonry summarises a number

of ways in which theorists have reconciled ‘deep disadvantage’ with retributively

based punishment but his own way through is to adopt a limiting retributivist

position and recognize ‘deep disadvantage’ as a mitigating factor in sentencing

so that the offender’s lesser moral culpability is recognised. If we substitute

‘culture’ for ‘deep disadvantage’ and borrow Tonry’s ideas on this we may have

a means of accommodating culture coherently and systematically, where its true

relationship to responsibility has been established at the guilt/innocence stage,

within the criminal justice system.

More broadly, there is other academic opinion that argues against retributivism

as a justification for punishment. The ‘Justice Without Retribution Network’, for

example, is a collaboration between the universities of Ghent, Aberdeen and

Cornell and its most recent conference explored the impact of neurobiological

determinism on retributive punishment. 54 Ashworth and Horder argue that ‘…

courts have tended to adopt a much looser notion of responsibility at the

sentencing stage than at the liability stage.’55 This is because the substance of

the criminal law itself needs to display strict standards whilst ‘… the exculpatory

force of preceding or surrounding circumstances’ is allowed sometimes in

sentencing. 56 However, their meaning of responsibility here suggests not

responsibility in its’ strict sense, as described in Chapter 2 but responsibility as

punishment at the sentencing stage. The extent to which culture can be

considered part of these preceding or surrounding circumstances has yet to be

54 Retribution Network’ <http://www.justicewithoutretribution.com/ > accessed 10th September

2018. The latest conference of this group was held April 2018 on the theme ‘Neurobiological

Determinism and Intuitions About Retributive Punishment’. 55 Ashworth and Horder (n 5) 19.

138

56 19.

explored by the criminal courts in any depth but, as will be seen in Section 3.3

below the ad hoc approach of the courts to culture in sentencing has resulted in

some interesting decisions. Of course, Chapter 2 argued that it should indeed

be a part of the surrounding circumstances.

To summarise, we have identified the overriding aim of the criminal law as being

the maintenance of social order and this is achieved in three ways in the

criminal justice process, ciminalisation (for the purpose of preventing harm), the

criminal trial (for the purpose of attributing responsibility) and sentencing

following findings of guilt (for the purpose of punishment, the form of which may

too reflect the attribution of responsibility). Each one of these purposes is

challenged by the existence of culture as definitions of harm, disputed in moral

philosophy, become ever more complex, retribution as a justification for

punishment is questioned and most importantly we call for the attribution of

responsibility to be reconsidered in the context of culture.

Principles, Values and Systemic Factors

Our criminal law consists of rules, both in statutory form and at common law

and a number of hidden but underlying principles. Perhaps the fundamental

principle or standard in western liberal democracies is the Rule of Law. Much

has been written around the concept and its application but, originally

conceived as limit to the power of the sovereign, in essence the idea is that the

law must be publicly declared, with prospective application and there must be

ibid

139

generality, equality and certainty. In The Rule of Law Bingham neatly identifies

and summarizes eight principles of governance including (2) questions of legal

rights should be resolved by the law and not by the exercise of discretion (3) the

law should apply equally to all except where objective differences justify

differentiation. Put simply he suggests that we always need generality and

certainty but perhaps equality becomes a more open concept in the reference

to ‘objective differences justifying differentiation’ and this is encouraging in the

context of culture. The cultureresponsibility relationship challenges the Rule of

Law and, more broadly, Raz recognizes that one of the theoretical challenges of

multiculturalism is ‘…how to combine the truth of universalism with the truth in

particularism.’ Does Bingham’s interpretation of the equality requirement of the

Rule of Law with its ‘objective differences’ proviso encompass this recognition

or truth of particularism? Raz suggests that, deriving from Aristotle, the

universal and particular can be complementary rather than antagonistic and in a

multicultural world we are simply asking for ‘a new moral sensibility’. This

seems to resonate with Kahn’s ideas. He argues that the Rule of Law is ‘socio-

legal’, it is not ’…a matter of revealed truth nor of natural order. It is a way of

organizing a society under a set of beliefs that are constitutive of the identity of

the community and of its individual members’, including of course the

multicultural criminal. These ideas make way for a Rule of Law that is more

flexible than perhaps traditionally thought. Sarat and Kearns say that ‘law in

theory knows no culture and

recognizes no identity’ but as we saw in Chapter 2 the link between culture and

law is inescapable and Cotterrell and Rosen are convincing in their arguments

as to why this is so. As Cotterrell states ‘what was once taken for granted as

140

law’s uniform cultural foundation, and so did not need generally to be mentioned

in legal analysis, has now become explicit and problematic.’ This is perhaps

narrower than his assertion that law exists in ‘specific times and places’ and that

therefore for legal scholarship to be realistic ‘…it must be in touch with law’s

changing socio-political conditions.’ Nonetheless multiculturalism and the

ensuing cultural mix must be part of this wider socio-political domain. It’s not

about legal pluralism or individualised justice but about how culture and its

relationship with legal responsibility can be accommodated within that law.

Norrie (in arguing that motive is a more just marker in the attribution of

responsibility than intention) makes a distinction between equality at the guilt

stage and equality at the sentencing stage. He acknowledges that individual

particularity threatens equality under the Rule of Law ‘…but the administration

of such equality through formal legal categories at the conviction stage is so

morally inadequate that it can only survive on the basis that individuality is

allowed in through the back door of mitigation.’ It is questionable whether there

should be a ‘back door’ in a just society and if the sentencing stage is the ‘right’

place to accommodate motive then this should be made explicit. Renteln

argues that the equal application of the law requires us to focus on the actor as

well as the act and the motive as well as the intent.

When it comes to generality and certainty Wells and Quick refer back to

McBarnet’s scepticism about the ability of the Rule of Law to generate ‘objective

determinations’ of law and argue that although the law’s ideology is grounded in

the Rule of Law its practice cannot necessarily live up to the ideology because

‘truth’ is arrived at via ‘the power of cultural assumptions’ which shape the

ibid

141

interpretation of evidence. Therefore ‘…law is storytelling’ and outcomes are

unpredictable as the law deals with ambiguities, distortions and indeterminacies

in coming to judgments because the criminal law is based in ‘…historical forces

external to law itself.’69 In this way we can see some space within the laws

foundations for movement to accommodate a culture-responsibility relationship

because today’s multicultural era will become tomorrow’s ‘historical force’.

It would be wrong to consciously move away from a commitment to generality,

equality and certainty but perhaps these standards can be achieved with careful

and creative thought about how to accommodate the culture-responsibility

relationship in contemporary criminal law and criminal justice. Returning to the

three disparate cases discussed in section 1.1, they demonstrate a particularist

approach but not a considered approach. In fact, in the ‘Pitcairn Case’ the

‘cultural critique’ offered by the media was never given as much space in the

legal arguments. They are simply reactive responses to specific phenomena

deemed ‘cultural’. Somehow there is a feeling that ‘justice’ is missing.

Dauvergne writes of the new understandings that migration may bring to

sovereignty and the rule of law in globalizing times which reinforces

Fitzpatrick’s view that the ‘…law, as the rule of law, has to be ever-responsive

and indeterminate, capable of extending to the infinite variety which constantly

confronts it.’

There are a number of other principles and values within the criminal law that

could be explored here. Norrie refers to these as ‘liberal values’ and

‘requirements’ and includes broad concepts such as accessibility and fairness in

142

his list of what these could encompass. Ashworth and Horder call these

‘aspirations’. This is an attractive label that captures the ultimately non-binding

nature of these principles and values but perhaps undermines their strength.

Some are particularly relevant to the culture-responsibility relationship and

these will be examined in turn. In the House of Lords judgment in Woolmington

v DPP

ibid

143

in 1935 the ‘golden thread’ of English law, the presumption of innocence, was

clearly established. The Woolmington case itself centered around the mens rea

of a husband who shot and killed his wife although he had only intended to

show her a gun which he meant to use to kill himself. The act of killing was not

in dispute but his state of mind was and Lord Sankey made it clear that it is

always for the prosecution to prove the guilt of the defendant. This is relevant in

criminal trials where the culture of the defendant may be relevant to mens rea,

in the search for

Lernestedt’s ‘true blameworthiness’ not least because of the moral panics that

can be associated with the ‘other’.

Another principle that needs raising is ignorantia legis neminem excusat,

ignorance of the law is no excuse, because as we saw in section 2.1 it is

sometimes argued that a defendant should not be responsible because he does

not know that his actions contravene the criminal law of England and Wales.

There is no legislative statement to the effect that ignorance of the law is no

excuse but it comes from Blackstone and is reiterated in common law.

Ashworth and Horder state that the maxim is too strong and indeed there have

been cases where ignorance of the law has led to a defence in a cultural

context. In R v Bailey and R v Byfield defendants in both cases were acquitted

on charges of having sexual intercourse with girls under the age of 16 because

it was ‘normal’ for such relations to take place in the cultures from which they

came and they had not had time to become acculturated. In Alhaji Mohammed v

Knott the Court of Appeal revoked a care order (in care proceedings following

the marriage of a 13 year old Nigerian girl to a 26 year old

Nigerian man) on the basis that what would be repugnant to an English girl was

‘entirely natural’ for a Nigerian girl. Rattansi dismisses these instances as

‘…evidence of a culturally relativist tendency in court judgments in the UK in the

1960’s and 1970’s’ but states that the tide has turned against ‘…such

irresponsible cultural relativism.’ Renteln’s ‘cognitive case’ (discussed in section

2.4) completely disregards the principle and the defendants sought to rely on

ignorance of the law in the ‘Pitcairn Case’ where there was a suggestion that

they did not understand the meaning of ‘sexual offences’ under the 1956 Sexual

Offences Act and there were arguments as to whether the Act had been

adequately promulgated on the island. Austin states that the principle is ‘an

assertion without normative force’ and that makes the way for Husak and Von

Hirsch to argue that the courts should be allowed to assess ‘…the moral

legitimacy of the defendant’s belief in ignorance’. However, this is qualified so

that the courts should not make this allowance in cases where the defendant

knows his conduct is injurious. This raises the idea that knowledge of the

criminal law is part of the mens rea but Gardner makes a distinction between a

defendant knowing what the law is and being able to find out. Ashworth, in a

later article, takes a liberal view in finding the doctrine not only unsustainable

but ‘preposterous’. There is thus uncertainty about its standing and we have

reached a stage where clear guidance from the courts would be extremely

helpful in the ongoing development of the culture-responsibility relationship.

There is scope here for clarity in the arena of multicultural policy where we can

question the relationship between knowledge (or deemed knowledge) of the law

and

multicultural rights such as citizenship.

This brings us to the ongoing conflict between objectivism and subjectivism in

criminal law. The actus reus of each specific offence is a precondition for

criminal liability. Generally speaking, other than where causation is in question,

it is a concept that attracts little controversy. But, to satisfy the demands of a

retributivist approach to criminal justice, offences need a mens rea to establish

fault and in turn liability (and to satisfy the correspondence principle the actus

reus and the mens rea must coincide in time). The criminal law relies on

common law

definitions of states of mind such as intentionally, recklessly, maliciously, willfully,

fraudulently, dishonestly and knowingly and thus subjectivity enters the law as

courts try to establish what was in a particular defendant’s mind. (It should be

noted here that the criminal law of England and Wales does not consider motive

in establishing the fault element). Yet objectivity informs that subjectivity as legal

standards are laid down, usually at common law, to help the courts determine

whether or not these states of mind existed at the time of the offence.

The test for oblique intention, for example, asks if an outcome was (objectively)

virtually certain and if the defendant (subjectively) appreciated that and the test

for recklessness asks if a defendant (subjectively) foresaw a risk but took it

anyway when to do so was unreasonable (objective) in circumstances known to

him (subjective). This seems to verify what Ashworth and Horder identify as a

‘loosening and tightening’ in the objective/subjective.89 But they also argue that

the courts are fearful of subjectivism as they seek not to lower standards,

something that has perhaps been seen recently in the reworking of the definition

of dishonesty where the second (subjective) limb of the Ghosh Test was

removed by the decision in Ivey. Wells and Quick argue that ‘…the tribunal is

effectively constructing the standard against which the defendant is judged: the

legal process goes on to legitimize that standard as objective and neutral’.91

Broadly, a more subjective approach makes more room for culture; a more

objective approach limits its potential ambit. This is illustrated well in the loss of

control defence (discussed in detail in section 3.3 below) with S54 (1)(c) of the

Coroners and Justice Act 2009 providing that where there is a loss of control (a

question of fact but established subjectively) the defence may be relied upon

when ‘…a person of the defendant’s sex and age with a normal degree of

tolerance and self-restraint in the circumstances of the defendant might have

acted in the same way.’ There is a ‘subjective’ leeway in the words ‘in the

circumstances of the defendant’. Can the words be stretched to include the

defendant’s cultural circumstances? This has not been tested since the new

loss of control defence became law.

In looking at the purpose of the criminal law earlier in this section the prevention

of harm was identified as one of three purposes leading to the overall aim of

maintaining social order. In practical terms harm is prevented through the

criminalisation of harmful behaviours. The harm principle thus informs the limits

of criminalisation. Generally we follow a principle of minimum criminalisation

and although we saw earlier the emphasis in liberal thinking on individual

autonomy in decisions around criminalisation, that is balanced against welfare

concerns so that collective goals are considered too in the criminalisation

process. Matravers argues that ‘…a liberal state in circumstances of pluralism

ought not to criminalise- or ought otherwise to leave space for- (at least some)

practices that ‘belong’ (in some sense or other) to the various cultures and

conceptions of the good of its citizens.’ Yet we will see in section 3.3, for

example the hasty and ineffectual criminalisation of forced marriage, despite the

well documented suggestions from those from within affected communities to

tackle the issue through alternatives to criminalisation.

Of the relevant systemic factors to be considered, there is the role of the judge.

There has long been debate about whether judges make or interpret law. In the

21st Pilgrim Fathers Lecture Lady Hallet looks back to Sir Francis Bacon who

ascribed to judges the minimalist role of simply deciding the law (his views were

in opposition to those of Sir Edward Coke who stated, in Bonham’s case in 1610

that judges can override parliament and thus make law). Thus there is

adherence to ‘declaratory theory’ with the role of the judge confined to the

interpretation and application of laws rather than their creation. In accordance

with Montesquieu’s doctrine of the separation of powers the judiciary must be

independent and the role of the judge is to interpret the law fairly and to apply it

impartially. However, says Freeman, this is a ‘hollow pretence’ because ‘…

judges cannot divorce themselves from the pattern of values which is implicit in

the society or group to which they belong and no amount of consciously applied

impartiality or judicial lack of passion will succeed in eliminating the influence of

factors of this kind.’

Webber affirms this in recognising a ‘decline of legal positivism and recognition

of normative pluralism in judicial decision making’ but it is questionable as to

whether such ‘normative pluralism’ exists in reality and indeed whether it reflects

our multicultural world. Shabani sees instead a ‘normative model of integrative

adjudication.’98 This means perhaps a move away from the judge who is bound

by the constitution, legislation and precedent towards decision making based on

society’s norms. Shabani summarises this as being ‘…essentially a process of

social hermeneutics, grounded in the relationship between moral theories and

experience in which judges should strive for a synthesis of the contending moral

considerations.’ Both Webber and Shabani recognise that this leaves room for

contention and that judicial outcomes may therefore be ‘provisional’ but the idea

is that this way forward avoids claims of bias and arbitrariness. Webber asks the

question ‘…how can one legitimately insist upon common standards? How can

one establish a normative order, in a society marked by radical disagreement,

on what those standards should be?’ He says that judges can merely make an

‘appropriate response’ because it is not possible to identify ‘…a fully agreed set

of values from which to deduce all necessary judgments’ and this means that

there will always be disagreement. Is what Webber is suggesting a radical

rethinking of judicial decision making or is it what happens anyway, in reality,

without such practices being acknowledged?. The analysis in section 3.3 below

suggests the latter. Surprisingly, there has been some guidance on questions of

culture and race, albeit from the Employment Appeal Tribunal. In Bradford

Hospitals NHS Trust v W Al-Shabib Judge Reid QC said:

‘Whilst it may sometimes be legitimate for a tribunal to take into account

differences in behaviour which reflect racial and cultural differences

[there must be]…some evidential basis for them, frequently in the form of

expert evidence. For a tribunal to assume that a particular ethnic group

has a specific characteristic for example, that they are given to use

emotive language is fundamentally wrong, even if the assumption is

made for benign purposes.’

This is constructive in its oblique reference to the unacceptability of

essentializing and important in legitimising the recognition of racial or cultural

differences as an explanation for differences in behaviour. In 2013 the President

of the Family Division gave guidance about how the judge should approach the

‘enormous challenges’ of our largely secular and religiously pluralistic society.

Munby LJ advised that it is not for the judge to weigh one religion against

another and that all are entitled to equal respect but he qualified this by saying

that this is so where religions are ‘legally and socially acceptable’ and not

‘immoral or socially obnoxious’ or ‘pernicious’. However, he acknowledged that

there is no ‘bright line’ to demarcate the limits of the reach of the secular law.

The obvious question arises. Why are the judges of the criminal courts not

addressing these issues?

Lacey states that ‘…working out- as a matter of social science as much as legal

philosophy- the appropriate balance between fairness to individually situated

defendants and the goals of contemporary criminal law remains one of its most

urgent challenges.’ In this section we have looked at the purpose of the criminal

law and at those principles, values and systemic factors that provide the law

with its strength and foundations. In addition to the challenging questions that

the culture-responsibility raises for traditional ideas around the purpose of the

criminal law, the Rule of Law is pushed to its limits by the culture-responsibility

relationship and the objective/subjective boundaries are pushed much further

towards the subjective than perhaps feels comfortable. But with the political will,

there is space for accommodation. Although we identified the endemic cultural

bias of the judiciary in section 2.4 this is not necessarily a barrier to allowing the

culture-responsibility relationship into the judicial consciousness and as the

review of the Judiciary in section 3.4 shows the Judicial College seem to be

ahead of the game in policy terms as evidenced in the provisions of the Equal

Treatment Bench Book. The next step is to thematically search the criminal law

(section 3.3) and the criminal justice system (section 3.4) for evidence of the

presence of and engagement with culture in general and the culture-

responsibility relationship in particular.

3.3 The Criminal Law

In this section traditional defences, cultural offences, decided cases and

sentencing decisions and sentencing law will be thematically examined as we

seek to understand how the substantive criminal law has engaged with culture.

Traditional Defences

Whilst the theoretical rational for the existence of defences in criminal law is

disputed, broadly speaking, defences emerge from the denial of responsibility.

Traditionally defences have been divided into justifications and excuses but

Clarkson and Keating recognise an additional category of ‘exemptions’.

Ashworth and Horder adopt the division between the defendant who did not

have the capacity to choose the course of action taken so that he can deny his

responsibility for the crime of which he is accused (relying on infancy, insanity,

automatism) and the defendant with capacity to choose who was a responsible

moral agent and should be judged ‘…according to the standard of what we

ought reasonably to expect of a person in that situation.’ In this latter case

defendants are accepting responsibility but ‘claiming an excuse on the ground

that their response to a testing situation lived up to expectations in a normative

sense.’109

Culture therefore could be relevant to excuse where there is an argument that

capacity is reduced by culture or to justification where the defendant has still

lived up to (perhaps culturally different) ‘normative expectations’. We do need to

question the basis upon which those expectations are normative because, as

seen in section 2.4, we need to be able to be answerable to claims of

individualised justice. As Black points out, ‘…acknowledging that something in

an accused’s cultural background might justify an acquittal for otherwise

criminal behaviour seems to be a step down the path to individualised justice

which corrupts the equal protection that should be offered by the criminal law. In

short, it threatens anarchy.’

How far can traditional defences in the criminal law of England and Wales be

adapted to embrace the defendant who lacks capacity due to his culture or who

has acted according to a morally different normative expectation? A few writers

have addressed this question directly. Golding asks how the ‘cultural defence’

fits into the standard scheme of justifications and excuses.111 As discussed

above, broadly, accommodation of the multicultural criminal within the traditional

criminal law defences lies in the subjectivity or objectivity of each individual

defence. Taking loss of control, diminished responsibility and insanity as

examples, because they are perhaps the most likely defences to interact with

the concept of culture we can consider how far they can accommodate the

culture-responsibility relationship.

The Coroners and Justice Act 2009 abolished the old defence of provocation

and replaced it with the defence of loss of control, a partial defence to murder

that reduces a murder conviction to one of voluntary manslaughter. There must

now be a subjective loss of control caused by a ‘qualifying trigger’ and a

requirement that ‘…a person of the defendant’s age and sex with a normal

degree of tolerance and self-restraint and in the circumstances of the defendant

might have reacted in the same way’. In the law on loss of control it is possible

to see some evidence of direct engagement with culture. In fact, Dick argues

that provocation was originally a ‘cultural defence’, based on cultural norms

about women as property and ‘honourable’ reactions to adultery. S 55(6) of the

Act excludes a

‘considered desire for revenge’ as a qualifying trigger. The Law Commission

Report that led to the reform of the law expressly considered honour killings and

in paragraph 5.25 stated that such killings were ‘likely’ to include a strong motive

for revenge. Furthermore, in 2009 the Ministry of Justice published its response

to the reform proposals and in paragraph 56 stated that ‘Honour Killing cases

will not satisfy the requirement that circumstances were of an extremely grave

character and caused a justifiable sense of being wronged’. It is encouraging

that both the Law Commission and The Ministry of Justice gave thought to

these cultural issues.

Dogan questions whether the 2009 Act is flawed in assuming that all ‘honour’

killings are based on a desire for revenge and identifies three different types of

‘honour’ killing with only the third, labelled as ‘cultural’, being qualitatively

different from other kinds of murder.117 As will be seen below, courts in England

and Wales are generally reluctant to accept cultural evidence in murder cases

and it seems that ‘honour’ is not raised by the defence but rather by the

prosecution. However, Phillips looks at four cases involving ‘honour’ killing and

finds that culture was relevant to provocation in one case when it was

introduced as a defence at retrial and the Court of Appeal found that victim’s

illicit affair ‘…would be deeply offensive to someone with your background and

religious beliefs.’118 The new loss of control defence has not been tested in the

context of a culturally motivated murder or more specifically an ‘honour’

killing.119 Whilst the 2009 Act is clear that sexual infidelity is excluded as a

qualifying trigger for the purpose of establishing loss of control the Court of

Appeal took a grey line in allowing appeals from men convicted of the murder of

unfaithful wives who had had not been able to rely on the loss of control

defence at trial.120 Now where sexual infidelity is ‘…integral to

CP(R) 19/08, 14 January 2009)

<http://webarchive.nationalarchives.gov.uk/20100512140907/http://www.justice.gov.uk/consulta

tions/docs/murder - review - response.pdf > accessed 1st September 2018.

117 Recep Dogan, ‘The Dynamics of Honour Killings and the Perpetrators’ Experiences’ (2016)

20 (1) Homicide Studies 53.

118 R v Shabir Hussain [1997] EWCA Crim 2876.

The cases discussed by Philips here are not included in the case analysis below because they

were all heard before 2000.

Anne Philips, ‘When Culture Means Gender: Issues of the Cultural Defence in the English

Courts’ (2003) 66 (4) Modern Law Review 501.

119 Although in Re Naz [2011] EWHC 2850 (QB) religious beliefs were raised at trial (though not

on appeal) in the context of provocation, but the defendant was convicted of murder.

120 S55 (6) c Coroners and Justice Act 2009.

R v Clinton, R v Parker, R v Evans [2012] All ER (D) 73 (Jan)

and forms part of the essential part of the context in which to make a just

evaluation whether a qualifying trigger properly falls within the ambit of

subsection 55 (3) and (4) the prohibition does not operate to exclude it’. This

judicial widening of what counts as the qualifying trigger may in time have

implications for ‘honour’ killing cases.

More generally it is interesting to trace the development of provocation in case

law. Prior to 1957 provocation was a common law defence, a ‘concession to

human frailty’ but based on the objective reasonable man. In R v Lesbini the

court ruled that no account should be taken of an anti-Semitic slur which

provoked the defendant but would not provoke an ordinary man who was not

Jewish. Section 3 of the Homicide Act 1957 required two elements for a

defendant to rely on the defence of provocation. Subjectively, the court had to

be satisfied that he had been provoked into losing self-control. Objectively, the

court needed to evaluate whether the provocation was enough to make a

reasonable man do as he did taking into account everything said and done and

the effect it would have on a reasonable man. Lord Diplock defined a

reasonable man in DPP v Camplin as ‘…an ordinary person of either sex, not

exceptionally excitable or pugnacious, but possessed of such powers of self-

control as everyone is entitled to expect that his fellow citizens will exercise in

society as it is today.’ The Privy Council

decision in the 1997 case of Luc Thiet Thuan v R reaffirmed this objective

standard but qualified it in allowing the personal characteristics of age and sex

to be taken into account in assessing the ‘reasonable man’.125 This case is

directly relevant to the culture-responsibility relationship because the defendant

was a

Chinese man who claimed, unsuccessfully, that his girlfriend’s mocking his

sexual ability was more insulting to a man from his culture making his loss of

temper reasonable. The departure from this objective standard in R v Morgan

Smith which ‘…involved a significant relaxation of the uniform, objective

standard adopted by Parliament [in S3 Homicide Act 1957]’ in stating that the

defence of provocation should be interpreted with ‘…sufficient sensitivity to

individual difference to individual defendants’ was judged as erroneous in AG

for Jersey v

Holley and the latter case placed objectivity firmly back in the legal framework.

If the legislature intended an objective test in S54(1) (c) of the 2009 Act and the

courts are committed to developing that objectivity is there room for the

cultureresponsibility relationship within the traditional defence of loss of control?

Do the words ‘in the circumstances of the defendant’ allow for an element of

subjectivity? The Clinton decision might suggest so with the black and white

prohibition on sexual infidelity as a qualifying trigger in S55(6)(c) being given a

grey interpretation but the analysis of decided cases in section 3.3 suggests

differently. Gardner is insightful here for he recognized in the Smith decision the

implications for ‘todays cosmopolitan social conditions’ where ‘…an increasingly

mobile populace creates an increasingly fragmented social and cultural space

with a corresponding fragmentation of standards that are expected of people

and regarded as proper.’ Gardner identifies ‘enough pluralistic space’128 in the

defence of provocation even though he was writing after the Holley decision.

The decision in R v Shabir Hussain, however, is anomalous in that Hussain was

able to rely on the defence of provocation at re-trial after running over his sister

in law whilst she was waiting for her partner on the grounds, as stated by

Phillips above, that the affair was offensive to someone of his ‘background and

beliefs’. Perhaps the absence of the word ‘culture’ is significant.

Diminished responsibility is also a partial defence to murder. The defendant

must be suffering from an abnormality of mental functioning caused by a

recognized medical condition and that recognized medical condition must be

listed in the latest American Psychiatric Association’s Diagnostic and Statistical

Manual of Mental Disorders (‘DSM’). Diminished responsibility was raised as a

defence in two ‘honour’ killing cases in 2014. In R v Ahmed al-Khahib the

defendant claimed that the djinn (a demonic spirit in Islamic folklore) had

commanded him to bury his wife and in R v Jahangir Nazir the defendant

sought to rely on severe depression as a recognized medical condition in

establishing diminished responsibility. The defence was rejected in both cases.

At first there seem to be fewer cultural implications for the defence of insanity.

The law on insanity in England and Wales still comes from The 1843 M’Naghten

Rules. The defence requires that the defendant is suffering from a defect of

reason caused by a disease of the mind. Unlike the defence of diminished

responsibility it does not rely on medical reference tools. The insanity defence

has always worked on common sense understandings of what ‘insane’ may look

like. In a 2013 paper the Law Commission proposed an alternative to insanity

‘not criminally responsible by reason of a recognised medical condition’.

Interestingly (and in contrast to their earlier recommendation on reform to the

law on diminished responsibility) they specified that ‘recognised medical

condition’ is a term of art to be interpreted by the court and not related to

diagnostic materials. This is because it is (and always has been) a question of

mens rea with insanity needing a complete lack of capacity to be successfully

pleaded.

Davis argues for recognition of ‘cultural insanity’ where a defendant may not be

insane within legal definitions but insanity should be available as a proxy for a

‘cultural defence’ simply because a defendant lacks mens rea. This is

controversial, akin to Renteln’s ‘volitional case’ where the defendant was

compelled to act according to culture. More helpful however is Davis’s

knowledge of the DSM and how this has adapted to take account of cultural

influences in mental health. Extending these developments to law she argues

that the DSM could provide courts with helpful guidelines for contextualizing

cultural issues in psychiatric diagnoses. In fact DSM V includes cultural criteria

for the diagnosis of mental disorders (although it carries a warning about its use

in forensic settings) and reflects the American Psychiatric Association’s effort to

improve treatment of cultural issues in diagnosis. It now recognizes ‘cultural

concepts of distress’. Prior to this DSM IV recognized ‘culture bound syndrome’

and Parzen

comments that claiming this would be likely to lead to insanity at the time of the

act and therefore a defence.

We can see that culture has gained a foothold in the consciousness of law

makers and there is theoretical scope within these traditional defences to

accommodate culture but as the next sections show there seems to be an

embedded reluctance to admit culture to the practice and policy of the criminal

law.

Legislation

Theories of criminalisation and the limits of the criminal law relate back to

questions raised earlier in this chapter firstly about the purpose of the criminal

law and secondly about the laws’ principles and values. We need to review the

recent creation of ‘cultural offences’ in order to achieve a full understanding of

the approach of the criminal law to responsibility and culture. As seen above the

‘harm principle’ forms the basis for decisions to criminalise behaviour as

legislatures decide what amounts to harm and arguably wrongdoing but

Ashworth and Horder remind us that ‘…the frontiers of criminal liability are not

given but are historically and politically contingent’. In other words, notions of

harm are fluid and the criminal law responds accordingly. This is of course

evident where ‘harm’ takes on a cultural or multicultural dimension. Early

legislative approaches to different cultures were based on a ‘rule and

exemption’ approach, for example the Criminal Justice Act 1988 prohibits the

carrying of knives and other dangerous weapons but exempts knives carried for

‘religious purposes’. These exemptions are grounded in the idea of group rights.

More recently we have seen the creation of ‘cultural offences’ a phenomenon

that contributes to what Duff has identified as a ‘crisis of criminalisation’ where

behaviour outside the normative values of the majority is made criminal and

where we need to assess the value judgments behind criminalisation. Van

Broeck is one of the few writers to focus on the idea of the ‘cultural offence’. His

suggested definition is

‘…an act by a member of a minority culture which is considered an

offence by the legal system of the dominant culture. That same act is

nevertheless, within the cultural group of the offender, condoned,

accepted as normal behaviour and approved or even endorsed and

promoted in the given

situation.’5

Van Broeck is looking to establish a ‘cultural offence’ in individual cases, firstly

by asking if the defendant was subjectively motivated by culture, secondly

through objectifying this by asking if members of the defendant’s cultural group

agree and thirdly by comparing the defendant’s culture with the dominant

culture to reach a decision on whether a ‘cultural offence’ has been committed.

Perhaps it is a testament to our beginning to think in a different way but Van

Broeck’s definition can no longer be workable. Yes, the focus of Van Broeck’s

‘cultural offence’ is on the individual but we have moved away from the idea of

an offender belonging to a ‘minority culture’ (although there is a whole

criminological literature on deviance within different cultures and sub-cultures,

beyond the scope of this thesis) and beyond the understanding of cultures,

minority and dominant, as bounded.

In recent years two high profile ‘cultural offences’ have emerged in legislation.

Female circumcision, now more commonly referred to as Female Genital

Mutilation (FGM), could historically have been dealt with using the catch all tools

of the criminal law, notably the Offences Against the Person Act, or managed as

a safeguarding issue under the Children Act 1989. It was made a specific

criminal offence by the Prohibition of Female Circumcision Act 1985. The later

Female Genital Mutilation Act 2003 made the offence more serious in increasing

the maximum sentence from 5 to 14 years as the rhetoric surrounding the

offence changed with the move from ‘circumcision’ to ‘mutilation’, something

Bibbings recognizes as ‘value loaded’ because the latter word conveys a

disgust not inherent in ‘circumcision’. Recent research from Equality Now and

City University reports that 103,000 women who had undergone FGM were

living in

England and Wales in 2011, with the implication that their own daughters

(144,000 girls born to these mothers between 1996 and 2011) are in turn at risk

of being subjected to FGM.8 FGM has recently received prominence following

the

‘Girl Summit’ which took place in the UK in June 2014 and where there were

consensus resolutions on forced marriage and FGM. For many years there was

only one prosecution in England and Wales for offences relating to FGM and the

defendant, Dr Dhanuson Dharmasena was acquitted on 4th February 2015,

leading to support groups questioning why the law is ineffective. New provisions

(with support of the Royal College of Nursing and the British Medical

Association) have now been added to strengthen the 2003 Act. The law now

provides for extra territorial liability, lifelong victim anonymity and

parent/guardian liability for failure to protect a child from FGM.11 A case against

a Bristol father accused of allowing his 6 year old daughter to undergo FGM

collapsed in February 2018 after the

Crown Court judge ordered the jury to acquit because of a lack of evidence. 12

The 2003 Act was further amended in 2015 by the addition of the availability of

an FGM Protection Order. National Statistics from the Family Court state that

since July 2015 233 applications for FGM Protection Orders were made with

220 orders being granted and for the period January to March 2018 15

applications for orders were made.13 Perhaps it is too soon to conclude that the

civil system provides more effective protection for girls (and thus prevents more

harm) than the criminal justice system. Whilst the numbers of FGM Protection

Orders issued is encouraging, the caution of the criminal justice system in

proactively engaging with FGM prosecutions is arguably echoed in the civil

system. The ruling of the

11 The new law is found in sections 70-75 of the Serious Crime Act 2015 and came into force 3rd

May 2015. The background to the passing of the new law is as follows-

• House of Commons Home Affairs Committee. Female Genital Mutilation: The Case for

National Action Plan- Second Report of 2014-15 Session 3rd July 2014

<https://publications.parliament.uk/pa/cm201415/cmselect/cmhaff/201/201.pdf > accessed 1st

September 2018.

• Government Response published 9 December 2014 CM8979

<https://www.parliament.uk/documents/commons - committees/home - affairs/Govt -

Response FGM - abuse - unchecked.pdf > accessed 1st September 2018.

• Follow up Report 14 March 2015

<https://www.parliament.uk/business/committees/committees - a - z/commons - select/

home affairs - committee/inquiries/parliament - 2010/female - genital - mutilation - follow - up/ >

accessed 1st September 2018.

12 12 Reported in the Guardian (23rd February 2018)

<https://www.theguardian.com/society/2018/feb/23/uk - fgm - trial - father - failed - case -

intolerable pressure > accessed 18th June 2018.

13 Ministry of Justice, Family Court Statistics Quarterly, England and

Wales, January to March 2018

<https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data

/file/720100/FCSQ_January_to_March_2018.pdf > accessed 1st September 2018.

judge in London Borough of Barnet v MFABCD (by their Guardian) as to

whether or not child A (who was living with foster parents under an interim care

order) had undergone FGM was based on three days of evidence from, among

others, 2 social workers, pediatricians with expertise in FGM, psychologists,

school workers and a child protection officer. The ruling ran to 19 pages and the

judge finally decided at paragraph 139 that A had undergone a procedure to her

genitalia, likely to be Type IV FGM but that ‘…there is no evidence to suggest

that A is at risk of suffering a further procedure of FGM.’ FGM is high on the

political agenda with a further Select Committee Report published in September

2016 and a governmental response published in December 2016 in which the

government reinforced its commitment to eradicate FGM.15 The law, both

criminal and civil needs to live up to the political rhetoric.

If the dominant political and legal discourse tells us that FGM lies somewhere

on a scale from distasteful to abhorrent we may be reluctant to entertain

alternative social constructions surrounding it. Bibbings asks whether FGM is

mutilation or modification and argues that it is no ‘worse’ than other forms of

cosmetic surgery, which western women may appear to have autonomy in

choosing. However, she questions that autonomy as being compromised as a

result of false consciousness. She is of course overlooking the issue of ‘whose

autonomy?’ bearing in mind that FGM is often a procedure chosen by women

for their infant daughters. American cultural anthropologist Schweder uses the

word ‘alteration’ rather than mutilation and presents findings from a number of

ethnographic studies that view FGM as a positive coming of age experience in

the psychological, spiritual, social and physical sense. He counteracts both the

feminist objection to FGM (pointing out that ritual ‘alteration’ is also carried out

on males) and the allegations of patriarchy (on the basis that FGM is usually

upheld within the matriarchy). He claims that health risks have been

exaggerated and are empirically unsubstantiated and that there are no grounds

for imposing Western aesthetic norms on communities. But like Bibbings he

gives little time to the issue of the autonomy of the young. Few Western

multiculturalists are swayed by these arguments, for example Parekh whose

firm and unequivocal rejection of female circumcision also displays his

commitment to universalism rather than cultural relativism.

Despite the availability of a court order preventing the marriage of those at risk

of being forced to marry under the Forced Marriage (Civil Protection) Act 2007

the conservative government made the decision to criminalise forced marriage

in June 2012. Sections 120 (which creates the offence of breaching a forced

marriage protection order (FMPO)) and 121 (which creates the offence of

forcing someone to marry) of the Anti-Social Behaviour Crime and Policing Act

2014 came into force on 16th June 2014. On 10th June 2015 the first (and only)

conviction for the offence of forcing someone to marry under S121 was secured.

Statistics released on 16thth March 2018 revealed that during 2017 the Forced

Marriage Protection Unit gave advice or support in 1196 cases (a decrease of

19% on 2016 figures of 1428 although that does not necessarily reflect a

decrease in the prevalence of forced marriage). Between January and March

2018 there were 58 applications for forced marriage protection orders with 55

granted. On 3rd May 2016 MP for Bradford West Naz Shah put a written

question to the Attorney General asking how many prosecutions there were for

forced marriage in 2014 and 2015. The Attorney General’s written answer of

10th May 2016 is reproduced in full below. Despite the initial figures indicating 45

or 46 prosecutions annually for offences ‘associated with forced marriage’ the

statement does not give the number of convictions. A recently published

protocol between the CPS and NCCP on ‘honour’ based violence/abuse and

forced marriage gives prosecution figures for 2015/16 and shows that there

were 90 cases referred from the police to the CPS and ‘flagged’ with 53

prosecuted, 32 of those successfully (60.4%). This compares with 5

prosecutions under S121 (perhaps more truthfully stated the prosecution of 5

defendants in 2 cases) which were unsuccessful due to the victims withdrawing

support. These are interesting numbers. A long line of governmental reports

considering the forced marriage issue documents both the shift in the situating

of forced marriage from the violence against women paradigm (under early

labour government responses) to the cultural paradigm (under the later coalition

government) and the shift from the belief that criminalisation would not be

helpful (in 2000, 2005, 2008) through to criminalizing breaches of the FMPO

(2011) to the announcement on 8th June 2012 that ‘…there were strong

arguments both for and against the creation of a new offence, however, listening

carefully to all views we have decided to make forcing someone to marry a

criminal offence.’ Had the government listened carefully to ‘all views’? Support

for this criminalisation was by no means universal with independent research by

Gill casting doubt on the validity of the claim in the government’s 2011

eConsultation that 54% of those consulted were in favour of the offence of

forcing someone to marry.26 Does the failure of S121 add weight to the

argument that creating and attempting to prosecute ‘cultural offences’ just does

not work? Those most affected by forced marriage had a different view which

points strongly to the fact that we need dialogue.

Honour Based Violence (HBV) is not a crime in its own right but prosecuted

under the general provisions of the criminal law, notably murder for ‘honour’

killings and the Offences Against the Person Act 1861 for offences that do not

lead to killing.

It is arguable that the new law on coercion and control could be used to

prosecute

HBV cases where the ‘violence’ is less obviously physical and more

psychological or emotional.27 Despite the lack of a specific offence of committing

HBV there is a government commitment to ending ‘so called HBV’ or ‘honour

based abuse’. 28 In 2017 MP Nusrat Ghani introduced a private members bill in

the House of Commons, the Crime (Aggravated Murder of and Violence Against

Women) Bill 2017. After the First Reading (31st January 2017) the Second

Reading was set for 24th March 2017 but the Bill was withdrawn. The concept

of aggravated murder was always going to be problematic but the Bill was far

reaching in its ideas including the prosecution for aggravated murder and

aggravated domestic violence in cases involving ‘honour’ and the power to bring

prosecutions where alleged crimes have taken place outside the jurisdiction

(consistent with recent forced marriage and FGM legislation). 29 The Welsh

Assembly have taken a broader approach to the problem of HBV with the

passing of the Violence Against Women Domestic Abuse and Sexual Violence

(Wales) Act 2015 on 10th March 2015 which requires the production of local and

national strategies for tackling gender based violence, domestic abuse and

sexual violence. In notes to the Act ‘honour based violence’ is specifically listed

as a form of gender based violence.30 Interestingly this legislation is ahead of its

27 S76 Serious Crime Act 2015 which states that a person is guilty of an offence if he repeatedly

or continuously engages in coercive or controlling behaviour towards another who is personally

connected and he knows or ought to know that that behaviour will have a serious effect on the

other. Coercive or controlling behaviour is not defined in the statute but the government

published guidelines as to what constitutes coercive control in September 2012

Home Office, Statutory Guidance Framework: Controlling or Coercive Behaviour in an Intimate or

Family Relationship (5 December 2015)

<<https://www.gov.uk/government/publications/statutory - guidance - framework - controlling -

or coercive - behaviour - in - an - intimate - or - family - relationship > a ccessed 28th September 2018.

28 HM Government, Ending Violence Against Women and Girls (VAWG) Strategy 2016-2020

(March 2016)

<https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data

/file/522166/VAWG_Strategy_FINAL_PUBLICATION_MASTER_vRB.PDF > accessed 1st

September 2018.

29<https://services.parliament.uk/bills/201617/crimeaggravatedmurderofandviolenceagainstwom

en.html > accessed 1st September 2018.

30 Note 43 ‘…an example of gender based violence…is a type of so-called honour based

violence where people suffer violence, threats of violence or harassment as a result of the

counterpart at Westminster where the Preventing and Combatting Violence

Against Women and Domestic Violence (Ratification of Convention) Act, whose

purpose is to allow ratification of the Istanbul Convention, received royal assent

on 27th April 2017.31 The long awaited draft Domestic Violence and Abuse Bill is

expected in the autumn of 2018.32

It is interesting that HBV, as a separate and specific crime, lies outside of the

legislation. Whilst the framing of the response to HBV within the violence

against women paradigm is sometimes questioned (men are victims and

women are perpetrators too) we need to be wary of placing ‘harmful’ traditions

and practices within the cultural context and of seeing such practices as

culturally sanctioned aberrations from the norm. Roy, Ng and Larsi highlight the

misperception that harmful practices are linked to certain cultures and Dustin

and Phillips argue that just because something is statistically more prevalent in

one group than another it does not make it a ‘cultural practice’.33 Begikhani, Gill

and Hague document a recent change in social attitudes and policy responses

to HBV, significant in the re-labelling of ‘honour’ as ‘dishonour’ (degrading to

perpetrators rather than victims) but more so in the reconceptualisation of HBV

as a community based

perception that they have caused disgrace or dishonor to the family or community where the

perceived disgrace or dishonor arises from values beliefs or customs relating to gender or

sexual orientation.’

31 The Act was introduced in response to the Istanbul Convention, a Council of Europe

Convention and obligations under international law to combat violence against women. This has

now been ratified by 32 of the original 46 EU signatories to the Convention.

32 A consultation on the Bill was launched on 8th March 2018 and closed on 31st May 2018.

The results of that consultation are awaited

<https://consult.justice.gov.uk/homeoffice - moj/domestic - abuse consultation/ > https://

consult.justice.gov.uk/homeoffice - moj/domestic - abuse - consultation/ Accessed 1st August 2018.

33 Sumanta Roy, P Ng and Ikamara Larsi, (2011) ‘The Missing Link: A Joined Up Approach to

Addressing Harmful Practices in London’ (2011) End Violence Against Women

<www.endviolenceagainstwomen.org.uk > accessed 1st August 2018.

Moira Dustin and Anne Phillips, ‘Whose Agenda is it? Abuses of Women and Abuses of Culture

in Britain’ (2008) 8 (3) Ethnicities 8(3) 405.

and interpersonal form of violence. However, they continue to situate HBV within

the violence against women framework, as HBV aimed at men is still gendered

as it is motivated by perceived transgression of male/female relationships and

women involved in perpetrating HBV (usually as accomplices) ‘…subscribe

powerfully to the socio-cultural norms and traditions that discriminate against

them.’ The patterns in the cases involving ‘honour’ killings reviewed in section

3.3 certainly support this view. It is arguably more just to move HBV away from

a cultural framework to avoid the perception that it is related to the non-western

for as Bordieu recognised 30 years ago ‘honour’ ‘…emerges from a

constellation of interpersonal exchanges.’ Therefore ‘honour’, a bit like culture,

does not have one definition but differs country to country, community to

community and family to family which is why ‘…each unique social and cultural

context should be evaluated to determine how and why specific ‘honour’-based

practices have arisen.’ This is perhaps why the Crime (Aggravated Murder of

and Violence

Against Women) Bill 2017 could never gain a footing as a realistic legislative

goal.

Relating these specific practices to theories of criminalisation, in 1789 Bentham

advised us not to punish ’…where it must be inefficacious, where it cannot act

as to prevent the mischief’. In the cases of FGM and forced marriage

criminalisation has not eradicated the mischief and the perpetrators are not

being punished, perhaps because as Ashworth and Horder argue ‘…the main

determinants of criminalisation continue to be political opportunism and power,

both linked to the prevailing political culture of the country.’ There is an

argument that perhaps follows Husak’s ultima ratio principle, that alternatives to

criminalisation should be exhausted, for example, civil remedies. Civil remedies

came first in the case of forced marriage. In the case of FGM the civil remedy

came after the criminal one. In both cases the civil remedy has a greater impact

on ‘efficaciousness’. As Sager says ‘…epistemic concerns and the principle of

equal liberty require that we be slow to judge the unfamiliar and that we take a

hard look at our own factual beliefs and normative judgments’ before we

condemn the beliefs or practices of others.’ This ties in with Lernestedt’s caution

against the use of forward looking objective rules to try to change things when

we simply need to take a defendant as he is.

Decided Cases

Fisher states that ‘much…judicial energy continues to be expended over the

role of culture in the law.’ A review of the cases analysed here does not support

that view, at least in the criminal law, either in terms of the quantity of cases

considering culture or the quality of the engagement between the criminal courts

and the concept of culture. We will see in Chapter 4 how our multicultural

population has changed and grown, particularly since the beginning of the

twenty first century, with a commensurate increase in the number of defendants

from different cultural backgrounds, yet it seems that the criminal courts have

addressed the issue of culture in few cases since 2000. A lecture by Lady Hallet

entitled ‘Being a Judge in the Modern World’, which drew on the inaugural

academic programme of the Judicial College in 2013-14, identified several

challenges for modern judges. None related to culture, cultural diversity or

multiculturalism.42

Renteln undertakes a review of cases involving cultural conflict across different

jurisdictions (though largely in the US) which, she claims, is successful in

illustrating ‘…the ubiquity and extraordinary variety of disputes involving diverse

cultural traditions’.43 Renteln is critical of her own methodology, claiming that her

conclusions provide an overview rather than scientific findings. This review, it is

hoped, adopts a more scientific approach. As explained in Chapter 1 a search

was made for cases decided under the general criminal law (excluding the

‘cultural offences’ of forced marriage and FGM) in the criminal courts of England

and Wales at Crown Court level or above since 2000 in which culture was

raised at any point. The search was limited in time to tie in with understandings

of twenty first century multiculturalism in the United Kingdom and to keep the

focus on the ‘current approach’ of the criminal law and criminal justice system.

The cases selected therefore exclude some notable earlier cases discussed

elsewhere in the thesis.44 It also excludes summary cases tried at Magistrates

Court level

42 21st Pilgrim Fathers Lecture 3rd November 2014 printed in Plymouth Law and Criminal

Justice Review 2015.

These included (i) increased judicial review claims as a result of devolution, European Union

Law and the Human Rights Act 1998 (ii) the modern judge as case manager (iii) leadership and

management outside the courtroom (iv) modern technology (v) communication and relations

with the public and (vi) extra curricula judicial comment following the abolition of the Kilmuir

Rules by Lord Mackay in 1987.

43 Alison Dundes Renteln, The Culture Defense (Oxford, Oxford University Press 2005) 6.

These cases are listed at note 35. 44 These include

which would not normally be reported. A search was made on the Westlaw

database using the search term ‘culture’. Many hundreds of cases were found

because of the multiple meanings of ‘culture’, including mainly the ‘culture’ of

different organisations, ‘cultural rights’ and ‘culture’ in the context of the arts

world. Those hundreds of cases were reviewed and most rejected so that 23

cases remained. These were added to after finding media reports of 9 ‘honour’

killing cases following a general search for criminal cases involving ‘culture’.

There may of course be other cases but the list is believed to be

comprehensive.

The backgrounds to and outcomes of these 32 cases are set out in the Annex A.

Whilst there are a number of ways in which the cases could be ordered Part 1 of

the Annex A begins by listing the 9 of the 32 cases that did not go on to appeal,

coincidentally all ‘honour’ killing cases reported in the media. There is obviously

more judicial comment available in the 23 cases that went on to appeal, and

these follow in the list in order of seriousness of offence from the most to the

least serious. Beyond this categorisation it is difficult to know how to utilise most

effectively the information within the case reports to ascertain the approaches of

the courts to culture. A starting point is the quantitative breakdown of the 32

cases into type and number of offence which simply shows the spread of

offences involving a cultural element:

R v Bailey [1964] CLR 671

Rv Byfied [1967] CLR 378

R v Shabir Hussain [1997] EWCA Crim 2876

Luc Thiet Thuan v R [1997] AC 131

R v Bibi [1980] 1 WLR 1193

R v Kiranjit Ahluwahlia [1992] 4 All ER 889

R v Zoora Gulum Shah [1998] EWCA Crim 1441

R v Shabir Hussain [1997] EWCA Crim 2876 [2011]

Table (1) Type and Number of Offence in Crown Court Trials

Murder 17

Attempted Murder 1

Rape/ Sexual Assault 6

Offences under

Offences Against the

Person Act 1861

Fraud 2

Dangerous Driving 1

Drug related offences 2

Harassment 1

Child Cruelty 1

However, as the aim of this part of section 3.3 is to achieve a deep

understanding of the approach of the courts to culture (together with a doctrinal

analysis of how the criminal law itself engages with culture) we need to look far

beyond the quantitative to build a more complete picture. Here it was decided to

search for various themes within the criminal trial process. Building a picture of

the gender of both defendants and victims within these cases involving culture

is useful because it is within the feminism/multiculturalism paradigm that the

‘cultural defence’ (and perhaps now the culture-responsibility relationship)

meets its strongest opposition. It is also helpful to identify the proportion of guilty

and not guilty pleas and the engagement of both the prosecution and defence

with culture in framing those pleas. Analaysing judicial engagement with culture

is of course essential and finally a deeper understanding of the grounds of

appeal in the 23 cases that went on to appeal is sought. There is an attempt to

separate issues of substantive law and procedure (discussed here) and

sentencing (discussed in the next part of this section). Full case references are

given in the Annex A so the cases are referred to by name only in this section

3.3.

Firstly, looking at the gender of the defendants, both of the fraud cases involve

female defendants. Of the more serious crimes only in R v Khatun do we find a

female defendant acting alone (in the murder of her husband) for in the murder

cases of R v Athwal and Athwal, R v Ahmed and R v Naz and the child cruelty

case of R v Sebastian Pinto and Others the female defendants are charged

jointly with male family members.46 Therefore we find female defendants in a

total of 7 cases (3 acting alone and 4 acting jointly) and male defendants in a

total of 29 cases (25 acting alone and 4 acting jointly). The percentage of

female and male defendants across our 32 cases is thus 19% and 81%

respectively and if we leave aside the number of cases where there are joint

male/female defendants (4) the percentage of female defendants decreases to

12%. On both calculations there appears to be a far lower percentage of female

defendants in cases involving ‘culture’ than the percentage of women

throughout the criminal justice system more generally, shown by government

statistics to be 27%.47 When it comes to the gender of victims, the number of

cases involving female victims far outweighs the number of cases involving

male victims. If we consider the 5 cases involving fraud, dangerous driving and

drugs as ‘victimless’ crimes, of the remaining 27 cases 22 involve female victims

and 5 involve male victims meaning

46 This ties in with the findings of Begikhani, Gill and Hague that women involved in ‘honour

crimes’ are usually accomplices to men. Begikhani, Gill and Hague (n 34).

47 These statistics come from Ministry of Justice, Statistics on Women and the Criminal

Justice

System 2015, A Ministry of Justice Publication under S15 Criminal Justice Act 1991’ (24th

November 2016).

<https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data

/file/572043/women - and - the - criminal - justice - system - statistics - 2015.pdf > accessed 17th

September 2018.

that 92.5% of victims in cases involving culture are female. Again, this is a far

higher percentage than that across the criminal justice system more generally

where government statistics show an equal divide between male and female

victims. Whilst we are considering the gender of defendants/victims in a

relatively small number of cases here and so must be wary of theoretical

generalization, the cases analysed are the only cases available on the

established selection criteria and so the quantitative findings are in some ways

definitive. These findings bring the feminist concerns about making allowances

for culture (raised in section 2.4) straight back to mind because these numbers

do indicate a high prevalence of male defendants and female victims in cases

involving culture.

Moving on to guilty and not guilty pleas, of the 32 cases analysed here 31 (97%)

of cases involved not guilty pleas meaning a guilty plea rate of 3%. Generally in

the Crown Court the guilty plea rate is 67%.50 Whilst provocation (all relevant

cases were heard before the introduction of the loss of control defence in the

Coroners and Justice Act 2009) and diminished responsibility were raised in 7

cases (4 and 3 of the murder cases respectively, discussed below), traditional

defences were not raised in the remaining 25 cases (other than in R v Goren

where the defendant raised self-defence, a plea that was not accepted because

the attack was pre-meditated and made in revenge). We know that a ‘cultural

defence’ as such could not be raised, so what exactly were the defendants

basing their not guilty pleas on? Culture itself was raised by the defence in

relation to guilt in several of the cases. For example ‘westernisation’, ‘shame’,

‘promiscuity’ and ‘sexual jealousy’ were each raised as ‘reasons’ for the killing in

the murder cases and cultural background was raised not just as mitigation in

sentencing but as an influencing factor in relation to guilt in 2 of the 4 marital

rape cases. In The Queen on the Application of Mohammed v Nursing Midwifery

Council the defendant claimed that in the Yoruba culture the wife must obey her

husband in all things which is why she had committed fraud and in R v Zaynab

Hamza, R v Sabina Ahmed, two women claimed that although they were not

sisters it was

‘normal’ in their culture to refer to one another as sisters and so they had not

been dishonest for the purposes of S1 Fraud Act.

‘Honour’, on the other hand, was not raised by the defence in a single case. Of

the 17 murder cases in this analysis 14 involved an ‘honour killing’. ‘Honour’

was also relevant in the attempted murder case (R v Khan (Adeel)), and in the

S18 Offences Against the Person Act case (R v Goren). This means that in 16

(50%) of the cases ‘honour’ was presented as a factor in the crimes committed

but, and this is significant, it was raised by the prosecution as a driving force for

the defendants committing the crimes that they did. In R v Mohammed Mujibar

Rahman, R V Mamnoor Rahman and R v Chomir Ali prosecuting counsel said

‘…their relationship brought shame and dishonor on the family. That drove the

accused…to murder Arash to vindicate the family’s honour’. In R v Yones the

prosecution said that the victim ‘…was murdered because she loved the wrong

person, in her family’s eyes. It was an ‘honour killing’ to protect the perceived

status of the family and to mark their disapproval’. ‘Honour’ and the emotions

associated with it might then be said to be inherently indefensible, a weapon for

the prosecution in proving guilt rather than for the defence in maintaining

innocence. Therefore, if the culture-responsibility relationship is to be fairly

considered, it is important to separate notions of ‘honour’ from notions of

culture.

We explored the resistance to the ‘cultural defence’ earlier in this thesis but if

there is a perception that culture and ‘honour’ are one and the same then

resistance to the culture-responsibility relationship is likely to be difficult to

overcome. Despite the not guilty pleas the defendants in all 32 cases were

found guilty of the crimes with which they were charged, a 100% conviction rate

which only confirms the resistance of the courts to allow culture as any form of

defence.

That said, we do see evidence of trial judges acknowledging (though not

necessarily engaging with) culture in a number of cases. In R v Mohammed

Rahman, R v Mamnoor Rahman, R v Chomir Ali the trial judge identified a

‘cultural divide’ between Bangladeshi born parents and British born children and

in R v Ahmed the trial judge said ‘…a desire that [the victim] understood the

cultural heritage from which she came is perfectly understandable, but an

expectation that she lived in a sealed cultural environment, separate from the

culture of the country in which she lived was unrealistic, destructive and cruel.’

In R v Gurmeet Ubhi Singh the cultural dimension was played down. The

defendant’s inability to accept his daughter’s western lifestyle was explained by

his being an ‘old fashioned’ father who thought his children should do what he

wanted. Unfortunately, the judges do not go on to explore the relationship

between these observations and the law.

In the cases where provocation and diminished responsibility were raised as

defences to murder the trial judges seemed to engage more readily. In R v Faqir

Mohammed the defence asked the jury to take account of the defendant’s

‘strongly held religious and cultural beliefs’ ( that sex outside marriage is a sin)

and to weigh these against evidence from his children that he was a violent man

in deciding whether he had been provoked. The jury found that he had lost his

temper (leading to him killing his daughter after finding her in her bedroom with

her boyfriend) but had not lost control and the defence of provocation was not

allowed. In Re Sze-Hua Tai the defence asked that provocation be considered

in the light of his cultural background because an assault on a man by his wife

in China was considered a great insult (his wife had prodded him with a plank

and thrown tea in his face). His defence of provocation was rejected. In Re Naz

the victim was murdered by her brother after he learnt of her pregnancy which

he claims caused a ‘sudden and temporary loss of control’ because of his

religious beliefs. His defence failed with the trial judge saying that the case was

‘…a horrific example of outdated and misplaced family pride’. In all cases the

jury was unable to make the connection between cultural background or beliefs

and loss of control. A similar outcome was apparent in each of the 3 cases

where the defendant pleaded diminished responsibility. The claim that the djinn

(a demonic spirit in Islamic folklore) had commanded the defendant to bury his

wife in R v Ahmed Al-Khahib did not convince the jury that the defendant was

suffering from an ‘abnormality of mental functioning’ and the defendant’s severe

depression in R v Jahangir Nazir was not severe enough to be a recognized

medical condition because of his ‘mental agility’ after the killing. In R v Nazir the

defendant pleaded diminished responsibility on the basis that his sister was

resisting an arranged marriage but once again the plea was rejected. This

means that although we see room, at a theoretical level, for culture within the

traditional defences (identified earlier in this Section 3.3), those defences cannot

be said, in practice, to be opening up to embrace culture.

In a limited number of cases trial judges have engaged with culture in the

procedural realm. In R v Khatun the defendant claimed that she had stabbed

(and killed) her husband due to ‘cultural tensions’ but the trial judge excluded

expert evidence on cultural issues because he found that such assistance was

not required. Similarly, in R v Sebastian Pinto and Others the trial judge

dismissed the evidence of a ‘cultural profiling expert’ (as seen in section 1.1) on

the basis that it looked like a ‘cultural horoscope’. Conversely, in Crawford v

CPS, where the defendant was found guilty of harassing his former wife, the

court engaged with culture in a unique way in taking culture into account in its

findings on credibility and this, claimed the defendant, amounted to

subconscious stereotyping, which is why he appealed.

Moving on to appeals, 23 out of 32 cases were appealed. Of the 23 cases

appealed, 9 were appeals against conviction, 11 were appeals against sentence

and 3 were appeals against both conviction and sentence. Of the total of 12

appeals against conviction 6 engaged directly with culture. We referred in

Chapter 1 to the ‘Pitcairn Case’ and the issues of culture set before the Privy

Council. In R v Khatun appeal was made on 3 grounds, the third being that the

‘trial judge was wrong to exclude expert evidence as to K’s cultural

background…’ but the Court of Appeal found that the trial judge was entitled to

find that no expert evidence was required and the appeal was dismissed. The

Court of Appeal did engage with culture in relation to conviction in the Pinto

case acknowledging that two of the defendants did hold the deluded belief that

the victim was possessed but the Court did not go as far as allowing that

deluded belief to influence guilt (although as will be seen below their sentences

were reduced). In The Queen on the Application of Mohammed v Nursing

Midwifery Council the appellant appealed on the basis that the court had not

placed sufficient weight on the influence of the Yoruba culture in reaching their

decision. The case of Crawford v CPS elicited some interesting comments on

appeal. The High Court accepted the appellant’s submission that the Crown

Court had been wrong to refer to his culture because it meant ‘…that a person

of the appellant’s culture would have a less ready understanding of what

amounted to harassment than a white person. This was condescending,

unjustified and unfair and assumed that the culture of the defendant pre-

disposed him to act in certain ways.’ Here we see implicit reference to

essentializing and agency and this is ruled ‘unfair’. The decisiveness in this is

helpful but there seemed to be a missed opportunity for a deeper judicial

exploration of the issues involved.

The one appeal linking culture to the traditional defence of provocation, Re

SzeHua Tai, created the perfect scenario for the appeal court to explore the

relationship between cultural background and provocation but the Court of

Appeal said that whilst the defendant’s cultural background ‘…mitigated the

criminality of the conduct a little’ the minimum term of 12 years should remain as

mitigating circumstances had been properly addressed at trial. This seems like

a wasted opportunity. A summary of other cases is set out in the note below. For

the sake of completeness, the appeals in all 6 of these other cases were

dismissed too meaning that in our group of 12 cases there was not one

successful appeal against conviction.

The findings of this case analysis of Crown Court decisions can be summarized

in the following 10 points:

• The culture-responsibility relationship is a gendered dilemma with a

higher than average number of male defendants and a higher than

average number of female victims.

• Female defendants rarely act alone in cases involving culture (here in

one case, 3%)

• There is a very low guilty plea rate (3% compared with the average of

67% at Crown Court level).

• There is a very high conviction rate (100% compared with an average of

80% at Crown Court level).

• ‘Honour’ is a factor in 50% of cases but is never raised by the defence.

• Culture is not recognized in the context of the traditional defences of

provocation and diminished responsibility.

• Judges acknowledge culture but do not allow it to influence their

directions to the jury and do not allow it as evidence in deciding guilt.

• There is a high appeal rate 72%.

• 100% of appeals against conviction are dismissed.

• The appeal courts only engaged with culture in 6 cases (50%)

Tentative conclusions about the engagement between culture and legal

responsibility in the criminal courts will be drawn in section 3.5 when the

analysis of sentencing decisions, sentencing policy and the response of the

criminal justice system to issues of culture is complete.

Sentencing

The 9 cases not appealed all involved ‘honour’ killings and there are no

sentencing remarks available for these cases. Of the remaining 23 cases a total

of 14 appeals against sentence were heard. The appeals were dismissed (or

leave to appeal not granted) in 10 of those 14 cases. Looking firstly at the 4

cases where the sentence was changed, in only one case was there an

increase in sentence (Re AG Ref (No. 66 of 2010)). This deserves comment

because the trial judge had indicated that the defendant, who came from an

‘African culture’, had been influenced by his culture in raping his wife. The

Attorney General’s reference was allowed on the basis that the sentence was

unduly lenient and the Court of Appeal said that cultural background should be

irrelevant in sentencing ‘…particularly for a defendant who had lived in the UK

for some years and knew his actions were unacceptable.’ There is oblique

reference to acculturation (as there was in Re AG Ref (No 1 of 2011) which

followed shortly afterwards) and the sentence was increased from 7 to 11 years.

In fact, the Court of Appeal seems to have shown most resistance to cultural

factors being taken into account in mitigation in the 4 appeals in marital rape

cases with the firm statement that ‘… no man, whatever his background race or

creed has the right to rape his wife.’(R v MA). This is definitive and therefore

helpful.

following question: ‘What criteria do you use for deciding whether or not to publish judgments,

rulings and sentencing remarks on your website and Twitter?’ The reply is as follows:

Publication of judgments, rulings or sentencing remarks is undertaken by the Judicial

Communications Office on behalf of the judiciary. These are published on the Judiciary

website, and highlighted through Twitter, if the nature of the media or legal profile of a

case suggests it would be helpful. The majority of cases are publicised because of the

actual or predicted level of media interest. In some instances, however, the Lord Chief

Justice or another senior judge might flag a case as one that gives specific guidance on

legal issues such as sentencing. Publication of sentencing remarks from Crown Court

cases is again generally governed by the level of media interest, but will also depend on

them being available to us: it is important to note that not all judges have full written

script of the remarks they make at the time the sentence is handed down.

It seems extraordinary, given the level of the media interest in the 9 ‘honour’ killing cases

reviewed here, that sentencing remarks were not published in any one of them. We do not know

therefore whether or not culture was raised in mitigation at the sentencing stage.

In 3 cases sentences were reduced. In R v Cooper (Justin Shane) Cooper

appealed against a custodial sentence of 9 months following a dangerous

driving conviction on the grounds that he was a member of a devout religious

community and prison would cause him ‘greater upset than normal’ and that he

may be excluded from his community upon release from prison. His appeal was

dismissed on the basis that ‘many people from different backgrounds, whether

they be religious, cultural or ethnic would have particular difficulty coping with

imprisonment and the court would have considerable difficulty distinguishing

between members of different groups on that basis.’ Although the appellant’s

custodial sentence was not reduced his driving ban was reduced from 2 to 3

years.

We have already considered the case of R v Sebastian Pinto and Others which

involved charges of child cruelty based on kindoki. Two of those convicted

raised successful appeals against sentence with the Court of Appeal finding that

a maximum sentence should be passed only in ‘truly exceptional cases’. Here it

was held that the appellants were not acting maliciously and inflicting harm

gratuitously but in the deluded belief that the child was possessed by spirits and

whilst this did not provide mitigation it was possible ‘to conceive of worse cases

involving prolonged cruelty.’ Their sentences were reduced to 8 years.

The sentence was reduced too in R v Goren with the Court of Appeal saying

that a revenge attack of the kind carried out here should always attract a long

sentence but that 7 years was too severe and therefore this was reduced to 5

years. Although counsel for the appellant argued that the victim’s beliefs were a

‘moral outrage’ in the defendant’s community the Court of Appeal stated that the

sole question before them was one of severity of sentence. In each of these 3

cases there is a manifest reluctance to really begin to engage with the cultural

issues at stake and to consider their effect on responsibility. Yet somehow there

is a ‘reason’ for reducing the sentences. If there is a sense that outcomes are

just there is a concern that they are arrived at circuitously. There is a sense that

culture is evaded.

We can see further reluctance to engage with culture in the appeals against

sentence that were dismissed. The appeal courts did not engage with culture at

all in 4 of the cases even though 2 of these involved high profile ‘honour’

killings. In Re Siva Kumar the trial judge identified the defendant’s cultural

background as the only mitigating factor in sentencing, noting that the family

had come from Sri Lanka to escape civil war. On appeal these mitigating factors

were accepted on the basis that the appellant would find his time in custody

harder to bear because of cultural and linguistic unfamiliarity with those around

him (although the appropriate minimum term of 17 years remained). This is in

marked contrast to the remarks in R v Cooper (Justin Shane). In R v Sze Hua

Tai, where cultural background was raised in the context of provocation the

appeal court ruled that

‘..it mitigated the criminality of the conduct a little’ (although the minimum term of

12 years was to remain as mitigating circumstances had been properly

addressed at trial). And so we see 2 cases here (Re Siva Kumar and Re Sze

Hua Tai) where culture is recognised by the appeal courts as a mitigating factor

yet the appeals against sentence are dismissed. Outcomes and reasoning are

in direct contrast with the 3 cases (above ( R v Cooper (Justin Shane), R v

Sebastian Pinto and Others and R v Goren) where appeals are allowed and

sentences reduced but whilst culture is clearly present it is not acknowledged as

relevant to the sentencing appeals.

The Court of Appeal did consider culture a little more closely in R v Khan

(Adeel) but made it clear that it was only doing so because the appellant had

been 17 when convicted of attempted murder and the question was whether he

had been put under ‘substantial or tangible pressure’ from an older person but ‘a

vague appeal to cultural pressure’ could not assist even a child and so the 15

year sentence was to stand. The final case to be considered is R v Jamal

Muhammed Ul Nasir, particularly interesting because it was the culture of the

young victims of sexual assault by Ul Nasir that was an ‘aggravating factor’

justifying his sentence of 7 years.

How then can we summarise the findings from this analysis of appeals against

sentence involving culture?

• 10 out of 14 appeals against sentence dismissed (71%).

• Appeal courts engaged with or recognized culture at some level in 10 out

of 14 cases.

• 3 cases where appeal against sentence was successful and cultural

reasons acknowledged but other reasons for reduction given.

• 2 cases where cultural background recognized as mitigation.

• Long sentences not reduced on appeal for marital rape and oblique

reference to acculturation.

Again, conclusions will be considered in section 3.5. Whilst sentencing is by its

very nature approached on a case by case basis we do see unacceptable

idiosyncrasies here, a lack of consistency in the treatment of culture in

sentencing decisions. Recalling that the understanding of responsibility arrived

at in section 2.3 includes not just the attribution of responsibility at the guilt

stage but the degree of responsibility deemed just in the disposition of those

found guilty, clear guidance on the effect of culture on ‘responsibility’ at the

sentencing stage is essential.

It would be helpful here to assess the extent to which current sentencing laws

provide adequate guidance on issues of culture.63 The introduction of

Sentencing Guidelines has been considered in many countries but it is only the

jurisdictions of the US and England and Wales that have adopted formal

guidelines. The Sentencing Guidance Council was established in 2003 (the

Sentencing Council since 2010) with guidelines being introduced by the

Coroners and Justice Act

63 Sentencing law generally is considered to be in need of reform in England and Wales. In July

2017 the Law Commission published its draft Sentencing Code and a period of public

consultation ended on 26th January 2018. The Law Commission Final Report was published in

the summer of 2018 and a draft bill is now in Parliament. Law Commission, Draft Sentencing Bill

<http://www.legislation.gov.uk/ukdpb/2017/sentencing - bill/contents > accessed

5th October 2017.

On 26th July 2017, David Ormerod, the Law Commissioner running the reform project, explained

in The Independent that the code is an attempt to consolidate the law on sentencing that

currently runs to 1300 pages and is ‘overwhelmingly complex’ in one document.

<https://www.independent.co.uk/news/uk/home - news/law - commission - sentencing -

law consultation - simplified - streamlined - courts - judges - delays - errors - a7861896.html >

The code does not seek to replace the individual published Sentencing Guidelines but to set out

the general principles of sentencing law. Ormerod explains that in the year to 30th September

2016 1.2 million offenders were sentenced and there were 4241 appeals against sentence and

4072 applications to the Court of Appeal for leave to appeal against sentence.

2009 and now, under S125 of that Act every court must follow any sentencing

guidelines that are in force. According to Ashworth and Roberts, sentencing

guidelines in England and Wales have produced no attention from scholars but

Padfield has engaged, arguing that there is little sense of what the guidelines

are meant to achieve and little idea of how judges actually sentence. In general,

individual guidelines give a starting point for sentence and then there are

specific aggravating or mitigating factors that need to be taken into account in

increasing or reducing the sentence from that starting point. In addition there is

the possibility of a defendant raising personal mitigation although there is no

entitlement to it. (It is important to note the distinction between mitigating factors

in relation to specific offences and personal mitigation although more recent

guidelines tend to include one list for ‘factors reducing seriousness or relating to

personal mitigation.’). The guidelines are intended to be developed over time

and in relation to specific offences but they do appear to be being implemented

slowly. There are now 33 sets of ‘definitive guidelines’ currently in publication

and there is a claim that ‘…sentencing in this jurisdiction [has] entered a new

era’.67 It is of course necessary for us to question whether sentencing is fit for a

multicultural era.

In 2004 the (then) Sentencing Guidance Council produced guidelines on

‘Overarching Principles: Seriousness’. These are still in force and intended to be

used where no offence specific guidelines have been published. There are 22

aggravating factors (and 4 statutory mitigating factors but a separate list of 12

factors that may affect personal mitigation) and these include:68

• The offence was racially or religiously aggravated

• The offence involved hostility towards a minority group

• The offence deliberately targeted vulnerable victims

Again, we can question whether there is oblique inclusion of culture here. As

seen above in R v Jamla Muhammed Raheem Ul Nasir the Court of Appeal held

that the shame of the victim was relevant in considering increasing a custodial

sentence.69 Commenting on this Gill and Harrison identify a backlash for

example

67 In 2018 6 sets of guidelines were published relating to child cruelty, manslaughter,

intimidatory offences, terrorism, bladed articles and offensive weapons and domestic abuse.

In 2017 there were 2 in relation to Reduction in Sentence for Guilty Plea and Sentencing

Children and Young People. In 2016 these were relating to robbery, dangerous dog offences

and the imposition of community and custodial sentences.

<https://www.sentencingcouncil.org.uk/publications/?type=publications&s=&cat=definitive -

guideline&topic=&year=on> accessed 20th January 2017 Ashworth

and Roberts (n 198) 5.

68 <https://www.sentencingcouncil.org.uk/wp - content/uploads/web_seriousness_guideline.pdf >

accessed 2nd May 2018.

The 4 mitigating factors are a greater degree of provocation than usually expected, mental

illness or disability, youth or age and playing a minor role in the offence.

These overarching principles were of the first to be published by the (then) Sentencing Guidance

Council in December

2004.https://www.sentencingcouncil.org.uk/wp content/uploads/web_seriousness_guideline.pdf

69 Regina v Jamal Muhammed Raheem UL Nasir [2015] Royal Courts of Justice

Strand, London, WC2A 2LL

<https://www.judiciary.uk/wp - content/uploads/2015/09/r - v - ul - nasir - judgment.pdf > accessed 30th

September 2018.

from the NSPCC (‘British Justice should operate on a level playing field and

children need to be protected irrespective of cultural differences’) and from

Philip Davies MP who points out that it is unacceptable to say that sexually

abusing Asian girls is more serious than sexually abusing white girls.70 Gill and

Harrison say that it raises the question of how courts should deal with cases

where cultural religious or ethnic factors are not as easily identified as relevant.

In relation to the culture-responsibility relationship it would be illogical to argue

that we should be considering the culture of the defendant but not the victim. If

responsibility is to be diminished or understood in the context of its relationship

to culture then should not the effect of crimes also be understood in the cultural

context? That way too the culture-responsibility relationship cannot be seen

merely as an easy route to leniency- it becomes a two way process. This of

course has implications for equality.

In June 2018 the Sentencing Council opened a consultation on new ‘General

Guidelines’ to be used where there are no offence specific guidelines in force.71

Draft guidelines were produced and the balance of aggravating factors (23) and

mitigating factors (17) remains similar to that in the 2004 ‘Overarching

Principles’

70 A Gill and K Harrison, (2017) ‘Ethnic and Religious Origin as an Aggravating Factor in

Sentencing Sexual Offences’ (2017) Journal of Sexual Aggression

<https://www.tandfonline.com/doi/abs/ 10.1080/13552600.2016.1267271 > accessed 30th

September 2018.

Comments of Philip Davis reported in The Times (18th September 2018)

‘Molesting Asian girls deserves a longer sentence’

<https://www.thetimes.co.uk/article/molesting - asian - girls - deserves - a - longer - sentence -

6g3kt6bp025 > accessed 1st October 2018.

71 The consultation closed on 11th September 2018. It is the aim of the Sentencing

Council to update all guidelines by 2020. The Council has identified certain serious or high

volume offences for which there are no guidelines in force and these new General

Guidelines are intended to cover those offences.

<https://www.sentencingcouncil.org.uk/offences/item/general - guideline - sentencing - offences -

for which - there - is - no - definitive - guideline - for - consultation - only/ > accessed 30th September 2018.

but mitigating factors now include both ‘factors reducing seriousness or

reflecting personal mitigation’ and the list given is said to be ‘not exhaustive’.

There are two previously unseen mitigating factors that are noteworthy. Firstly,

‘activity previously legitimate.’ Explanatory notes say that this could be due to a

change in the offenders circumstances or a change in regulations. The obvious

question is ‘previously legitimate where and when?’ And of course ‘legitimate’ is

not the same word as ‘legal’. Secondly, ‘limited awareness or understanding of

the offence’. Explanatory notes say that this could include the offender not

understanding the ‘significance’ of the offence. There is no obvious connection

with culture in these two mitigating factors but could they apply to an offender

who views his actions as ‘culturally legitimate’ or whose altered moral viewpoint

leads him not to understand the significance of his offence?

Three new sets of guidelines came into effect in 2016 and two in 2017 although

2018 has seen some momentum with the introduction of 6 sets of guidelines,

the latest being Definitive Guidelines on Child Cruelty, due to come into effect

on 1st January 2019. This guideline is particularly significant as it includes a

distinct and specific set of guidelines for the offence of failure to protect a girl

from FGM. It is practice for the Sentencing Council to hold an open consultation

prior to the drafting and publication of new guidelines and in the case of the

child cruelty consultation although no specific questions were asked on FGM

‘most

respondents’ were supportive of the introduction of guidelines for this offence.

One respondent stressed the need to take cultural background into account but

the Sentencing Council felt this could be covered by the low culpability

provisions. The new FGM guidelines do not include direct reference to culture

but one of the factors ‘reducing seriousness or reflecting personal mitigation’ is

that the offender is ‘particularly isolated with limited access to support.’ That

sounds very much like another back door route to ‘culture’.

These new FGM guidelines are not alone in overlooking culture. Not

surprisingly there is no direct reference anywhere to culture within the

provisions of the Coroners and Justice Act 2009 or within the remaining 32

published guidelines, although once again perhaps we can tenuously establish

indirect reference.

Murder, sexual offences and domestic violence are those offences most closely

related to the culture-responsibility relationship and sentencing guidelines show

no consistency in their engagement with culture. Guidelines on the

Determination of Minimum Term in Relation to Mandatory Life Sentence are set

out in Schedule 21 of the Criminal Justice Act 2003. Factors that may increase

the seriousness of the offence may resonate in cases where there is a cultural

element. For example,

• V is vulnerable due to age.

• Mental or physical suffering, including sexual maltreatment,

humiliation or degradation inflicted on V before death.

• Abuse of position of trust or power.

• Established evidence of community impact.

• Racially or religiously aggravated.

Updated guidelines in relation to domestic abuse were published in February

2018 and came into force on 24th May 2018. They provide a definition of

domestic abuse as ‘presently used by the Government’ and point out that the

Government definition includes so-called ‘honour based abuse’, FGM and

forced marriage. Paragraph 5 of the guidelines states that ‘…care should be

taken to avoid stereotypical assumptions regarding domestic abuse.

Irrespective of gender, domestic abuse occurs amongst people of all ethnicities,

sexualities, ages, disabilities, religion or beliefs, immigration status or socio–

economic backgrounds. Domestic abuse can occur between family members as

well as between intimate partners.’ This comes close to culture, including some

of those elements that we identify as being part of culture in section 2.2 of this

thesis (ethnicity, religion, belief) yet the previous guidelines on domestic abuse

referred to the victim’s particular vulnerability for ‘…cultural, religious, language,

financial

or other reasons’ as an aggravating factor whereas the new guidelines refer

simply to the victim’s ‘particular vulnerability.’ 77 This was the only direct

reference to culture in the (then) 27 published sentencing guidelines, albeit the

culture of the victim, and it is has disappeared. Recognising ‘honour’ based

abuse, FGM and forced marriage as being within the government definition of

domestic abuse but furthering the recognition of those crimes within the context

of sentencing seems like a wasted opportunity. Obviously we now know that

FGM guidelines are included in the child cruelty guidelines but the question has

to be asked, is this another case of ‘hiding’ culture away?

Looking at the balance between aggravating and mitigating factors, further

analysis of the 33 published Sentencing Guidelines reinforces Cooper’s views

that there is an overemphasis on aggravating factors and seriousness and

harm. Guidelines on mandatory life sentence for murder, sexual offences and

domestic abuse, those most relevant to the culture-responsibility relationship,

show a lack of balance between aggravating and mitigating factors-

Table (2) Aggravating and Mitigating Factors in Sentencing

Offence Aggravating

Factors

Mitigating

Factors

Murder 20 8

Domestic

Abuse

9 2

Sexual

Offences

16 5

Cooper argues that the Sentencing Council is too victim focused and that

guidelines should give much greater attention to personal mitigation as it is ‘…

one of the most important elements of a just and fair disposition.’ He is critical of

the Sentencing Council (and of the Court of Appeal which is responsible for

guidance on sentencing where no specific guidelines exist) for emphasizing

seriousness and harm rather than personal mitigation. He recognises a tension

between the directive in Section 125 (1)(a) of the Coroners and Justice Act 2009

(that the court must follow sentencing guidelines) and the Court of Appeal

guidance in case law that sentencing decisions should be made ‘in the interests

of justice’. Cooper relies on research from the Prison Reform Trust that gathers

empirical evidence and finds a correlation between personal mitigation and

lighter sentences and argues that ‘…the importance of personal mitigation goes

beyond that of the direct impact of sentencing on the defendant. 80 In diminishing

the role of personal mitigation to such an extent it is not only the offender who

may be punished inappropriately but it is also society as a whole that will

suffer’.81 Despite Cooper’s pleas and further research by Lovegrove who

analysed the findings of the Victoria Law Foundation in Australia which identified

45 personal mitigating factors as reducing culpability in cases heard between

2004-2006 Cooper argues that the Sentencing Guidelines marginalize personal

mitigation. 82 The Sentencing

Council state that their aim is ‘public confidence’ but Cooper argues that ‘…the

Sentencing Council appear to have decided that the public expect punitive

responses to offending, ones based on culpability and harm. The real

expectation is one of a pursuit of fairness and justice and this must include a

80 Jessica Jacobson and Mike Hough, ‘Mitigation: The Role of Personal Factors in Sentencing’,

Prison Reform Trust

<http://www.prisonreformtrust.org.uk/uploads/documents/FINALFINALmitigation%20 -

%20small.pdf > accessed 1st October 2018

81 J Cooper, ‘Nothing Personal’ Chapter 10 in Ashworth and Roberts (n 198) 159. For example,

personal mitigation might reveal that a non-custodial sentence is better for rehabilitation. Pre-

sentence reports, claims Cooper, are ‘harm-centric’ and do not focus on rehabilitation and

reform. Personal mitigation in cases involving culture could arguably led to a deeper

understandings of the motives of others and provide the opportunity for mutual crosscultural

education.

82 Austin Lovegrove, ‘Proportionality Theory, Personal Mitigation and the People’s Sense of

Justice’ (2010) 69 (2) Cambridge Law Journal 321.

central role for personal mitigation.’ Public attitudes towards sentencing are

important and well researched. Roberts et al carried out a large scale empirical

study to assess public attitudes to sentencing and concluded that ‘…it is

important to ensure that there is an appropriate relationship between public

opinion and sentencing practice.’ That research showed that the public have

high levels of support for personal mitigation but that there is judicial reluctance

to consider it. Cooper recommends that the Sentencing Council produce a

definitive list of factors that could be used in personal mitigation and the

argument here is that ‘cultural factors’ should be included on that list.

Bakalis and Sage argue that religion is a useful example to explore mitigation

especially in the context of Articles 9 and 14 of the European Convention on

Human Rights (ECHR). The Prison Reform Trust highlights the need for more

consideration of how and to what extent religion should be taken into account at

the sentencing stage ‘…without this, sentencing outcomes are likely to vary

between judges and thus to threaten the principles of fairness which we expect

from our criminal justice system.’ It concluded that judges are reluctant to take

religion into account in sentencing but that they do need to comply with Articles

9 and 14 of the ECHR. However, it did identify three types of personal mitigation

recognised by judges in relation to religion:

• Previous good character can relate to culpability and membership

of a religious group may be evidence of good character.

• A defendant is less likely to offend in future.

• A defendant may have a problem with specific type of punishment,

for example, coping with a custodial sentence as seen in Re Siva

Kumar.

More recently sentencing remarks in the case of R v Darren Osbourne, better

known as the ‘Finsbury Park Mosque Case’, confirmed that there should be no

defence or even mitigation in cases of ‘murder done for the purposes of

advancing a political, religious, racial or ideological cause’ even if radicalization

is claimed. Osbourne was convicted of murder and attempted murder with a

recommendation that he serve 43 years.

Generally there is a cry for policy makers and the Sentencing Council to make

clear what mitigating factors can be taken into account in personal mitigation.

The findings of this chapter add weight to that collective cry. On the basis that

the 14 cases discussed in this section that resulted in appeal against sentence

involve some cultural element it must be argued that due consideration of

culture in our trial courts is essential. Lord Lane comments that sentencing is ‘…

trying to reconcile a number of irreconcilable facts.’ To this should be added the

plea that culture needs to be considered in the context of sentencing so that

magistrates and judges might have clear guidance on the relationship between

culture and both aggravating and mitigating circumstances and of course in

relation to personal mitigation. We are beginning to see a slow contextual

recognition of culture in sentencing cases but this needs expanding.

3.4 The Criminal Justice System

This section seeks to examine the engagement between the institutions of the

criminal justice system and culture. The journey of offenders in the criminal

justice system is followed in turn through the stages of investigation (the Police)

prosecution (the Crown Prosecution Service) and trial (the Judiciary).

The Police

The criminal justice system begins with the investigation of crime. Suspects may

be arrested and held in custody prior to being charged. There are strict and

detailed rules on detention and custody now set out in the 2015 National Police

Chief’s Council (NPCC) College of Policing Document on Detention and

Custody. There is a section on ‘Equality and Individual Needs’ and paragraph 5

deals with Religious and Cultural Needs. This document was updated in August

2015. The previous (2012) document stated that ‘…it is not permissible to treat

a person less favourably because of their faith, belief or culture. The specific

needs of a person are best determined by effective and respectful questioning…

Religion culture or nationality should never be assumed.’ The current version

has deleted this first sentence, perhaps because culture is not a characteristic

protected by law under the Equality Act 2010 whereas, broadly, the ‘faith and

belief’ are covered by religion. A former long list of ‘additional needs’ has also

been significantly shortened to include just copies of religious texts, advice to

Muslim detainees on the direction of Mecca (eg, a compass or mark applied to

the eastern cell wall of one or more cells) and halal, kosher, vegetarian and

vegan meal alternatives.91 We can see therefore a diminution in the emphasis

on culture in the 3 year period from 2012 to 2015.

As well as guidance for custody the College of Policing have recently produced

guidance on FGM (March 2015) and on Forced Marriage and HBV (June

2014).92

91 ibid

The previous document included a long and detailed list of requirements including the following:

Custody managers should consider providing a separate room for use as a prayer room, or for

detainees to receive official visitors such as local faith leaders. Arrangements should be made

for providing:

copies of the Koran, the Bible and the Torah (Islam requires that copies of the Koran be

kept neat and wrapped securely away from contamination)

advice to Islamic detainees on the direction of Mecca (eg, a compass or mark applied to

the eastern cell wall of one or more cells) halal, kosher, vegetarian and vegan meal

alternatives.

Note: someone who is vegetarian on ethical grounds should have this belief respected

in the same way as if they were vegetarian on religious grounds.

Religious considerations:

Custody staff should facilitate any reasonable requests wherever possible in respect of religious

considerations, particularly:

facilitating times of prayer, including the requirement of some faiths that various parts of

the body are washed prior to doing so

asking the person for their prayer times and informing them when they are due reading

religious texts

food and drink (food type and timing with regard to fasting)

visits from local faith leaders prayer times.

Due respect should be given to all religious artefacts retained in custody offices for the use of

detainees.

Prayer times. Members of the Islamic faith are required to pray five times daily, at times which

vary according to the season. Custody officers should ensure that enquiries are made (eg, with

local faith leaders) to establish those times in advance, so that interviews and meal times may

be organised around them.

92 College of Policing, Major investigation and public protection, Female genital mutilation

(March 2015) <https://www.app.college.police.uk/app - content/major - investigation - and -

public protection/female - genital - mutilation/ >

College of Policing, Major Investigation and Public Protection, Forced Marriage and Honour

Based Abuse (June 2014) <https://www.app.college.police.uk/app - content/major -

investigation and - public - protection/forced - marriage - and - honour - based - violence/ >

Forced marriage is now to be treated by the Police as a form of HBV. In

December

2015 HM Inspector of Constabulary reported on the response of the Police to

HBV, broadly defined to include forced marriage and FGM.93 The inspectors

found a ‘mixed picture’ stating that the police service have ‘…some way to go

before the public can be fully content that HBV is properly understood by the

police and that potential and actual victims are effectively protected.’ Part of the

problem is that there is ‘no strong evidence base on what works in policing to

prevent harm and to protect victims.’94 A victim engagement project, undertaken

as part of the report, identified ‘honour’ as a critical fact because ‘…while HBV

has features in common with domestic abuse and gender based violence …it is

the aggravating factor of perceived ‘honour’ that shapes the context of abuse.’95

The report made a total of 14 recommendations to the Home Office, the NPCC,

chief constables and the College of Policing, the overall aim being to eradicate

‘honour’ based abuse, forced marriage and FGM but made it clear that ‘…due

respect must always be given to lawful cultural traditions and sensitivities but

these should not be barriers behind which desperate people are imprisoned.’96

The challenge, once again, is balancing these competing demands. The time

frame for the implementation of these recommendations was March, June or

December 2016. It is not clear whether these have been successfully

implemented. The Metropolitan Police have produced a number of online fact

accessed 18th September 2018.

A recent change in reference from ‘honour’ to ‘dishonour’ in relevant literature is a positive step

but the label HBV is used here to reflect policy and practice. 93 ‘The Depths of Dishonour:

Hidden Voices and Shameful Crimes’

<https://www.justiceinspectorates.gov.uk/hmicfrs/wp - content/uploads/the - depths -

of dishonour.pdf >

Accessed 1st October 2018.

94 ibid [5.9].

95 ibid 14. 96 ibid 6.

sheets in relation to various crimes including HBV. These are accessible and

informative and perhaps satisfy Recommendation 4 which requires awareness

raising. The NCCP national strategy for eradicating HBV, forced marriage and

FGM pre-dated the HMIC Report.

In 2015 Mulvihill et al carried out research on the experiences of victims of HBV

reporting to the police. This is based on a framework of interactional justice, a

concept that measures a victim’s feelings of being respected and informed,

which in turn are related to feelings of self-worth and belonging. Researchers

found that empathy and validation are critical in the first contact with police. 20

in the research sample of 36 participants were happy with their initial encounter

but only 9 out of 36 were happy with the reporting experience overall.

With regard to FGM The Metropolitan Police have also set up ‘Project Azure’, a

response to FGM advocating a coordinated drive to eradicate FGM through

prevention, protection, partnership and prosecution yet there is ongoing criticism

of the Metropolitan Police for not securing a successful FGM prosecution and in

particular for not knowing where in their jurisdiction that FGM takes place. The

Police have taken other initiatives to tackle ‘cultural crime’. Project Violet is the

response of the Metropolitan Police to witchcraft or ‘faith based child abuse’.

There is also a National Action Plan to tackle abuse linked to faith or belief

which identifies the main challenge as working with communities and faith

leaders and raising awareness and encouraging reporting. However, there

seemed to be momentum around faith based abuse back in 2012, perhaps as a

result of the Victoria Climbie, case and these earlier initiatives do not seem to

have been updated.

Although the Forced Marriage Unit, set up in 2012, is a joint initiative between

the Foreign and Commonwealth Office and the Home Office the Police are

committed to the eradication of forced marriage. Individual forces seem to have

adopted protocols on forced marriage and taken measures to make

reporting as easy as possible. There is criticism that the Police have been too

timid in tackling forced marriage leading to media comments such as ‘..the

answer to tackling [forced marriage] lies in forcefully entering ghettoized,

backward communities.’105 Perhaps this seems shocking but there is a need to

avoid accusations of the kind of misplaced political correctness that, it is argued,

led to the Rotherham scandal and the failure to protect victims of abuse.

Crown Prosecution Service (CPS)

‘Cultural crime’ is placed within the CPS’s violence against women and girls

strategy which in turn lies within the human rights framework recommended by

the United Kingdom’s strategic priority for the CPS and one of nine identified

mission critical projects. A CPS pilot launched in July 2007 whose purpose is to

identify and monitor forced marriage and honour crimes and to inform

development of national guidance and training for prosecutors and this flagging

system has continued so that forced marriage and Honour Based Violence

crimes are identified as a separate category.106 There is also CPS guidance on

forced marriage and Honour Based Violence with revised guidance being

published on 28th June 2018.107 In its Tenth Annual Report on Violence Against

Women and Girls figures show that there were 200 HBV flagged cases in

2016/17. 108 There are 136 ‘charged’ cases and from these there are 90

convictions and 81 unsuccessful outcomes. The statistics do not make for easy

interpretation, possibly because some incidents are charged in a number of

<https://www.independent.co.uk/voices/forced - marriage - happens - in - the - uk - because - police -

are scared - of - being - labelled - racist - a6998296.html > accessed 5th October 2018.

This comment comes form Yasmin Choudhury who was taken to Pakistan at the age of 7 and

witnessed the forced marriage of a 17 year old girl. The interesting question is whether her

views carry more validity because of her own cultural background.

106 (June 2014) <https://www.cps.gov.uk/legal - guidance/honour - based - violence - and -

forced marriage > accessed 5th October 2018.

107 Revised Guidelines (28th June 2018) <https://www.cps.gov.uk/legal - guidance/honour -

based violence - and - forced - marriage > accessed 5th October 2018.

108 (November 2017) <https://www.cps.gov.uk/sites/default/files/documents/publications/

cps vawg - report - 2017_0.pdf > accessed 5th October 2018.

different ways. Looking specifically at forced marriage there were 56 referrals to

the CPS (90 in 2015/16) with 44 prosecutions and 32 convictions giving a

conviction rate of 72.7%. We know that there has only been one successful

prosecution for the offence of forcing someone to marry under S121 of the

AntiSocial Behaviour Crime and Policing Act 2014 and so these convictions

must be for other offences relevant to forced marriage though ‘flagged’. The

figures are thus misleading but looking behind them does not disguise the fact

that S121 of the Anti-Social Behaviour Crime and Policing Act is inefficacious.

When it comes to FGM clearly there are no figures to report with the CPS

acknowledging that mandatory reporting obligations on health professionals

under the Serious Crime Act has not increased the number of prosecutions

although it has led to an increase in safeguarding measures through the family

courts and the issue of FGMPO’s.

The CPS came under attack recently for not prosecuting ‘honour’ crimes for fear

of causing unrest in Asian communities but retaliated with an explanation of its

approach to charging. ‘The CPS makes charging decisions in every instance

without sway to political correctness or any other outside influence. Our role is

to examine the evidence, decide whether it is sufficient to present to a jury, and

then prosecute if it is in the public interest to do so’.110 There seems to be a

huge willingness on the part of the CPS (and the Police) to work towards

eradicating these crimes and towards combatting violence against women and

girls more generally but as argued in section 3.3 the emphasis on ‘cultural

crime’ within the legislative arena cannot be considered the best way forward. In

the 2016/17 Report the director of the CPS called for further training for

prosecutors in 2017/18 on ‘harmful practices’.

The Judiciary

In February 2010 the Advisory Panel on Judicial Diversity reported to the Lord

Chancellor and made 53 recommendations for achieving a diverse judiciary.

The Judicial Diversity Taskforce was set up with a view to ensuring

implementation of the recommendations and this has now been replaced by the

Judicial Diversity Forum. The Judicial Appointments Commission was set up in

April 2006 under the Constitutional Reform Act 2005 with a view to ensuring a

fair and transparent process for selecting candidates for judicial office. Part of its

remit is ‘…to have regard to the need to encourage diversity in the range of

persons available for judicial selection.’ To assist in this the Crime and Courts

Act 2013 has a tipping point provision that allows cultural diversity to be taken

into account for the purposes of increasing judicial diversity when two applicants

are in all other ways of equal merit. The judiciary is becoming more diverse.

Focusing on ethnic diversity Judicial Diversity Statistics for 2018 show that 7%

of court judges and 11% of tribunal judges are of BME origin. In the case of

court judges this percentage is only slightly below that of the working age

general population.113 There are now over 100 members of the ‘Diversity and

Community Relations Judiciary’ (DCRJ) whose remit is to dispel myths

surrounding the judiciary and to act as a link between the courts and local

communities on a voluntary basis so that there is increased public confidence in

the legal system and so that outdated perceptions of the judiciary are

challenged. This DCRJ network was originally set up to work with BME

communities but it works now with all under-represented groups.

However, there is not necessarily a direct correlation between a diverse judiciary

and diversity of views. The recent ‘fracking case’ which has led to calls for

judicial review on account of the severity of the sentences passed is significant

for the comment of the judge Robert Altham who felt unable to suspend the

sentences because the offenders had no hope of rehabilitation as ‘…each of

them remains motivated by an unswerving conviction that they are right.’ There

is an argument for ensuring that this newly diverse judiciary is adequately

trained in diversity issues.

Since the Constitutional Reform Act 2005 the Lord Chief Justice has

responsibility for training the judiciary in England and Wales. The Judicial

College was set up in 2011 with a view to undertaking this training. The most

recent strategy document of the Judicial College outlines the vision, objectives

and overriding principles of the College. The Vision is to be a ‘world leader in

judicial education and training.’ The governing principles set out what is

included in judicial training. As well substantive law, evidence and procedure

and the acquisition and improvement of judicial skills, training aims to cover ‘…

the social context within which judging occurs’. ‘Social context’ is stated to

include diversity and equality and the need to relate to and communicate with all

manner of people from a variety of backgrounds with different needs capacities

and expectations.

However, an analysis of the Judicial College Prospectus for 2018-19 shows that

there is no reference whatsoever to culture and very little reference to equality

and diversity. A review of judicial education and training in other countries

prepared for the Judicial Studies Board in 2006 found that all the jurisdictions

analysed offered training in ‘social context’ but this amounted to simply

understanding the potential for discrimination. The 2018/19 Prospectus

includes seminars on leadership and management and separate ones on case

management. There is a general seminar for District Judges that includes

‘issues of bias and diversity’ and a general seminar for Deputy District Judges

that includes content on domestic violence. There is one for judges on

Sentencing which includes updates on new guidelines and on sentencing law

and promises to look at ‘…sensitive and often difficult areas such as domestic

violence, sentences involving defendants who are carers, defendants who are

young, defendants who may have been trafficked and defendants with mental

heath problems.’ There is a gap crying out to be filled with ‘defendants with

different

cultural backgrounds.’ Those trafficked might of course have different

backgrounds but they are singled out here because of the trauma of that

trafficking.

The latest Equal Treatment Bench Book (ETBB) was published on 28th February

2018. It is a living document that is constantly updated, the latest amendments

being made in August 2018. The aim is ‘…to increase awareness and

understanding of the different circumstances of people appearing in courts and

tribunals.’ It is a manual for good procedural practice at all levels in the criminal

justice system and is, in contrast to other areas of the criminal justice system

that we have examined, enlightened. It contains new sections on litigants in

person, refugees, modern slavery, multicultural communication and

Islamaphobia and anti-Semitism. If judges adhered to the guidelines in this

comprehensive document culture in the courtroom could become much less

problematic. This is one of the few documents reviewed in this thesis that

demonstrates a real understanding of culture, that is not afraid to count culture

as among the tangible influences that make up our socially diverse world. Of

course, it is only setting out requirements relating to culture in the procedural

realm and has no bearing on substantive law. Therefore whilst it does not

impact directly upon the culture-responsibility relationship it is of great value as

an illustrative example of how the criminal justice process can interact with

culture.

A well as outlining what the approach of the judiciary should be to equality

(raised in section 2.4) the ETBB recognises the endemic cultural bias in the

legal system that we raised in section 2.4 stating that ‘…people perceive the

words and behaviour of others in terms of the cultural conventions with which

they are most familiar’ so that judges need an ‘…awareness of where a person

is coming from in terms of background, culture, and special needs and of the

impact of those on participation in the process.’ However, paragraph 28 of

Chapter 1 lists those at a particular disadvantage in the legal process and whilst

those from ethnic minority communities are included there is no mention of

culture or cultural background and so there is some inconsistency around the

inclusion of culture. The ETBB warns too against stereotyping with the words in

paragraph 33 that stereotypes are ‘simplistic mental shortcuts’ and ‘often

grossly inaccurate’ and ‘ignorance of the culture’s beliefs and the disadvantage

of others encourages prejudice’ (paragraph 32). Most encouragingly of all the

ETBB promotes intercultural communication so that judges in England and

Wales have an understanding of, for example, the East Asian habit of ‘saving

face’ and the South Asian narrative style of taking a long time to get to the point.

We have seen how remorse, the most cited mitigating factor in sentencing, is

culturally loaded and misconstrued as lacking in this context.

If the judiciary/judicial appointments committee see the need for diversity to be

commensurate with the general population then it recognizes the de facto

multicultural population. If the Judicial College issues guidance for judges on

equal treatment of, inter alia, those from different cultural backgrounds in court

then it too recognizes that there will be litigants in court with different cultural

backgrounds. In the appeal of Shakeela Naz against sentence following

conviction for the ‘honour’ killing of her daughter Rukhsana, counsel for the

appellant referred to The Equal Treatment Bench Book, and warned against

ethnocentric assumptions and the danger that a court might deploy ‘…their

own assumptions to evaluate the behaviour of those whose cultural conventions

are different to their own’. The next step is the development of procedural rules

to ensure adherence to the principles recognised in theory but not always

followed in practice.

3.5 Conclusion

The first aim of the Chapter was to gather evidence to support and advance the

hypothesis that the culture-responsibility relationship has not been considered in

practice or policy. The aim was achieved by searching thematically for the

presence of culture and evidence of engagement with culture in both the

substantive criminal law and the criminal justice system. Overall, there is a

notable absence of reference to culture and minimal engagement between

culture and the criminal law and the criminal justice system of England and

Wales. It logically follows therefore that the culture-responsibility relationship

has not been considered in the context of the practice and policy of the criminal

law and criminal justice system of England and Wales.

Looking beyond this general conclusion we can see evidence of the following

patterns:

• The criminal law has engaged most fully with culture in the creation of

criminal offences, specifically the offences of FGM and forced marriage.

Legislation creates a forward looking responsibility through criminalising

harmful practices. It can therefore be said to widen the ambit of

responsibility which is why these offences are relevant to the

cultureresponsibility relationship. Such laws are of universal application

but they are clearly not directed at all members of society. Their

implementation can challenge generally accepted understandings of the

purpose of the criminal law and of criminalisation theory. Criminal

legislation aimed at preventing and eliminating the perceived harm in

FGM and forced marriage is ineffective.

• There is generally a much greater reluctance for the law to engage with

culture in the realm of personal responsibility at the stage of establishing

guilt. There is some scope within the loss of control defence to allow

culture to be included in a subjective understanding of a litigant ‘in the

circumstances of the defendant.’ Although the courts have not had the

opportunity to explore this since the loss of control defence replaced the

defence of provocation, in 3 of the cases reviewed the defence raised

culture in the context of provocation and the courts did not respond.

Judges at Crown Court and Appeal Court level have acknowledged

culture

in a limited number of cases but do not allow it to influence their

directions to the jury or to consider it as evidence in appeals against

conviction.

• There is a lack of clarity about the procedure for admitting evidence

relating to culture in the courts. This has resulted in courts dismissing

culture and where evidence has been adduced of group practices the

courts have not attempted to relate this to the individual defendant.

• At Crown Court level culture is more likely to be relied on by the

prosecution than the defence. However, there is a lower than average

guilty plea rate and a higher than average conviction rate which could

suggest that defendants believe in their innocence without necessarily

having any grounds in law for so doing.

• ‘Honour’ is never raised by the defence. It is construed very negatively by

both the prosecution and by the judiciary.

• Judges do allow cultural evidence in mitigation at the sentencing stage

and in appeals against sentence in a limited number of cases but there is

no clear guidance from the Court of Appeal or from the Sentencing

Council on this.

• Decisions on both guilt and sentencing are inconsistent and show a lack

of clear reasoning.

• The interaction between culture and the criminal law in practice does

seem to have implications for gender equality as we see a higher number

of male defendants and a higher number of female victims in criminal

cases involving culture than across criminal cases more generally.

• There is naturally a focus within the Police and the CPS on prosecuting

HBV, FGM and forced marriage all of which are situated in the violence

against women and girls framework and a strong commitment within both

organisations to working together to bring about the eradication of these

‘harmful practices’. However, the number of successful prosecutions

does not reflect the commitment to combatting ‘cultural crime’. In recent

years the Police appear to have pulled back from considering culture in

meeting the needs of offenders.

• There is notable reference to culture in policy documents relating to the

Judiciary, particularly from the Judicial College. There is a commitment to

creating a diverse Judiciary and to training the Judiciary in awareness of

cultural difference. Whilst we can see greater diversity in the Judiciary

this does not seem to be translating into a willingness to engage with

culture in the courtroom.

The second aim of the Chapter was twofold, to begin to try to understand

reasons for this absence of reference to culture and the lack of engagement

between culture and the criminal law and to begin to answer the research

question how should the criminal law of England and Wales respond to the

cultureresponsibility relationship? The evidence gathered from research for this

Chapter indicates a reluctance to engage with culture, perhaps due to

uncertainty possibly even due to an immanent fear of culture. Furthermore,

where there might be a willingness by the courts to consider culture as being in

some ways relevant in a particular case there seems to be a tendency to admit

culture ‘through the back door’ and so it is not openly acknowledged as being

influential or being significant in any way in understanding a defendant’s

behaviour.

We can suggest reasons for this. As we saw in section 2.1 culture is not a

protected characteristic for the purposes of the Equality Act 2010 and so whilst

we are becoming used to seeing reference to the 9 groups now protected by

equality legislation we are perhaps not comfortable with the unfamiliar, with the

idea of culture. The current protected characteristics are comprehensible

because they are either visible, self- identified or professed, objectively

determined or a matter of record. Despite a shift in understandings of some of

these characteristics in recent years, for example gender is now seen as a fluid

social construction rather than simply as a binary that is biologically determined,

society is or is becoming open to the need for equality for those possessing

these characteristics. We can therefore ascribe them reasonably confidently to

actors within the legal system. Culture is more nebulous. As we saw in section

2.2, it is an intangible complex whole with a myriad of meanings and we have

brought forward an understanding of it that insists upon it being conceptualized

as a construction unique to every individual, formed in each case through the

acquisition, adoption or adaptation of that which the group has created,

something that Bordieu would call an ‘embodied culture’. D’Hondt argues that

culture is much more visible than other forms of social fragmentation but in the

context of twenty first century multiculturalism culture is hard to identify, and it is

therefore less comprehensible, perhaps less suitable for a policy legislative

framework or for inclusion in a legal system. Matravers states that it appears

that ’…the notion of culture is simply not robust enough to do the analytic and

ethical work which much of the cultural defence literature sets for it.’ Moreover

we are fearful of something that traditionally we have seen as belonging to ‘the

other’ and in addition, political correctness disables us from attributing to others

something that we do not fully understand. These are themes that will be

returned to in Chapter 4 when we explore multicultural policy in the United

Kingdom in the twenty-first century and search once again for evidence to

support and advance the hypothesis that the culture-responsibility relationship

has not been considered in policy and seek an explanation for that omission.

When it comes to beginning to answer the research question, as seen in section

3.2, we know that there is flexibility within the foundations of our criminal law to

accommodate the culture-responsibility relationship. We can take two

approaches here. We can look firstly to the patterns extracted from the evidence

gathered in sections 3.3. and 3.4 to establish the reality of current practice

which will give us an indication of the natural limits of the law at this moment,

‘the general accord between [the law] and public conscience’ that we identified

in section 3.2 as being necessary for the law’s inherent credibility. We can use

these patterns as a starting point and will carry them forward to Chapter 5.

Secondly, we can ask ‘how far should these boundaries be pushed?’ The word

‘should’ is deliberately chosen here because the outer limits of these boundaries

should not be imposed through the cultural lens of the dominant majority but

should be arrived at through meaningful dialogue as will be explained in detail in

Chapter 4. And so turning back to the research question how should the criminal

law of England and Wales respond to the culture-responsibility relationship?,

drawing on the findings of this Chapter and on the conclusions from section 2.4

we can suggest the following starting point:

• It is not possible to say with any certainty that culture can or cannot

determine behaviour but there is a general perception that culture can, in

the broadest of terms, ‘influence’ behaviour. We cannot therefore

currently see space for culture as a justification or excuse, either as a

standalone ‘cultural defence’ or within the traditional defences because

the law’s boundaries are not currently receptive to that idea. It is safest

therefore, for now, to place culture at the sentencing stage in personal

mitigation, where a pre-disposition or altered moral outlook may be

construed as a motive in influencing behaviour. Although the criminal law

does not recognize motive within the structure of actus reus and mens

rea it has at times been recognized as mitigation in sentencing. Culture

therefore seems to fit most naturally at the stage of personal mitigation in

sentencing.

• Sentencing laws need to reflect clearly the admissibility of culture as a

factor in personal mitigation in individual cases where it is established

that culture has had an influence on behaviour.

• There need to be clear procedural rules within the law of evidence on

how evidence of the effect of culture on behaviour should be introduced

and considered in the courtroom.

• The Judiciary (and prosecution and defence lawyers) need specific

training that goes beyond the stated aim in the ETBB of ‘increasing

awareness and understanding of the different circumstances of people

appearing in courts and tribunals’ on how to deal with cultural evidence in

court.

• Honour should be excluded as a factor that is relevant to personal

mitigation and it seems to be inherently indefensible.

• Courts should always consider the gendered implications of allowing

culture as a factor in personal mitigation.

Each of these points will be developed further in Chapter 5. The analysis in

Chapter 3 has thrown light upon a number of further issues that need

elucidation through dialogue if the culture-responsibility relationship is to

develop justly from the starting point suggested here and these too will be

returned to in Chapter 5. The suggestion here of situating the culture-

responsibility relationship at the sentencing stage fits with Norrie’s ‘looser

notion’ of responsibility at this stage and is supported by the evidence gathered

here from the criminal law and criminal justice system of England and Wales.

However, the above suggestion is not prescriptive and dialogue may in time

reveal a better place for the cultureresponsibility relationship. As we saw at the

beginning of the Chapter Cornell asserts that ‘ …the stories that we tell to justify

one state of legal affairs over another are just that, stories.’ It is sometimes

important and just for culture to find its place in such stories.

CHAPTER 4 MULTICULTURALISM IN THE UNITED KINGDOM

‘There is much to be grateful for and proud of in the legal traditions of the

United Kingdom. But it is important to ask whether the law is doing all it can to

help us live with our differences.’

4.1 Introduction

It is stated in Chapter 1 that the research question how should the criminal law

of England and Wales respond to the relationship between culture and legal

responsibility? needs to be addressed within two well-defined parameters. The

second of these parameters is multiculturalism, as it exists uniquely and

specifically within the socio-political system of the United Kingdom today. In

Chapter 3 the emergence of culture as a constituent part of (and indeed

constitutive of) the criminal law as a result of the social reality of multiculturalism

and its relationship to the criminal justice system was examined in the context of

the challenges that it brings to settled notions of individual legal responsibility.

Demian states that ‘…culture as a form of evidence seems to have appeared on

the legal horizon in the last twenty years because of the politicization of culture

as a descriptor of difference-as-authenticity.’ Although she goes on to argue that

culture is a ‘legal fiction’ and that multiculturalism is a ‘red herring’, because it is

not culture itself that is revelatory but the effect that culture has on ‘intentions’, it

remains that were it not for the social reality of multiculturalism, the effect of

culture on legal responsibility would not have emerged as a pressing and

contemporary issue for justice in the criminal law of England and Wales. In an

age of increasing awareness of the co-existence of different cultures we are

called to question whether the standards, purposes, limitations and allowances

of a criminal law fit for a mono cultural society are similarly fit for a multicultural

one and in section 3.2 we established that the foundations of our criminal law

are perhaps more able than we had previously thought to accommodate the

potentially altered cultural situation of individuals comprising a multicultural

criminal population within the criminal justice system of England and Wales. We

are therefore considering how best to accommodate the culture-responsibility

relationship, whose existence and importance we established in Chapter 2,

within the legal system, and recognising that the criminal law and criminal

justice system are situated within the wider domain of a multicultural reality .

However, as we found in Chapter 3, we see in the criminal law and the criminal

justice system itself a reluctance to engage with culture in general and an

inconsistent approach to the culture-responsibility relationship in particular and

so we need to examine whether recourse to multicultural policy and philosophy

can help in answering the question how should the criminal law of England and

Wales respond to the relationship between culture and legal responsibility?

The first broad aim of this Chapter is to generate a deeper understanding of the

term ‘multiculturalism’ within the specific socio-political context of the United

Kingdom and to establish that, as a society, we have not fully considered the

implications of contemporary multiculturalism for law and justice and perhaps

more pertinently multicultural policy has not considered the place of law, or at

least the criminal law. The second and narrower aim is to further the hypothesis

that the culture-responsibility relationship, sitting as it does within the social

reality of a multicultural society, remains a largely unexplored concern that, in

the interests of justice, needs to be addressed with some urgency. This follows

on from the conclusion reached in Chapter 3 that there has been an absence of

consistent and coherent engagement between the culture-responsibility

relationship and the criminal law and criminal justice system of England and

Wales at both a practical and policy level and that there is stark evidence that

the criminal law and the institutions of the criminal justice system continue to

provide evasive solutions to skim the surface of how the fundamental issues

involving culture should be addressed. The qualitative content analysis of the

United Kingdom’s policy on multiculturalism (as identified in Annex B) carried

out and summarized in this Chapter further develops the hypothesis. It may also

help us to understand why multiculturalism in the United Kingdom is largely

understood in terms of race relations rather than cultural difference. We

identified in Chapter 3 a seeming reluctance of the courts to engage with or to

recognise culture and this lack of recognition of culture may extend too to

multicultural policy. Race is much more comprehensible than culture and Panayi

identifies an ‘…iron girder of racism and xenophobia’ throughout the history of

immigration into the United Kingdom. This can be seen especially towards the

Irish in the nineteenth century, the Germans during the First World War, West

Indians during the 1950s, Asians from the 1960’s to 1980’s, asylum seekers in

the 1990s and currently Muslims where ‘…hostility towards outsiders, which

usually focuses on one particular group at one particular time, remains

constant’. Justice and hostility are arguably mutually exclusive concepts and so

we must be constantly aware of this ‘othering’ and suspicion in seeking just

solutions.

The first aim of this chapter seems simple enough- to explore and seek further

understanding of the term multiculturalism in the socio-political context of the

United Kingdom today. Yet things are much more complex. This is largely

because ‘multiculturalism’ is, like culture, multifaceted and dynamic and difficult

to define and as Rattansi says, an ‘…acceptable definition of multiculturalism is

notoriously elusive’.4 It is a word that has multiple interpretations. Firstly, it is a

descriptive label. As Howarth and Andreouli state, in its simplest form

multiculturalism is a ‘demographic condition’.5 This understanding of the term is

sometimes referred to as ‘soft multiculturalism’ and will be explored in section

4.2 where we consider multiculturalism as social reality.6 Secondly it is a policy.

To further complicate things there are two possible interpretations of

multiculturalism as policy. The first is where cultural minorities are thought of as

distinct communities and where public policy encourages this distinctiveness

and multiculturalism is promoted. This is sometimes referred to as ‘state

multiculturalism’, a policy standpoint that is often criticized for being grounded in

the group and leading to segregation. The second and broader interpretation is

where policy is adopted to regulate or to respond to the ‘demographic condition’

of multiculturalism, although that policy may not necessarily be promoting

4Ali Rattansi, Multiculturalism: A Very Short Introduction (Oxford, Oxford University Press 2011)

5Caroline Howarth and Eleni Andreouli, ‘Has Multiculturalism failed? The Importance of Lay

Knowledge and Everyday Practice’ (2012) Institute of Social Psychology Research Paper, The

London School of Economics and Political Science Publications

<https://www.researchgate.net/publication/265275514_%27Has_multiculturalism_failed%27_Th

e_importance_of_lay_knowledge_and_everyday_practice> a ccessed 1st October 2018.

6John Rex and Gurharpal Singh, ‘Multiculturalism and Political Integration in Modern Nation

States: Thematic Introduction’ (2003) 5 (1) International Journal on Multicultural Studies 3, 4.

multiculturalism or ‘state multiculturalism’ (as understood in the first

interpretation). This is what Parekh refers to as ‘a normative response to that

fact’, that is, the fact of diversity and policy that may be promoting an alternative

response to state multiculturalism, such as assimilation or integration. Modood

provides a useful definition of multiculturalism in this second context as ‘…the

recognition of group difference within the public sphere of laws, policies,

democratic discourses and the terms of a shared citizenship and national

identity’. These interpretations of ‘multicultural policy’ are used interchangeably

by politicians, policy makers and academics, but it is the second wider meaning

that is adopted in this chapter so that reference to ‘multicultural policy’ means all

or any policy seeking to regulate the social reality of a culturally diverse

populace. This is examined in section 4.3. Thirdly and finally, multiculturalism is

a philosophy. In the Stanford Encyclopedia of Philosophy Song defines

multiculturalism as ‘…a body of thought in political philosophy about the proper

way to respond to cultural and religious diversity’. This body of thought is huge

and will be explored in section 4.4 where political philosophy is called upon to

enhance understandings of what multicultural justice looks like in the context of

the culture-responsibility relationship. Section 4.4 engages with multicultural

philosophy, in particular with dialogical theory, in the search for an

understanding of justice grounded in multicultural thought within which

suggestions for the ongoing development of the culture-responsibility

relationship can be

theoretically explored.

Despite the challenges and complex interpretations of the term multiculturalism,

it is essential to embrace it. Whether we are considering multiculturalism as

social reality, policy or philosophy the culture-responsibility relationship is

relevant across each of these multiple understandings. Despite the evolution of

society in the United Kingdom into that of a multicultural one in the wake of

population movement throughout history but especially since the middle of the

twentieth century, the criminal law of England and Wales and multiculturalism

(whether as social reality, philosophy or policy) have largely remained as

bounded fields, their borders barely touching let alone interacting. Our

multicultural society has changed in and around the criminal justice system and

the criminal law so that the culture-responsibility relationship has been

overlooked in policy, perhaps not even recognized as a point of possible tension

in the first place, or even worse, consciously disregarded as just too difficult.

This Chapter will continue by exploring the social reality of multiculturalism in

section 4.2 and by examining multicultural policy in section 4.3. Throughout the

analysis of the criminal law and criminal justice system of England and Wales in

the context of the culture-responsibility relationship in Chapter 3 we began to

identify a sense of uncertainty about ‘culture’ and concluded that there was a

widespread reluctance to engage openly with it. This theme will be developed

throughout this Chapter where we identify another reluctance to engage, this

time between multicultural policy, the law generally and legal responsibility in

particular.

4.2 Multiculturalism as Social Reality

What then does multiculturalism look like in the United Kingdom today? To

understand the nature of our multicultural society, perhaps different from that in

postcolonial societies or in colonized states with an indigenous population, we

need to understand a little about the history of migration to and from the United

Kingdom. This will help us to form a picture of our unique multicultural makeup

so that the suggested framework for the way forward for the culture-

responsibility relationship within the criminal law can be responsive to and

specific to the locale. The law too needs to be understood in the context of

historical fact. As Cotterrell points out ‘…law only exists in specific times and

places…most of the important theoretical questions about law are not at all

timeless but very timely- they are issues about the way law is shaped, works

and develops in specific historical contexts’.

The History of Multiculturalism in the United Kingdom

Kymlicka and Banting correctly state that ‘…immigration is an enduring feature

of Western societies; there have always been powerful forces that push and pull

people across international borders.’11 Panayi tell us that between 1800 and

2010 9 million people had moved to the United Kingdom.12 Numbers of migrants

peaked in 2015 with an annual net migration figure of 332,000. So it is only in

relatively recent years that the United Kingdom has had to cope with such large

numbers of migrants. Migration Watch UK state that ‘…the massive increase in

the level of migration since the late 1990’s is utterly unprecedented in the

country’s history dwarfing the scale of anything that went before’. We need to

understand the approach of the United Kingdom to these population movements

in order to fully comprehend our multicultural society. We need to be able to

offer

a critique of accounts of and successive government responses to

multiculturalism that do not appear to grasp the complete picture. For example

Parekh asks us to rethink the national story but is criticized by Panayi for

beginning it only in 1945 and seeing it only from an Asian perspective. This

knowledge, which reinforces an interdisciplinary methodology, is also essential

to give us the context within which to further a meaningful socio-legal analysis of

the culture-responsibility relationship. It also further serves to reinforce the

closeness between this wider realm of multiculturalism as social reality, as

philosophy and as policy and the specific and narrow research question that this

thesis seeks to address.

The United Kingdom is considered, at face value, to have a long tradition of

toleration. The Toleration Act of 1689, passed only some 150 years after the

1534 Act of Supremacy, was the final Act of Parliament of the Reformation. It

gave freedom of worship to non-conformist Protestants, with Locke famously

commenting ‘I esteem that toleration be the chief characteristic mark of the true

church’. Yet, some have questioned whether the 1689 Act really was a sign of

toleration or a political move to unite conformist and non-conformist Protestants

together against Catholics. There are other historical examples of surface

toleration and accommodation hiding a more sinister political agenda. The Jew

Bill of 1753 (later the Jewish Naturalisation Act) gave Jews the right to

naturalisation upon application to Parliament, yet underlying this apparently

liberal and accommodating concession was the recognition of the economic

value of a small population of wealthy Jewish merchants in whose favour the

Act was addressed. In any event the law was repealed in 1754 due to

widespread opposition to its provisions. Rabin argues, supporting the theme

that ‘suspect communities’ have been socially constructed throughout history,

that the existence of ‘threatening’ outside groups in the eighteenth century was

necessary in order to strengthen Anglican identity. ‘The debate over the Jewish

Bill suggests that the formation of a British identity in this period was dependent

to some degree on the maintenance of a complex of negative stereotypes of

religious error that embodied Jews, Muslims, Catholics…’ In this way the 1753

Act and its repeal hid a deeper problem still relevant today and that is the

floundering by the successive governments in matters of addressing other

cultures or minorities and in attempting to define ideas of ‘Britishness’. Yet these

Acts of Parliament were an important part in the spread of liberal ideas following

the Enlightenment and the democratic structures of Britain as a liberal

democracy established during these years continue to play a central role in the

process of migration. These formative years arguably saw the beginnings of

British multiculturalism as a policy with the rights of Jews being recognized

tentatively from the end of eighteenth century following the Enlightenment and

they undoubtedly paved the way for

Jews to campaign for full civil rights, the Jewish Association for the Removal of

Civil and Religious Disabilities being formed with this as an agenda. The story is

similar with Catholic Emancipation where a campaign for equal rights for

Catholics led by pressure groups resulted in the 1829 Catholic Relief Act and

that movement again set the scene for subsequent groups to seek equal rights.

Panayi says that the Catholic Relief Act 1829 is the most significant legislation

passed in favour of a minority group in the last 200 years on the basis that it

recognised the concept of ‘equal rights’. Yet, nowhere in this early discourse on

equal rights is there a corresponding exploration of equal responsibility.

At the end of the eighteenth century there were no restrictions on aliens entering

the country but in 1793 the Alien Act was passed obliging aliens to register

when coming into the country and giving the Home Secretary the power to

deport ‘suspicious aliens’. Perhaps this is an early example of the government

using immigration as a tool to regulate ‘outsiders’ and any practices seen as

undesirable. Such a practice has been seen in recent years in the amendment

of Rule 277 of the Immigration Rules in 2008 which raised the age for marriage

visas from 18 to 21 with the motivation of deterring forced marriage prior to the

criminalisation of forced marriage in 2014.

Mass migration to the United Kingdom began in 1841 with the influx of Irish

fleeing the famines of the 1840s. This was in fact ‘internal migration’ as Ireland

was at that time part of the United Kingdom. However, until the beginning of the

twentieth century the United Kingdom took a laissez-faire approach to entry on

immigration, its borders largely unregulated and open to all. This ended with the

passing of the Alien’s Act 1905 in response to the ‘Jewish Question’, which

arose from a perception of ‘Jewish criminality’ and degenerating housing within

the community of Jewish Eastern European immigrants who had begun to settle

in the East End of London from the 1880’s onwards. The immigrants were

perceived to be engaging in the large scale trafficking of girls for prostitution.

The Act imposed restrictions on the entry of ‘undesirable’ immigrants and

allowed for the expulsion of those already here and again defined as

‘undesirable’. Knepper identifies this as an early episode of racial

criminalisation in the criminal justice system.

Historians consider that the 1905 Act was largely unworkable as it required a

whole scale bureaucratic infrastructure to enforce it that simply did not exist.

Pellow presents a table of immigrant traffic and inspection from 1906 to 1913

that shows that 7594 aliens were refused entry and an additional 2866

expulsion orders were made during these years. This is out of a total of some

3.5 million who arrived on ‘immigrant ships’ during the same time period. The

approach of government agencies to this Act demonstrates that policy was not

about the settlement of immigrants following arrival in the United Kingdom but

about controlling immigration because ‘…politically it has nearly always been an

emotive issue, where liberal ideas of welcoming strangers have conflicted with a

variety of fears about letting them in unrestricted’. Yet, despite the overtones of

the Act, Sacks sees the treatment of the newly arrived ‘suspect community’ as

an example of successful integration effected by the long established and

socially accepted British Jewish community who took the initiative in forming

charitable committees to help the new immigrants to settle and to see the ‘error’

of their ways when contravening the norms of established British society. Where

was the United Kingdom government in the settlement of these new

immigrants? It was the existing immigrant communities and the voluntary sector

that was taking on the burden of settlement and nowhere was there any official

statement of expectation of them on arrival. Again, we see evidence of recurring

themes in policy in this early social reality of multiculturalism.

Despite mass population movement as a result of the upheaval of two world

wars the next fifty years were broadly characterized by a non-interventionist

strategy regarding immigration. One exception to this was the blatantly

xenophobic legislation aimed at German people during and following the First

World War. The Aliens Restriction Act 1914 perhaps gives us the first evidence

of the interaction between the criminal law and the responsibilities of aliens in

relation to it. The power of the Home Secretary to expel aliens in the event of a

criminal conviction in a foreign country was extended to allow expulsion for

crimes committed after arrival in the United Kingdom. This included all crimes

punishable by imprisonment including summary offences.31

Following the Second World War the government intervened in immigration

matters again with the passing of the Polish Resettlement Act 1947 (under

which 200,000 Polish immigrants arrived in five waves to supply labour in the

post war years) and the British Nationality Act 1948 (under which immigrants

from former colonies came to the United Kingdom in the 1950’s and 1960’s,

although Crowder argues that the 1948 Act was put in place to allow white

people from the Dominions to travel to and from the United Kingdom freely).

The latter created a ‘Citizen of the United Kingdom and Colonies’ for those born

or naturalised in the United Kingdom or Colonies and allowed citizens of the

Colonies the unrestricted right to reside in the United Kingdom.

As an aside here, the legislation relied on the complex notion of citizenship. The

idea of citizenship (and this is almost exclusively construed as ‘British

citizenship’ rather than citizenship of the United Kingdom or England and/or

Wales) is complex due to its historical evolution from the idea of the subject

(post 1066) who owed allegiance to the sovereign. The concept of citizenship

was recognized by Blackstone on the basis of the principle of jus soli, a natural

born subject being born within the dominion of the crown. In his Citizenship

Review of 2007 Goldsmith gives the example of the 1948 British Nationality Act,

which creates the idea of Commonwealth Citizenship based on the British

Nationality Status of

Aliens Act 1914 which states that ‘…any person born within His Majesty’s

Dominions and Allegiances was a natural born British subject’. The Act also

relies on the principle of jus soli, extended to included British subjects

throughout the Empire.

Returning to the 1948 British Nationality Act, underlying the apparent legislative

welcome the political message was less warm. A Privy Council memo to the

Foreign Office in respect of the 492 skilled workers from Jamaica arriving on SS

Empire Windrush in June 1948 (their arrival being seen as a symbol of the

success of the 1948 Act in drawing ‘…immigrants of good stock’ to help rebuild

a country devastated by war) recommended that ‘…no special effort be made to

help these people …otherwise it might encourage a further influx’. There was

definitely a political assumption of an assimilationist approach to the ‘dark

stranger’ although as Winder goes on to point out, the government did not

provide any political leadership for these immigrants, perhaps a missed

opportunity in terms of providing a structured way forward and of considering

notions of rights and responsibilities. A report at the time included the following

‘…a large coloured community as a noticeable feature of our social life would

weaken …the concept of Englishness or Britishness to which people of British

stock throughout the Commonwealth are attached.’

When the numbers of Colonial immigrants began to increase significantly by the

beginning of the 1960’s this political message was reinforced and controls were

successively introduced in the Commonwealth Immigration Acts of 1962 (under

which, for example, proof that the immigrant had a job had to be shown) and

1968

(which introduced the requirement for the immigrant to have a ‘substantial

connection with the United Kingdom’). By 1972 the distinction between

Commonwealth and non-Commonwealth immigrants had been abolished and

the scene was set for an attitude of suspicion and hostility towards all

immigrants. This control in immigration was accompanied by a strong race

relations agenda, with race relations being a central policy issue from the 1960’s

until the 1980’s. This remained the case following what were termed the ‘black

race riots’ of the 1980’s, with more anti- discrimination legislation being

introduced following the Scarman Report and with an integration policy aimed at

immigrants and families who had been in the United Kingdom for some time, not

at the new flow of immigrants.38

In addition to this Colonial immigration following World War Two there have

been large numbers of refugees who began to arrive in waves immediately after

1945 when 91,151 displaced persons settled in the United Kingdom and, once

again, provided labour.39 The impact of European Union law on the free

movement of persons is also hugely significant with the Migration Observatory

at the University of Oxford noting a huge increase in net migration to the United

Kingdom following the accession of the A8 countries to the European Union in

May 2004.40 Their total net migration figures for the period 2004-2012 are

estimated at 423,000,

38 For example Police and Criminal Evidence Act 1984 with its focus on fair policing and the

establishment of the Police Complaints Authority in 1985.

The Scarman Report was commissioned by the UK Government following the Brixton Riots in

1981. Its terms of reference were to ‘inquire urgently into the serious disorder in Brixton on 1012

April 1981 and to report with the power to make recommendations’. It concluded that urgent

action was needed to prevent racial disadvantage ‘…becoming an endemic, ineradicable

disease threatening the very survival of our society’. It recommended recruiting more ethnic

minorities to the police force and more community engagement between the police and racial

minorities.

Integration: Mapping the Field

Report of a Project carried out by the University of Oxford Centre for Migration and Policy

Research and Refugee Studies Centre contracted by the Home Office

Immigration Research and Statistics Service (IRSS). Stephen Castles, Maja Korac, Ellie Vasta,

Steven Vertovec, ‘Integration: Mapping the Field’ (December 2002)

<http://forcedmigrationguide.pbworks.com/w/page/7447907/Integration%3A%20Mapping%20th

e%20Field > accessed 1st October2018

39 Panayi (n 3) 44. Figure of 91151 taken from p41.For example 30,000 from Iranian revolution

of 1979, 15,000 from Vietnam as a result of Vietnamese War, 3000 from dictatorship of general

Pinochet in Chile and 15,000 Kurds estimated numbers since 1800. (Irish 2.2million). 40

European Parliament and Council Directive 2004/38/EC of 29 April 2004 on the right of citizens

of the Union and their family members to move and reside freely within the territory of the

Member States amending Regulation (EEC) No 1612/68 and repealing Directives 64/221/EEC,

68/360/EEC, 72/194/EEC, 73/148/EEC, 75/34/EEC, 75/35/EEC, 90/364/EEC, 90/365/EEC and

93/96/EEC.

The A8 countries are Czech Republic, Estonia, Hungary, Latvia, Lithuania, Poland, Slovakia and

Slovenia.

although this figure is challenged by the Office for National Statistics as being

underestimated by 346,000.

Multiculturalism as Social Reality Today

As for the social reality of multiculturalism today, Howarth and Andreouli call for

the adoption of a social psychological approach to assess the successes or

failures of multiculturalism ‘on the ground…otherwise academic and political

discussions are in danger of being disconnected from real life experiences and

actual intergroup relations’ and multiculturalism is either seen in political terms

as a failed project or in academic discussion where the focus is on institutional

frameworks that advance cultural equality (as, for example in Kymlicka and

Banting’s work). In this way they are able to examine ‘…the lived realities of

cultural diversity and the tensions that are associated with it’.43 They envisage

research where intergroup interactions in everyday life are empirically studied

alongside macro-level theorisation of multicultural justice and citizenship.

Using Berry’s acculturation framework and data from the UK Household

Longitudinal Study and as part of the ESRC funded Understanding Society

Project Nandi and Platt seek to analyse the degree of acculturation among

minorities (and the majority) in their 2013 paper. 44 Their conclusions are based

on data from 28,000 randomly selected households and 4,000 households

selected to provide an ‘ethnic minority boost sample’. They conclude that across

all groups the most common acculturation outcome is integration with British

identity being stronger in cases where there are second generation immigrants.

(Marginalisation is strongest among the Caribbean group, who feel most

isolated from the dominant society and, as time has passed since their

migration, make less investment in creating alternative identities). It is

interesting to note a link between actual acculturation outcomes (as measured

by Nandi and Platt) and the desired outcomes (now integration) of multicultural

policy.

In 2000 and 2010 the Multicultural Policy Index maintained by Kymlicka and

Banting at Queen’s University Canada, with the aim of monitoring the evolution

of multicultural policies in 21 western democracies by measuring the presence

or absence of multicultural policies in those countries, categorised the United

Kingdom’s multiculturalism as ‘moderate’ with a score of 5.5 (it had been 2.5 in

1980) pointing out that multiculturalism is typically recognized as a demographic

fact but policy discourse relies more on the terms cohesion and integration than

44 Berry’s acculturation framework is discussed in detail in section 2.4 and broadly identifies four

possible acculturation outcomes.

The UK Household Longitudinal Study (UKHLS) is a major research study designed to provide

new evidence about people in the UK, focusing on their lives, experiences, behaviours and

beliefs and how people in the same household relate to each other. The Study was

commissioned by the Economic and Social Research Council and is led by the Institute for

Social and Economic Research (ISER). The National Centre for Social Research conducts the

fieldwork for the survey. The study started in 2009 and follows 100,000 individuals in 40,000

households each year.

Alita Nandi and Lucinda Platt, ‘Britishness and Identity Assimilation Among the UKs Minority

and Majority Ethnic Groups’ (2013) Working Paper Series no 2013-08

<https://www.iser.essex.ac.uk/research/publications/working - papers/iser/2014 - 01.pdf > accessed

1st October 2018.

on multiculturalism.45 The index has taken measurements in 1980, 2000 and

2010 and their ‘Index for Immigrant Minorities’ is intended to track the extent of

this multicultural shift over the past three decades, by examining the adoption of

eight multicultural policies.46 There is no definition of a ‘multicultural policy’ and

so the measurement is controversial and, by the author’s admission ‘perhaps

arbitrary at the edges’.47 Rattansi is critical of Kymlicka and Banting’s work on

the basis that their list of policies is contentious and that the list gives only a

brief indication of the responses of nation states to ethnic minorities.48 It is

indeed a crude measurement but it is useful in giving some indication of just

how

multicultural our society is.

In 2004 Joppke identified a seismic shift from a language of multiculturalism to

one of civic integration. 49 David Cameron identified the failure of state

multiculturalism in a speech at a security conference in Munich on 5th February

2011 criticising ‘state multiculturalism’ as encouraging some to live separate

lives and linking it to radicalisation and the causes of terrorism. 50 He called for a

45 The MPI is a ‘…scholarly research project that monitors the evolution of multicultural policies

in 21 Western democracies… the project provides an index at three points in time, 1980, 2000

and 2010 for three types of minorities.

<www.queens.ca/mcp> accessed

1st October 2018.

46 ibid. These are:

• constitutional, legislative or parliamentary affirmation of multiculturalism;

• the adoption of multiculturalism in school curriculum;

• the inclusion of ethnic representation/sensitivity in the mandate of public media or media

licensing;

• exemptions from dress-codes, Sunday-closing legislation etc;

• allowing dual citizenship;

• the funding of ethnic group organizations to support cultural activities; • the

funding of bilingual education or mother-tongue instruction;

• affirmative action for disadvantaged immigrant groups. 47 Will Kymlicka and Keith

Banting, ‘Is there Really A Retreat From Multiculturalism Policies? New Evidence From

the MCP Index’ (2013) 11 (5) Comparative European Politics 577. 48 Rattansi (n 4) 17.

49 Christian Jopkke, ‘The Retreat of Multiculturalism in the Liberal State: Theory and Policy’

(2004) 55 (2) British Journal of Sociology 237.

50 BBC News, ‘State Multiculturalism has Failed, Says David Cameron’ (5th February 2011)

<http://www.bbc.co.uk/news/uk - politics - 12371994 > accessed 10th October 2018.

stronger national identity, a ‘shared national identity’, stating ‘…we need a lot

less of the passive tolerance of recent years and much more active liberalism’.

He warned Muslim groups that if they failed to endorse women’s rights or to

promote integration they would lose their funding.

Certainly it cannot be argued that multiculturalism as social reality does not

exist. But the reality is it that it is more than ever tied up in the public mind with

radicalisation and terrorism within Muslim populations and the popular media in

particular depicts it as a threatening reality. ‘Multiculturalism has of late

generated alarmist critiques in connection with its perceived support for a new

tribalism and an associated threat to equality and democracy or at least to

national and social cohesion’ 52 There is a sense of moral panic, Muslims being

the ‘suspect community’ of our times and what Modood has identified as

Islamaphobia. In the past, when faced with such anxieties, Western states have

often adopted exclusionary and/or assimilationist policies towards immigrants.

States denied entry or naturalization to those immigrants who were perceived

as unable or unwilling to assimilate, and anyone seeking citizenship was

expected and sometimes even required to renounce or hide their earlier ethnic

identities. Yet since the 1960s, a different approach has emerged in some

Western countries, in which assimilation is renounced as a goal, and integration

is seen as compatible with maintaining and publicly expressing an ethnic

identity. People can participate in society through membership in immigrant

ethnic communities, which are seen as legitimate social and political actors that

are worthy of support and consultation. As Fischl and Johnson point out, being

Muslim was not an issue until after 9/11. There were no questions on religion on

the census form until 2001. The Muslim Council of Britain was not formed until

1997. But by the summer of 2005 task force groups had been created with the

aim of looking at the place of Muslims in society and in the same breath at what

could be done to combat violent extremism. 54 ‘CONTEST’, the government’s

anti-terrorism strategy was the result.

If the social reality of multiculturalism can lead to the perceived victimisation of

certain groups then the white working class can sometimes be perceived as

victims of our multicultural society. Putnam’s theory of social capital, ‘…the

connections among individuals- social networks and the norms of reciprocity

and trustworthiness that arise from them’ involves bonding (cohesion amongst

defined communities) and bridging (overlapping networks between different

communities bringing together people who are unalike). It recognizes that

bonding capital can have a dark side as it excludes ‘others’ but the concept of

‘shared values’ becomes important in context of bridging capital, which suffers

where there is too much cultural difference, with ethnic diversity contributing to a

decline in trust.55

54 For example The Working Group on Tackling Extremism and Radicalisation. Home Office,

‘Counter-terrorism strategy (CONTEST)’ (26 Mar 2013)

<https://www.gov.uk/government/collections/contest > accessed 16th March 2018. 55 Robert

Putnam, Bowling Alone: The Collapse and Revival of American Community (New York,

Simon and Schuster 2000).

Cavanagh claims that Robert Putnam had considerable influence over the policy makers in

Communities and Local Government from 2007 onwards and as a result social cohesion and

integration became confused.

Jill Rutter, ‘Back to Basics: Towards A Successful and Cost-Effective Integration Policy’

(Institute for Public Policy Research, Mar 2013)

Rattansi says Putnam’s theory has severe conceptual, methodological and

empirical limitations and that the transfer of his thesis to the United Kingdom is

especially problematic because Putnam ignores ‘cultural capital’ which allows

upper classes to build exclusive networks and advantages.56 Putnam’s

emphasis is on the quantity not quality of relationships. He takes a broad

historical sweep ignoring locales. He also ignores important social changes, for

example he assesses political participation through formal political organisations

rather than through alternative politics. Peter Hall looks at a different picture in

Britain. 57 He finds little intergenerational difference in rates of participation and

hence little evidence of a decline in social capital. Hall’s analysis reveals a large

gap in trust between middle and working classes in Britain whereas Putnam’s

work is based on an overall decline in civic trust. He has little to say about large

differences in civic trust exhibited by privileged and marginalized groups. In

December 2009 John Denham MP berated the middle classes for not

understanding the impact of immigration on poorer workers. The middle class

could benefit from ‘cultural enrichment’ but the working class experience

pressure on jobs and housing. In 2004 Goodhart took Denham’s recognition of

the resentment of the white working class further and drew the conclusion that

immigration and growing diversity were undermining the kind of common

culture, trust and solidarity that had earlier allowed a culture of sharing to

develop, his basic assumption being that citizens are likely to be supportive of

welfare benefits only to those who seem similar to themselves in values and

lifestyle. 58 The more different the culture of their

<https://www.ippr.org/files/images/media/files/publication/2013/03/back - to -

basics integration_Mar2013_10525.pdf?noredirect=1 > accessed 1st October

2018, 38. 56 Rattansi (n 4) 100.

57 Peter A Hall, ‘Social Capital in Britain’ (1999) 28 British Journal of Political Science 417. 58

David Goodhart, ‘Too Diverse?’ (2004) 95 (30) Prospect Magazine 7.

neighbours and the less the sense of shared history, struggles and a collective

contribution to the welfare state, the less strong the feelings of empathy,

sympathy and solidarity that the white indigenous population feel. A 2006 study

of London’s changing East End highlights this. It paints a picture of acute

hostility where the white working class population is seething with anger at the

new culture and practice of entitlement according to need rather than

contribution to local and national wealth. But the study has been criticized for a

lack of contextual information, for homogenizing the white working class (which

consisted of Irish, Polish, Greek, etc.) and treating the poorest as synonymous

with the whole. Minorities are unified in other misleading ways- the local

dynamics cannot be encapsulated in an account that simply pits whites against

Bangladeshis. Multiculturalism is the social reality of the United Kingdom in the

twenty first century. However, the social reality of multiculturalism is uneasy.

Successive governments have failed to put in place strong policy guidance

reacting instead to perceptions of threats. Ashcroft and Benn say that the

current approach to multiculturalism is one of ‘rebalancing’.

Certainly in terms of the criminal law generally and the culture-responsibility

relationship in particular this re-balancing is a welcome development.

Throughout this exploration of multiculturalism as social reality we can see a

number of themes. They can be broken down into eight themes and listed as

follows:

• Multicultural policy is, and has historically been, elusive and there is a

lack of consistency and of clarity in both purpose and terminology and in

particular a lack of engagement with the criminal law.

• There is and has been an emphasis on immigration control rather than

post immigration settlement. The British Nationality Act 1948 missed the

opportunity to consider the rights and responsibilities of immigrants and

this omission has been successively followed throughout the history of

immigration policy.

• Favell states that the historic approach to multiculturalism in the United

Kingdom has been one of race relations through social cohesion.

• Where it is possible to find policy on post immigrant/migration settlement

this has largely been directed at regulating ‘undesirable practices’

following immigration.

• Throughout history beginning with responses to Jewish Immigrants in the

1800’s it is possible to identify the emergence of ‘suspect communities’

made up of certain groups of immigrants. Legal responses to such

groups may have the potential to result in unjust laws.

• There is an emphasis in policy (and in academic literature) on rights

rather than responsibility. This absence of reference to responsibility

includes of course criminal responsibility and therefore it is not surprising

that if criminal responsibility generally is not in the multicultural discourse

then the culture-responsibility relationship must too be forgotten or

excluded.

• The matter of post immigration settlement is largely delegated to local

communities with central government distancing itself from involvement.

• Policy and academic literature focus on the immigrant and immigrant

communities. This does not encompass the whole picture of our

contemporary multicultural society consisting now of migrants and

refugees too. As Ashcroft states multiculturalism in the United Kingdom

‘…seems primarily to be viewed in terms of the non-white immigration

sparked by decolonization.’

Bearing these overarching themes in mind it is easy to see how the

cultureresponsibility relationship has indeed been overlooked in multicultural

policy.

Ashcroft recognizes that ‘…a recurring feature of the different debates over

multiculturalism is…a challenge by a minority to implicit or explicit norms or

practices of a majority.’63 The culture-responsibility relationship encapsulates

such challenges which arise from minority claims that the neutrality of the state

is illusory, something that we are familiar with through perceptions of the

endemic cultural bias in the criminal justice system explored in section 2.4.

Ashcroft recognizes too that the ‘…domestic legal issues raised by

multiculturalism in the UK are legion and there is really no aspect of domestic

law that has been untouched’ but we are yet to see evidence of the criminal law

responding to such issues, at least in the realm of responsibility.

4.3 Multiculturalism as Policy

The focus of this section is a review and analysis of historic and contemporary

multicultural policy in the United Kingdom. The historical approach is required

because demographic multiculturalism within the unique socio-political context

of the United Kingdom has been identified in the introduction to this thesis as

one of the two parameters within which the culture-responsibility relationship

should be analysed and situated. It is therefore necessary to examine the

evolution of the contemporary multicultural population and the historical policy

response to that evolution to enable us to understand why we are where we are

today and to distinguish this jurisdiction from others where there has perhaps

been a different trajectory in the formation of the multicultural makeup.

Contemporary multicultural policy needs to be examined because the aim of the

thesis is to undertake a socio-legal and interdisciplinary analysis of the culture-

responsibility relationship and an understanding of relevant policy will provide

the social and political context underlying the way forward for this relationship in

the criminal law of England and Wales. Again, Cotterrell is helpful here in

arguing the case for a socio-legal approach that makes ‘…the study of law a

great conversation that draws on the whole range of types of knowledge

necessary to make that conversation an informed one’.

The assertion in the introduction to this thesis that the United Kingdom has not

adopted a ‘policy of multiculturalism’ is perhaps a misleading and oversimplified

statement that needs re-examining. It implies that ‘a policy of multiculturalism’ is

a one dimensional and straightforward thing, a question of agreement at the

highest level that we embrace and commit to what is, de facto, a ‘multicultural’

world. It further implies that the United Kingdom government and its

predecessors have failed to give any consideration to the issues raised by

multiculturalism.

Although this thesis is critical of successive governments and other agencies

(particularly those within the criminal justice system) for their failure to engage in

a meaningful way with, as appropriate, multiculturalism or culture and in turn

with the culture-responsibility relationship, the latter a problem that has arisen

from the demographic condition of multiculturalism, it is not fair to suggest that

there have been no attempts to consider certain aspects of multiculturalism. In

fact as the section on the history of multiculturalism above shows successive

United Kingdom governments have been managing population movement, and

the

consequent multicultural circumstances, for centuries. It is certainly possible to

identify trends in multicultural policy (perhaps subtly different from the trends

identified in reality in section 4.2) notably race relations, Parekh’s Britishness

defined as a ‘…plural identity that celebrates difference as a community of

communities’, social cohesion and more recently the affirming of shared values

and integration. However, as Howarth and Andreouli point out, we now need to

recognize the current intensity of multiculturalism due to globalization.67

In this light, the existing approach to dispensing with the issues that compete in

the sphere where cultural diversity and the criminal law of England and Wales

meet, which involves a semblance of accommodation and equality, can be seen

as an inadequate response to contemporary social reality and this failure to

engage on a deep level with what cultural diversity means for the future of the

criminal law of England and Wales at both a theoretical and a practical level and

to consider suggestions for the way forward is a missed opportunity in the quest

for justice and for a law that should be evolving to be fit for purpose in a

multicultural era.

It is necessary to define what is meant by ‘policy’. This is limited to that found in

the documents that have been identified and listed in Annex B to this thesis

(part 1 lists relevant government documents and, part 2 EU sources and part 3

those from other relevant organisations and sources) and to that necessarily

inferred from historical analysis where policy is not made explicit. In fact it is

difficult to find definitive statements of multicultural policy in relation to any

period and most of what we know, certainly until the 1960’s, seems to come

from retrospective academic analysis and commentary. A Hansard search for

the terms

‘multicultural’ and ‘multiculturalism’ between 1st January 1800 and 31st October

2018 reveals 226 references with the first not appearing until 1985 and with a

peak in 2007/8. Most of these references are in relation to immigration,

terrorism and, latterly, Brexit.

A deductive approach is applied to the analysis of ‘policy’ with a view to

establishing that law (and especially the concept of responsibility) and policy

have largely failed to interact. It is difficult to categorise the research method

chosen to analyse these policy documents. It could be argued that the analysis

is nothing more than an extended Literature Review but, as explained in section

1.4 it is more ‘thematic’ in searching for references to engagement between law

(particularly the criminal law and responsibility) and policy. The approach taken

could fall within a strict definition of Content Analysis, ‘…a research technique

for the objective, systematic and quantitative description of the manifest content

of communication’. Content Analysis is considered a quantitative method of

social research with an emphasis on measurement and the transparency of

rules used in the analysis. The key qualities of Content Analysis are being

objective and systematic, the technique involved here including those

characteristics. However, the method chosen does not look at manifest content,

such as would be the case with the mass media texts typically analysed using

this method, but with latent content as an underlying theme is sought and

identified. Perhaps the approach better fits what Bryman refers to as ‘qualitative

content analysis’.

The method is therefore described as qualitative and it can be subject to a

deductive or an inductive approach, although Finfgeld-Connett warns of a threat

to validity with a deductive approach (taken here as stated above) because of

the possibility of verifying the obvious and overlooking that which runs counter

to the hypothesis. Writers on the method envisage a sample of the relevant

documents being examined but here no sample was selected because as

complete a body of documents as it has been possible to find has been

analysed.

However, as will be seen, there is little to be found within policy documents, both

historic and contemporary, to assist in answering the research question how

should the criminal law of England and Wales respond to the relationship

between culture and legal responsibility? This finding advances the hypothesis

that the criminal law of England and Wales has failed to engage meaningfully

with the social reality of our multicultural world and that the pathway through the

competing demands of multicultural accommodation and the preservation of the

existing social order under the Rule of Law is not clearly marked. The current

focus of multicultural policy in the United Kingdom (immigration and the

prevention of violent extremism) targets Muslim groups and seems to exclude

all other Conditions for Integration where the purpose of integration is stated to

be ‘long term action to counter extremism’. Yet multicultural policy should be

about far more than this and it should certainly be providing guidance for those

involved at all levels of the criminal justice system. Policy on immigration and

terrorism is still much clearer than policy on multiculturalism and post-

immigration settlement with the aim of the UK Border Agency being, inter alia, to

strengthen the country’s borders.

The introduction to this chapter sets out the alternative understandings of the

term ‘multiculturalism’. According to the understanding adopted here,

multicultural policy may adopt a number of different responses to a multicultural

population. The terms traditionally associated with multicultural policy include

acculturation, assimilation, segregation (or separation), marginalisation and

integration but more recently new terms such as ‘interculturalism’ and

‘omniculturalism’ have emerged in academic and policy dialogue. Here we will

look at understandings of assimilation and integration. The terms immigrant and

migrant are used interchangeably because the sources drawn on reflect the

focus of their times, immigration or migration, but understandings of these

concepts apply equally to both immigrant and migrant. Before looking at specific

policies over time we can understand the most common policy responses under

the umbrella of multiculturalism.

We examined Berry’s acculturation framework in Chapter 2 in establishing the

relationship between culture and responsibility but focused there on

acculturation as a process of acquiring a second culture, a psychological

change within the individual. Although it is hard to see acculturation as a policy

response to the social reality of multiculturalism the outcomes of acculturation

identified by Berry, integration, assimilation, separation and marginalisation,

may be seen as policy responses. As will be seen below, assimilation (involving

the loss of the minority culture and the adoption of the majority culture) was an

implied multicultural policy in the United Kingdom in the twentieth century

(implied because it appears that there is no evidence of it being explicitly

stated). Assimilation is the desired outcome of a society where members are

culturally indistinguishable. As a policy assimilation can be criticized for being

based on the idea of a homogenous society prior to immigration; it also

assumes the interconnectedness of different dimensions of assimilation

(although the idea of ‘segmented assimilation’, usually applied to second

generation immigrants may overcome this). If a strong assimilationist stance is

adopted, there can be no allowance within the criminal law for the culture-legal

responsibility relationship. However, we saw evidence in section 3.2, from case

law in England and Wales, of leniency during sentencing on the basis that

immigrants are becoming assimilated and this evidence comes from a period

when policy was based on implied assimilation. Some academic writers too

argue for allowances to be made dependent upon the degree of assimilation

that the defendant has experienced. For example, Ma advocates the right for

defendants to rely on a ‘cultural defence’ for a limited time following immigration

as individuals become used to local laws.76 She suggests a period of five years

but Van Broeck is rightly critical of this hard and fast rule that bears no relation

to the actual degree of assimilation of the individual concerned and hence no fit

assessment of responsibility and appears to be an arbitrary time period. Before

looking at multicultural policy in specific periods of history it is helpful to consider

the meaning of ‘integration’.

Integration

Whilst integration may be at the heart of today’s multicultural policy (as

discussed below), until recently there seems to be unwillingness in policy

documents to define it. The Casey Review reversed this tendency with a

definition in 2016 of integration as ‘…the extent to which people from all

backgrounds can get on with each other in enjoying and respecting the benefits

the United Kingdom has to offer.’ But this, like multiculturalism, is still construed

as having two distinct meanings with academics seeing it as a process that

migrants are involved in following their arrival in the United Kingdom and policy

makers seeing it as an end goal and Cavanagh’s definition, ’…integration may

be seen as a person or group of people possessing the opportunities and skills

needed to ensure social inclusion and long term well-being. It is both a process

and an outcome’, is therefore more encompassing. It is seen as relating to

equality and ‘…the elimination of unacceptable degrees of inequality and

segregation’. Of course the question for this thesis is how the criminal law will

need to develop to play its part in a successful integration policy. A Migration

Policy Institute paper of 2012 refers to integration as a ‘dazzling’ and

‘treacherous’ concept but it is understood as a two-way process based on

mutual rights and corresponding obligations of immigrants and the host society

that provides for full participation of the immigrant. ‘This implies on the one hand

that it is the responsibility of the host society to ensure that the formal rights of

immigrants are in place in such a way that the individual has the possibility of

participating in economic, social, cultural and civic life and on the other, that

immigrants respect the fundamental norms and values of the host society and

participate actively in the integration process, without having to relinquish their

own identity’. 81 For some, there are still overtones of assimilation ‘…in particular

a concern that the key focus of interest is whether migrants will become

culturally similar to the rest of the population and the normative judgment that

they ought to do so’.

A detailed paper from IRSS Home Office Mapping the Field reports on a survey

of British research on immigration and refugees undertaken between 1996 and

2001. The aim of the report is stated as being ‘…to better inform government

policy development’. A conceptual survey of the integration of immigrants and

refugees found that whilst these groups were treated differently, there is no

consensus on what integration means or on how it can be measured. However,

it states that integration must be recognized as a two way process ‘…of

adaption,

involving change in values, norms and behaviour for both newcomers and

members of existing society’ because if it is merely one way then there are

connotations of assimilation. This seems to recognize the need for existing

norms (and arguably laws?) to change too. Although the report recognizes that

integration is complex and therefore cannot be studied from the perspective of a

single discipline it does not list law among the 9 disciplines identified as

covering integration. This reinforces the view that law and hence responsibility

and multiculturalism are disconnected. Again, there is a focus on rights ‘…above

all integration in a democracy presupposes the acquisition of legal and political

rights by the new members of society so that they can become equal partners’.

Interestingly there is reference to agency in the statement ‘…developing the

human agency needed to function effectively in a new environment requires the

individual and collective initiative of the newcomer’ so perhaps in recognising

agency we can see an oblique recognition of individual responsibility?

Taking this point on integration and responsibility further, in his model of refugee

integration Kuhlman includes legal integration. Yet whilst the IRSS report lists

possible ‘indicators of legal integration’ these are the right to reside, the right to

participate in the labour market, the right to access social services and the

acquisition of citizenship. Where are the reciprocal duties or responsibilities?

The

Report refers to Glover’s 2001 work on areas of government policy intervention

relevant to immigration and refugee law and states that Glover claims that there

is ‘legal flexibility to accommodate cultural/religious customs (including changes

to the law to accommodate specific practices)’.87 Unfortunately this is not taken

further.

Gans identifies ‘bumpy integration’ where the migrant is integrated in one

domain but not necessarily all. Other models of integration are based on identity

and acknowledge change over time. For example Harrell-Bond and Voutira

recognize three stages of integration for refugees, physical segregation,

liminality and reincorporation. What is absent from both policy documents and

academic literature (apart from the work of Ma and Van Broeck referred to

above) is an account of what integration looks like in the context of the culture-

responsibility relationship. This may be because the implementation of

integration policies (or at least strategies), such as they are, fall largely on local

government or on the voluntary and community sector and there can be conflict

between central and local government with the strong view from local authorities

that central government should not dictate policy where local differences require

flexibility.

Interculturalism is a relatively new idea, interestingly promoted by Cantle, who in

2001 was the author of the Home Office Report on Community Cohesion.

Cantle introduces interculturalism as a replacement for multiculturalism. It seeks

‘…to provide a new paradigm for thinking about race and diversity.

Multiculturalism may have had some success in the past but it has simply

not adapted to the new age of globalisation and super diversity.

Interculturalism is about changing mindsets by creating new

opportunities across cultures to support intercultural activity and it’s

about thinking, planning and acting interculturally. Perhaps, more

importantly still, it is about envisioning the world as we want it to be,

rather than determined by our separate past histories.’

It is noteworthy that the term does not yet appear in policy dialogue, despite

Cantle’s high profile (or former high profile) in the policy world. To some extent

the dialogical approach of contemporary political philosophers examined in

Chapter 4 of this thesis fits with Cantle’s framework of interculturalism. It is

encouraging that Cantle is advocating a proactive approach, such as that taken

here in searching for a just framework and interculturalism is an idea that we

can take forward to Chapter 5. The relevant question here of course is how do

integration and the culture-responsibility relationship interact? If integration is

both a process and an outcome the culture-responsibility relationship can be

part of the process of integration through its place in clearly defining rights and

responsibilities for migrants and part of the outcome as those with a cultural

background different from that of the majority become clear about how their

cases will be treated in the criminal justice system.

Multicultural Policy Pre 1960

As seen in discussing historical social reality, whilst it is possible to get a clear

picture of the nature of late nineteenth and twentieth century immigration in the

United Kingdom and government attempts to control the numbers of

immigrants, it is much more difficult to find clear policy statements on what the

response to the resultant new multicultural society should be. It is reasonable to

conclude that throughout the period discussed above there was a preoccupation

with immigration and a lack of application to the aftermath of immigration.

Academic writers seem to identify an early assumption of laissez faire certainly

until the

1960’s but there appears to be no documentary evidence of this attitude.

Kymlicka and Banting point out that ‘…each new wave of immigrants is often

perceived as a source of anxiety and insecurity by native-born residents of the

host society who worry about the extent to which immigrants are able or willing

to integrate and about the social impact of religious and cultural differences’.

Perhaps one of the ways successive governments have demonstrated of

dealing with this fear has been to adopt (consciously or otherwise) an

assimilationist policy. A 2007 Institute of Race Relations Briefing Paper states

that ‘…assimilation was the expectation when ‘New Commonwealth’ immigrants

came to help to rebuild the war-torn country.’ Again, no source is cited for this

conclusion although some academics recognise that policy makers and

researcher used both the terms assimilation and integration for the settlement of

new commonwealth immigrants. Multicultural policy becomes a little more easy

to find from 1960 onwards and we can see the development of this firstly from

1960-1997 and then during the Labour governments from 1997-2010, the

Coalition government for 2010-2015 and the current Conservative government.

Multicultural Policy 1960-1997

Perhaps the first clear policy statement comes following the racial tension of the

1960’s. A policy of integration can be identified, defined by the then Home

Secretary Roy Jenkins in a 1967 speech as ‘…cultural diversity, coupled to

equal opportunities, in an atmosphere of mutual tolerance’ and ‘…not a

flattening process of uniformity’.96 This is generally considered to be an

affirmation of integration, identifiable in four main strategies (and seen by many

as still being at the heart of integration policy today)

• Protection against discrimination and violence- this relies on a heavy

race relations agenda with Race Relations Acts being passed in 1965,

1968 and 1972. The emphasis was on ‘good race relations’, peaceful

coexistence through toleration, diversity and pluralism.

• The collection of data.

• Controls on immigration.

• Legal duties to promote good community relations.

Multiculturalism was not really part of the political dialogue and policy, such as it

was, relied heavily on a race relations agenda. Tiryakian identifies a

‘paradigmatic shift’ in how modern states approached multicultural policy in the

years from the mid 1960’s as they dealt with demographic change and

considered what that meant.98 This shift was towards ‘acknowledging,

accepting, welcoming and accommodating the presence of others’. So how

have successive governments responded in the way of multicultural policies

since the end of the

1960’s?

It has been difficult to find evidence of multicultural policy emanating from

successive governments from 1970 to 1997. 99 Tiryakian says that from the

1970’s multiculturalism was ‘…a way of reconciling a certain pragmatism about

living together- in practice rather than theory- with a striking traditional belief in

the role of community, neighbourhood initiatives, cooperatives.’ 100 This was

never enshrined in doctrine, policy or national ideology but it moved the United

Kingdom towards a vision of society ‘based on group identity and defined on

ethnic/racial lines’. Such policy as there was tended to be localized and evident

within major cities as funding was made available for various BAME groups.101

e%20Field > accessed 1st October2018, 116.

98 Edward A Tiryakian, ‘Assessing Multiculturalism Theoretically: E Pluribus Unum, Sic et Non’

International Journal of Multicultural Societies 5 (1) 20-39 26.

99 These are

• 1970- 1974-Conservative Government, said to have had an

uneasy relationship with multiculturalism.

• 1974- 1979-Labour Government • 1979- 1997-Conservative

Government

100 Tiryakian (n 98) 26.

101 British and Minority Ethnic.

Multicultural Policy 1997-2010

It was during this era of Labour governments that interest in multicultural policy

seemed to be at its peak. The Parekh Report, commissioned in 1998 was

published in 2000. 102 This is a forward looking and aspirational document rather

than a backward looking one that summarises former policy. There is a section

that deals with criminal justice but the focus is on racism and diversity. 103

Although there is no attempt within the report to engage with legal principles

and theory the report points to evidence of the fact that ‘…there is a perception

in Asian, black and Irish communities that the criminal justice system is not

just’.104 This is based on data that shows ‘that black and Irish people are

differentially treated at all stages of the criminal justice system’.105 The Report

does not give further detail of why this might be so and neither does it suggest

any follow up recommendations.

This was an era during which the European Union began to have influence on

domestic multicultural policy and although, in the light of Brexit, it is not

important to explore this in any depth, the strong EU led commitment to

integration needs to be recognized for relevance to the direction that

multicultural policy in the

102 Parekh, The Future of Multi Ethnic Britain (n 65). The Runnymede Trust is an independent

think-tank that aims to promote racial justice in Britain. The Commission was asked to:

• Analyse the present state of Britain as a multi-ethnic country

• Suggest ways in which racial discrimination and disadvantage can be countered

• Suggest how Britain can become 'a confident and vibrant multicultural society at ease

with its rich diversity’

Runnymede Publications<http://www.runnymedetrust.org/publications/29/32.html> accessed 1st

October 2018.

103 The checklist of recommendation for the way forward for the criminal justice system focuses

on eradicating racism (for example it calls for research into the characteristics of persons

convicted or cautioned for racially aggravated offences under the Crime and Disorder Act

1998) and on recognizing diversity (for example it calls for a judicial appointments

commission to oversee appointments to ensure that the judiciary is more diverse).

104 Paragraph 10.3 of Parekh, The Future of Multi Ethnic Britain (n 65) 126.

105 ibid.

United Kingdom has taken. Through the Treaty of Amsterdam, the European

Union had, and currently still has, an ever increasing power on national

immigration policies (although the Treaty of Lisbon makes it clear that

integration is subject to the subsidiarity principle). It is claimed that this is a

policy of legal rights based on a non-discriminatory paradigm.106 Since the

Treaty of Amsterdam the European union has been seeking a coordinated

policy on integration. The Migratory Policy Group has produced a series of

Handbooks on Integration on behalf of the European Union.107 The Justice and

Home Affairs Council have produced a list of 11 Common Basic Principles for

Integration.108 However, as with domestic policy there is a general absence of

interaction with law and the list of policy variables for shaping a societal model

(in the search for more adequate models of multiculturalism) does not include a

legal dimension.109

Broadly, Labour governments from 1997-2010 show three distinct phases and

attitudes towards multiculturalism. The first is a celebratory attitude towards

Britain’s ethnic diversity;110 the second, a move towards community cohesion

(which shifted the focus from group identity to promoting interaction between

groups) following disturbances in northern towns and the Cantle Report which

106 Microcon- 6th Framework Programme of the European Union (May 2011) 15.

107 The latest one was published in 2010. Jan Niessen and T Huddleston, Handbook on

Integration for Policy Makers and Practitioners’ (2010) European Commission Directorate

General of Justice Freedom and Security Brussels.

108 JHA Council 2618th Council Meeting Press Release 14615/04 Brussels 19th November 2009

Agreement on Common Basic Principles of Integration 2004

109 The list is taken from the above document and reads as follows

• Citizenship and political participation

• Education

• Housing

• Healthcare

• Employment

• Policing

• Allowance of Islamic Practices and Symbols Taken From above document

110 Evidenced for example in the celebration of ‘Cool Britannia’, a period of pride in the unique

culture of Britain.

identified a society of polarization and fractured lives but still advocated the idea

of community cohesion and the need for secure borders following 9/11; and the

third a reaction to the 7/7 bombings in 2005 and the government announcing a

major review of multiculturalism with an emphasis on counter terrorism and the

PVE (Prevention of Violent Extremism) Initiatives. There are claims that the

Labour administration from 1997-2010 undertook a clear response to the

doctrine of multiculturalism in the form of ‘…state support and funding for

minority groups to preserve their culture…’ However, the Migratory Policy

Institute states that this was a misunderstanding as ‘there never was a clear

doctrine or programming on multiculturalism in the United Kingdom’. A Downing

Street speech by Tony Blair in December 2006 is interpreted as being against

the ideology of multiculturalism and in part led to media talk of a ‘backlash’

against

multiculturalism. Whilst Blair referred in that speech to the need for ‘allegiance

to the Rule of Law’ he also stated ‘If you come here lawfully we welcome you. If

you are permitted to stay here permanently you become an equal member of

our community and become one of us. The right to be different. The duty to

integrate.

That is what being British means’.

The Department for Communities and Local Government was set up in 2006

and the main focus of the Department were the Independent Commission on

Integration and Cohesion, the Migration Impacts Forum and the Migration

Impacts Fund115. The Independent Commission on Integration and Cohesion

made their final report in 2007 (Our Shared Future) and made 57

recommendations that were responded to in the 2008 Government Report (The

Government’s Response to the Commission on Integration and Cohesion).116

This 2007 report was key in the development of policy because it attempted to

set out a new definition of integration and community cohesion and recognized

for the first time that integration was key to cohesion. It clearly set out 3

foundations

• People from different backgrounds having similar life opportunities.

• People knowing their rights and responsibilities.

• People trusting one another and trusting local institutions to act fairly.

It further identified three key ways of people living together

• A shared future vision and sense of belonging.

• A focus on what new and existing communities have in common

alongside a recognition of the value of diversity.

• Strong and positive relationships between people of different

backgrounds.

115 The Migration Impacts Forum was set up in June 2007 so that experts working in the field

of migration could present ministers with evidence of the impact of migration. By 2009 the

Labour government were considering bringing the forum to an end and replacing it with the

Migration Advisory Committee. This latter body which is an advisory non-departmental public

body sponsored by the Home Office still exists.

The Migration Impacts Fund was set up in 2009 but scrapped by the Coalition Government in

2010. It had funded local authorities to work with migrants to provide community cohesion.

116 Our Shared Future: Final Report of Commission on Integration and Cohesion (June 2007)

<http://resources.cohesioninstitute.org.uk/Publications/Documents/Document/Default.aspx?reco

rdId =18> accessed 1st October 2018.

Department for Communities and Local Government 2008, ‘DCLG annual report 2008

(15 May 2008)

<http://resources.cohesioninstitute.org.uk/Publications/Documents/Document/DownloadDocum

entsFile.aspx?recordId=17&file=PDFversion > accessed 1st October 2018.

The 2008 report responded by making several recommendations. Relevant here

are (2) that central government should set out a clear policy on integration and

cohesion, (17) that there should be a new body to manage the integration of

new migrants independent of government but sponsored by DCLG (38) DCLG

should clearly set out what their strategy is in funding intercultural dialogue.118

However, subsequent reports are critical of the Labour government for

consistently failing to take measures to implement the recommendations made.

If integration was considered to mean people knowing their rights and

responsibilities, what was done to bring this worthy objective into practice?

The Goldsmith Review followed this. This is arguably the most significant

government report in terms of the culture-responsibility relationship (and the

criminal law more generally) as it does at least introduce the notion of legal

responsibility. In the Executive Summary which looks at the ‘Legal Rights and

Responsibilities of Citizens’ it is pointed out that there is a right of protection

coupled with a duty of allegiance. This duty of allegiance includes ‘the duty to

obey the law when in the United Kingdom and liability for certain offences in the

United Kingdom even if committed abroad’. But it is acknowledged that the

previous report (the 2008 Department for Community and Local Government

Report) ‘…observes that the history of legislation on citizenship and nationality

has led to a complex scheme lacking in overall coherence or any clear and

selfcontained statement of the rights and responsibilities of citizens’.120 At point

27 the Goldsmith Report states that there has never been any attempt to make

a statement on the rights and responsibilities of citizens. However, Goldsmith

says that this would be overly legalistic and the only suggestion is for a narrative

statement that would not be justiciable. Clearly, citizens are expected to obey

the law and although there is no overarching statutory duty in English law to

obey the law, all who receive its protection are under a duty to do so and upon

prosecution will attract punishment if they do not. And protection is stated to

amount to defences and mitigation (point 46). The implied duty to obey the law

is not drawn tightly by reference to citizenship and this is extended to those

acquiring citizenship under the British Nationality Act 1981.121 However, a

blurring of citizenship is noted (point 14) and this arises in terms of loyalty as the

courts have suggested that non-citizens too may be subject to the duty of

allegiance. In R v Tchorzewski Lord Campbell said ‘…those who find asylum

here must ever bear in mind that while they have the protection of the law of

England they are bound to obey that law’.122 With the social reality of

multiculturalism as it is today we need to look beyond notions of citizens to

those of immigrants, migrants and refugees. Some international instruments

also say that certain classes of migrant must obey the law for example, the

Convention Relating to the Status of

Refugees 1951 Article 2.

121 Oath of allegiance from British nationality Act 1981

I, (X) swear by Almighty God that on becoming a British citizen I will be faithful and bear

allegiance to Her Majesty Queen Elizabeth, her heirs and successors according to law… I will

give my loyalty to the United Kingdom and respect its rights and freedoms. I will uphold its

democratic values. I will observe its laws faithfully and fulfill my duties and obligations as a

British citizen’

Section 42 Schedule 5 Paragraph 1 British Nationality Act 1981

Since 1st January 2004 this has been amended to read

I will give my loyalty to the United Kingdom and respect its rights and freedoms. I will uphold its

democratic values. I will observe its laws faithfully and fulfil my duties and obligations as a

British citizen.

122 R v Tchorzewski [1858] 8 St Tr NS 1091 referred to in the Goldsmith Report.

The Goldsmith Report was followed by The Governance of Britain, a Green

Paper whose aims were to forge a new relationship between government and

the citizen and to begin the journey towards a new constitutional settlement,

with an emphasis on enhancing the rights and responsibilities of citizens. It was

‘…the first step in a national conversation’. This paper was different from other

government initiatives because it was the first to emphasize the need for

widespread consultation. It was not on multiculturalism specifically but

introduced the possibility of a ‘British Statement of Values’ and a ‘British Bill of

Rights’ and followed on from Gordon Brown’s speech at the Labour Party

Conference in the Autumn of 2006:

‘We the British people must be far more explicit about the common

ground on which we stand, the shared values which bring us together,

the habits of citizenship around which we can and must unite. Expect all

who are in our country to play by our rules’.

The focus on ‘Britishness’ is ascribed to a number of factors including the threat

of home grown terrorism and the impact of multiculturalism on society. It is

arguable that the Green Paper did not really engage with the social reality of

multiculturalism with its emphasis on citizenship at a time when net migration to

the United Kingdom was at its peak but it did lead ultimately to the

Constitutional

Reform and Governance Act 2010.

Interestingly migrants rather than citizens were the focus of the next government

papers. The 2008 Managing the Impacts of Migration; A Cross Government

Report was updated in June 2009 with Managing the Impacts of Migration:

Improvements and Innovations. In the foreword to the latter document it states

‘…equally where migrants choose not to play by the rules we will work with the

police to come down hard on those who commit crimes and remove those who

cause most harm in our communities…making newcomers earn their

citizenship…by obeying the law.’ There is a separate section on crime and

policing which refers to Immigration Crime Partnerships across England and

Wales (between UKBA and ACPO) and to the establishment of Immigration

Crime Teams.

In the 2008 paper Face to Face a framework is suggested for the way in which

the government will support stronger dialogue between people of different

faiths.

This followed on from a multifaith event held at Parliament on 3rd January 2000,

‘a shared act of reflection and commitment’, hosted by the government and

assisted by the Inter-faith Network for the UK and was based on a three month

public consultation with 185 responses. One question in this consultation asked

‘Tell us about issues which limit the ability to bridge and link’. The response was

gender issues and conventions about men and women in public which of course

ties in with feminist concerns around the recognition of culture.

Multicultural Policy 2010-2015

In 2010 the Coalition government began with a focus on integration. In a revised

PREVENT strategy (Home Office 2011) it was stated that ‘…we will do more

than any government before us to promote integration’. Against this rhetoric

there was dialogue, particularly in the media, about a ‘retreat’ from

multiculturalism, although Phillips identifies this retreat as beginning from 1990’s

onwards as ‘…multiculturalism became the scapegoat for an extraordinary array

of political and social evils’. But, although Phillips argues that we have a ‘robust’

multiculturalism arrived at through ‘multicultural drift’ rather than a conscious

philosophy or indeed policy (a viewpoint that supports the theme running

throughout this chapter that multicultural policy is elusive) it is a retreat from

multiculturalism that forms the political context for her book Multiculturalism

Without Culture. Song argues that there is only a backlash in relation to

immigrant multiculturalism, a political backlash based on fear of the ‘other’ but

as that is the widely held perception of the nature of our multiculturalism she

would in effect seem to recognize the backlash. With this in mind the

government (through the

Department for Communities and Local Government) published a report in

February 2012 Creating the Conditions for Integration stating that ‘ …it is only

common sense to support integration’ Yet, there is still difficulty about what

‘integration’ means within the document and there are some interesting

anomalies in the Report. Confusingly, there is reference to abandoning

multiculturalism and adopting ’a more assimilationist approach’, which in turn

does seem to suggest a retreat from state multiculturalism and invites the

question ‘what did the Coalition government’s version of integration actually look

like’? Despite the separate PREVENT strategy, the 2012 report states that

integration is ‘central to long term action to counter extremism’, emphasizing

again the focus on security. The Report recognizes that integration challenges

have traditionally been met through legal rights and obligations around equality,

discrimination and hate crime but it calls for ‘changes in society’, not just law

and states that this is a not a job for government but for collective action. The

Report envisages that collective action will come about if the government ‘…

create(s) the conditions for civic leadership on integration’ because integration

comes from every day activities and the government should only intervene

‘exceptionally’ but the government agreed to take some steps including

• The Big Lunch

• Superact and Making Music Event – a national community music making

day held on 9th September 2012 (and repeated 10th-12th July 2015 funded

by DCLG)

• Reform to Immigration and Settlement Rules.

The conclusion to the report was that the government’s role in achieving an

integrated society should be strongly shaped by localism and the ‘Big Society’.

The 2016 Casey Review sums this up dismissively as the era of ‘saris, samosas

and steel-drums’ and not surprisingly Cavanagh identifies that ‘…currently the

government is struggling with a dilemma - universal values or distinctive values’

By the end of their term of office the Coalition government was struggling within

an atmosphere of negativity surrounding the term ‘multiculturalism’ (as used in

the first interpretation in the introduction to this chapter) yet an acknowledgment

that a culturally diverse population is an essential feature of contemporary

society. As Cantle states ‘…multicultural policies are toxic but multicultural

societies are the future’.133 There was a general sense that the policy and

practice of integration was lacking direction. This was evidenced in a number of

independent reports. The Migration Policy Institute stated that ‘…few countries

make systematic efforts to integrate immigrants and refugees into their social

and political fabric and fewer still can claim success…’ and a Migration

Observatory Policy Primer observes ‘…a lack of consensus on the objectives of

policy intervention and some suspicion of government intentions has meant that

the term integration is contested and not used consistently at national or local

level… This has been a contributory factor in a lack of coherence on policy,

including a lack of clarity on the demarcation between policy relating to migrants

and to British born ethnic minorities.’ The Migration Observatory summarises

integration as a minimalist strategy where ‘…the various strands of immigrant

integration indicate a policy shift away from multiculturalism but not a regression

to the acculturation and assimilationist frameworks publicly adopted by some

European countries in recent years’. Although the report states that we have a

tradition of migration and a tradition of tolerance, this view does not seem to

accord with the statement within the document itself that integration is being

seen as ‘central to long term action to counter extremism’. The paper also

states that ‘…we will robustly challenge behaviours and views which run counter

to our shared values such as democracy, Rule of Law, equality of opportunity

and treatment…’

The strategy is minimalist because in the past integration challenges have been

met with legal rights and obligations around equality, discrimination and hate

crime but now, claims the report, we need changes in society, not just law and

this is a not a job for government but for collective action. It claims that the

Government intends to ‘create the conditions for civic leadership on integration’

and sets out how this is to be achieved. The emphasis lies on the premise that

integration comes from every day activities, so that the government needs to

intervene only ‘exceptionally’. The report has its critics. Despite the robust

government emphasis on integration as a policy for the way forward the

Migratory Policy Institute still claims, in its executive summary that ‘… the

United Kingdom has not developed a formal integration programme’ and

identifies an ‘uncertain way forward’ in terms of multicultural policies. Cavanagh

criticizes the 2012 report for its many omissions. She agrees that integration

can happen in practice without government intervention but claims that there is

a role for policy. The state has clear obligations towards migrants and migrants

in turn have responsibilities towards society but they state ‘…these

responsibilities are clear in current policy: learn the language and obey the law’.

Learning the language may be clear, but where is ‘obey the law stated’? Under

the Coalition government there was also an organisational issue within

government as responsibility for migrants was shared among various

departments. However, there was some specific reference to the law in a limited

context such as the Ministerial Group on Gypsies and Traveller’s Progress

report April 2012 which outlined 26 commitments across government including

‘improving access to the criminal justice system’ through the National Offender

Management, the Shpresa Programme which reported on impact of migration

and on working with Albanian nationals to help them understand their rights and

responsibilities in the United

Kingdom and the IRSS report ‘Mapping the Field’ reports on research done by

Stevens on law and policy towards Roma in the UK. In that latter report under

the heading ‘Justice and the Legal System’ it states ‘…the justice and legal

system appears to be under-represented in legal research.’

Cantle is very critical of successive governments for the failure to coordinate

integration programmes, for the emphasis on a system based on group rights

and social initiatives and for policy confused with anti-terrorism measures. By

2012 he was calling for a review of multiculturalism. ‘There is a timely and

obvious need to develop a progressive rethinking on multiculturalism. For many

reasons, not all of which are fair, the multicultural brand has become toxic and

enjoys little by way of popular nor political support.’ However it is not just about

rebranding.

Multicultural policies were developed in the 1960’s and while arguably

appropriate for that time have failed to adapt to the current period of

globalization and superdiversity.

Integration, under the Coalition government was still difficult, with a sense that

there was a lack of conceptual clarity about integration and a common

understanding about the role of government in promoting it and clearly there

was no interaction between integration and law. The Casey Review, discussed

below, states that the Coalition government had promised a stronger integration

strategy but PREVENT was too controversial to deliver and ‘…attempts to

promote

integration had not fulfilled their stated aim.’

Multicultural Policy 2015-Present Day

The present Conservative government therefore inherited something of a

minefield on multicultural policy. On 8th May 2015, a day after the General

Election, a Policy Paper was issued stating ‘…we want to achieve more

integrated communities.’ In reality this was just a list of projects funded between

funded projects 2010 to 2015 under the Coalition government and the statement

that integration is a local issue and requires a local response because local

communities should identify the issues that affect their areas and shape their

own responses. Whist Cameron, as leader of the Coalition, had renounced state

multiculturalism in 2011 the current Conservative government has not clearly set

out its policy on multiculturalism. Policy is now under the umbrella of the

Ministry for Housing, Communities and Local Government whose focus seems

to be housing. However, a Hansard search shows 34 references to

multiculturalism in Parliamentary debate between 1st July 2015 and 31st October

2018. Whilst, once again, the content of such debates is linked mainly to

terrorism, immigration and

Brexit, there have been debates on ‘Public Life: Values’ and ‘National Life:

Shared Values and Public Policy Priority’. In the latter Lord Blencathra states

that ‘…we must not in the name of discredited multiculturalism sacrifice our

western liberal democracy’ and Lord Bilimoria states that ‘…in encouraging

multiculturalism we did not encourage integration enough.’

Policy in the early years of the Conservative government seems to echo that of

the Coalition with a search on the Department for Communities and Local

Government website on 15th January 2016 showing up to date news as ‘Your

Guide to Planning a Street Party.’ However, due to concerns about terrorism,

immigration and the economy, in July 2015 the new government commissioned

Dame Louise Casey to undertake a review of integration and opportunity in the

countries most isolated and deprived areas and the Casey Review was

published on 5th December 2016. The terms of the Review were to consider how

well we all get on and how well we do compared to one another. The review

team met with 800 people and considered written submissions from another 200

and

‘…none said that there was not a problem.’ Paragraph 1.8 of the Review states

that ‘…creating a just fair society where everyone can get on is a cornerstone of

Britain’s values.’ The Review is a mine of information and gives a strong sense

of guidance for the way forward. In it we see encouraging evidence of

engagement with law although the terms ‘culture’ and ‘multiculturalism’ seem to

have all but disappeared from its language.

Whilst the Review envisages an ongoing national conversation about the steps

that everyone can take to increase integration and opportunity it also makes

some initial recommendations. These are set out in paragraph 1.75 and include

the need ‘…to improve the integration of communities in Britain and establish a

set of values around which people from all different backgrounds can unite. This

is envisaged through (and numbers 4, 5, 6 and 12 from a list of 12 are quoted

here)

• (4) attaching more weight to British values laws and history in our

schools.

• (5) considering what additional support or advice should be provided

to immigrants to help them get off to the best start in understanding

their rights and obligations and our expectations for integration

• (6) …consider the introduction of an integration oath

• (12)…consider an oath for holders of public office enshrining respect

for the Rule of Law and equality.

The Review states that ‘…numerous reports of community cohesion and

integration had been produced in the preceding 15 years but the

recommendations they had made were difficult to see in action.’ Part of that is

because ‘integration’ is ‘…a nebulous concept which resists a single definition or

description.’

‘British Values’ have been an important theme under Labour, Coalition and

current Conservative governments. The current government, in its Counter

Extremism strategy, recognizes the combination of the following as integral to a

successful and cohesive nation- democracy, the Rule of Law, individual liberty,

equality, freedom of speech and mutual respect, tolerance and understanding of

different faiths and beliefs. Integration too, requires these common values’…but

these need to strike the right balance between the benefits of diversity and

those of unity or cohesion.’ We can see in the culture-responsibility relationship

the need to strike this very same balance. The Review recognizes that ‘…

respect for the law has featured as a popular attribute in a variety of surveys on

values and Britishness, including a 2015 ComRes Poll in which it was ranked

second ‘most important’ British value.’ However, there is no further discussion of

what this means or of how respect for the law should be enshrined in wider

multicultural policy. The Review goes on to look in detail at religion, education

and inequality but there is no mention of ‘respect for the law’ other than in

relation to ‘Religious

Codes’ which looks at arbitration by non-state agencies and the call for

government and law enforcement agencies to take action against practices

incompatible with ‘UK’ law in this dimension.

Following on from the initial recommendations of the Review outlined above,

there are 12 broad recommendations for moving forward. These include a call

on central government for a programme to improve community cohesion with

local authorities to pick up on a breakdown of integration at the earliest stage

and as we saw in paragraph 1.75(4) the promotion of ‘British’ laws, history and

values within the core curriculum in all schools to ‘…build integration, tolerance,

citizenship and resilience in our schools.’

In the Review, Casey is critical of past failures ‘…to implement practical actions

with sufficient consistency, persistence of force to keep pace with the rate of

change in communities.’ This echoes the findings of an All Party Parliamentary

Group Report following an enquiry into the integration of immigrants and

published in August 2016 which commented on the ‘hitherto remarkably

noninterventionist’ role of government and called for a pro-active and

comprehensive government strategy. Casey does not blame any particular

administration but identifies a failure of will to take practical action and the

approach to cohesion over time as ‘wrong’ with ‘…a long standing failure to

manage the settlement of migrants a particular concern’ although she does note

that cohesion policy has been squeezed out since 2010 ‘…with the [Coalition]

government only willing to act exceptionally over the issue falling well below its

stated ambition of ‘to do more than any government before to promote

integration.’’ 156 The previous reports (many of which we have reviewed here),

she says make ‘sorry reading’ because ‘…the vast majority-if not all- of the

findings, recommendations and concerns could be or are echoed in this

Report.’157 A year after publication of the Review there was no evidence of the

current government having acted upon the implementation of Casey’s

recommendations with Casey herself criticizing the government for its failure to

act and citing a preoccupation with Brexit as the reason.158

However in March 2018 the government published its Green Paper ‘Building

Stronger More Integrated Communities’ inviting views on its vision for ‘…

building stronger integrated communities where people-whatever their

background- live, work, learn and socialize together based on shared rights,

responsibilities and opportunities.’ The consultation was open from 14th March to

5th June and the outcome is currently awaited. The key government proposals

include the consideration ‘…of providing information to prospective migrants

before they arrive in the United Kingdom to give them a clear expectation about

our life in modern Britain including our laws, norms and standards.’159 And

perhaps finally we find something that refers, obliquely at least to the culture-

responsibility

156 Dame Louise Casey, ‘The Casey Review, A review into Opportunity and Integration’

(December 2016)

<https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data

/file/575973/The_Casey_Review_Report.pdf> a ccessed 1st October 2018, para 10.3.

157 ibid.

158 Matthew Weaver, ‘Louise Casey: Ministers have Done Absolutely Nothing about Cohesion’

The Guardian (5th December 2017)

<https://www.theguardian.com/society/2017/dec/05/louise - casey - ministers - have -

done absolutely - nothing - about - cohesion > accessed 1st October 2018.

159 2018 Integrated Communities Strategy

Ministry of Housing Communities and Local Government

Green Paper Building Stronger More United Communities (2018)

<https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data

/file/696993/Integrated_Communities_Strategy.pdf> accessed 1st October 2018, 14.

relationship in the statement on page 56 that ‘…the links many immigrant

communities have to their countries of origin can present challenges to

integration where social or cultural norms overseas alter from British values and

influence the way that people behave here…we need to better understand

these international influences and their impact on integration.’

We can therefore conclude that integration is still the dominant way of thinking

about multicultural policy and perhaps we have the clearest government

statement on multicultural policy for a long time. A review of multiculturalism as

philosophy may help us to understand how the culture-responsibility relationship

and the policy of integration can interact.

4.4 Multicultural Philosophy

Raz says that multiculturalism is a relatively new word, and that the Oxford

English Dictionary traces it to the 1950’s and 1960’s. If Song is correct in her

assertion that multiculturalism as philosophy is ‘a body of thought in political

philosophy about the proper way to respond to cultural and religious diversity’

there is a huge amount of thought on what that response should look like.

Multicultural philosophy seeks to offer a way through the imbalances in society

that arise from ‘difference’ and, like state multiculturalism, promotes the

recognition of difference through the ‘politics of difference’. Bhandar asserts that

multiculturalism derives from Hegel’s political philosophy of recognition. This in

turn draws on the work of Fichte. According to Hegel, the relationship between

the self and others is the fundamental defining characteristic of human

awareness and activity. Multiculturalism is therefore associated with ‘identity

politics’, the ‘politics of difference’ or ‘the politics of recognition’, seeing oneself

through the perspective of others. The term the ‘politics of recognition’ was

introduced by Taylor in 1992 who argues that recognition constitutes a vital

human need and that misrecognition is a violation. Citizens are therefore

engaged in a ‘struggle for recognition’ and adequate recognition can only be

achieved within ‘...an institutionalised order of rights.’ These early ideas on

recognition have been refined and Benhabib says that to be a ‘self’ is to insert

oneself into ‘webs of interlocution’ because ‘…our agency consists in our

capacity to weave out of those narratives our individual life stories which make

sense for us as unique selves.’ The intersubjective constitution of the self

therefore comes from dialogic moral practices but she distinguishes identity

politics (with its belief that we can and should do justice to certain claims by

allowing the group to define the content as well as the boundaries of its own

identity) from the politics of recognition which can ‘…initiate critical dialogue and

reflection in public life about the nature of the collectivity itself.’167 The challenge

in the context of culture and legal responsibility is to work out how the culture-

responsibility relationship can fit into the established order, how best that

relationship can do justice to recognition and how it can avoid misrecognition.

The aim of this section is to situate the culture-responsibility relationship in the

discourse on multicultural justice.

If the emphasis in policy has been on rights (and not responsibility) then

traditionally the emphasis in philosophy has been on groups (and not

individuals). The question for this thesis is how multicultural philosophy can help

us understand what is at stake in the wider realm as we seek to find an answer

to the research question. Interaction between multicultural philosophy and the

culture-responsibility relationship is neatly summed up by Levine who states

that ‘…in a culturally diverse society, there is an inherent conflict between the

unity required to govern, the need to honour diverse traditions and practices of

cultural groups, and the recognition accorded to autonomous individual actors’.

In section 2.4 we identified a number of recurring themes within this attempt to

balance governance, culture and individuals but we have been consistent in

making the importance of the group subsidiary in the context of the

cultureresponsibility relationship. We have acknowledged the historical

interpretation and adaptation of influential factors by a group in creating a

‘culture’ that is in turn adopted and adapted by the individual but the culture-

responsibility relationship pertains solely to the individual. However, we can see

that multicultural philosophy as well as multicultural policy has traditionally

centered around the group. If we go back to the understandings of multicultural

policy set out in section

4.1 we recall ‘state’ multiculturalism’ as a situation where the cultural minorities

are, or are thought of, as distinct communities and where multiculturalism

encourages this distinctiveness. Within this therefore there is the recognition of

the ‘group’ and the ensuing fear of cultural relativism as one group is placed

higher in the group hierarchy than another. There is the fear of pluralism. There

is the fear too of essentializing, as individuals are overlooked as autonomous

agents and ascribed the perceived characteristics of the group. These are

issues that we reviewed in the context of the culture-responsibility relationship in

section

2.4 where such fears, broadly labelled as threats to equality, were assuaged.

Dworkin says that every plausible political theory has the same ultimate value,

equality. So the debate is not about accepting equality but about how to

interpret it and multiculturalism raises several issues for equality. Taylor wrote in

1992 of the switch from the equality of sameness to the equality of difference.

Liberal egalitarian multiculturalism is based on the liberal values of autonomy

and equality and recognizes that culture is valuable to people because it

enables individual autonomy and self- respect and, because members of

minority groups are disadvantaged in terms of access to their own cultures, they

are entitled to special protections. The opposition to this idea is that religious

and cultural minorities should bear responsibility for their own beliefs and

practices because religion and culture may shape ones willingness to seize an

opportunity but they do not affect whether one has such an opportunity. Barry

argues that justice should be concerned with ensuring a reasonable range of

equal opportunities for the individual. Raz places limits on toleration towards

groups so that cultural communities should not be allowed the right to repress

their own members, the option to leave one’s group must be viable and publicly

recognized and all groups must allow their members ‘…access to adequate

opportunities for self-expression and participation in the life of the country in the

widest sense.

Modood, however, emphasises the importance of the group and advocates

‘strategic essentialism’. This means accepting empirically that groups do exist

and that group identity should be normatively accepted if it is important to the

bearers and therefore groups should be politically accommodated. Multicultural

strategy, says Modood, should include a new ‘we’ because anti-essentialism

alone is not enough to undermine or negate a policy of (state) multiculturalism.

Kymlicka’s work on multiculturalism comes from the premise that all minority

groups suffer disadvantage. This is especially true of national and ethnic

indigenous groups. There should therefore be state intervention to sustain

minority cultures and advance the rights of the group in the form of ‘group

differentiated rights’ but ‘…liberals can only endorse minority rights in so far as

they are consistent with respect for the freedom and autonomy of individuals.’ In

this preservation of autonomy Kymlicka is true to liberal values and it allows him

to claim that ‘…in all liberal democracies, one of the major mechanisms for

accommodating cultural difference is the protection of the civil and political

rights of individuals.’174 However, there is an argument that the group has no

moral existence of its own and so group rights are in fact individual rights.

Shachar (2001) refers to nomoi communities who are not sufficiently protected

by the individual rights offered by liberal democracies and so special group

rights are needed because ‘…once we acknowledge the constitutive

relationships that exist between state institutions and majority cultural norms,

we must prioritise substantive justice among the various cultural groups in order

to achieve some balance of equilibrium; procedural justice merely reinforces

pre-existing imbalances and dominant cultural norms.’ We argued in section 2.4

against Renteln’s call for the ‘cultural defence’ to be a mechanism for redressing

such state/individual imbalance and here there are also individual/nomoi

conflicts where individual justice for, for example, women, may be compromised

at the expense of group rights. This is, says Sachar, ‘…the paradox of

multicultural vulnerability’ whereby it is not possible to simultaneously protect

the rights of the group against the state without harming the rights of individuals

against the group. The multiculturalist approach, however, is pluralism and

based on the rights of group against state and not individual against state.

There have been arguments that link the social reality of multiculturalism with

the political philosophy of communitarianism, in turn the philosophy behind the

policy of community cohesion. We have considered communitarianism in the

context of Cotterrell’s work and its closeness to culture but it is a much more

politicised concept than culture, not least because of the theoretical ability of the

community to create its own laws because ‘…laws roots are in a social group

conceived as a united entity whose values, beliefs, common interests,

allegiances or tradition provide its foundation.’ Communitarianism emerged in

the 1990’s as a ‘third way’ perspective between the politics of the left and the

right but is criticized as the concept of ‘community’ is nebulous and Rattansi

asks ‘when does a social group constitute a community?’178 Communitarianism

can also be linked with the problem of essentialism in the way that culture can

as it is easy to make the assumption that communities are homogenous and

strongly bonded. However, in communitarianism a greater degree of agency is

implicit, a sense of a more meaningful choice for the individual about whether to

belong to a certain community or not.

But we know from the understanding of culture arrived at in section 2.2 that we

can no longer consider groups as bounded and static. The politics of recognition

is also criticized because the theory does not distinguish between legitimate and

illegitimate struggles for recognition, it only recognizes single sites of oppression

and it does not look at struggles within the group. We know too that the

cultureresponsibility relationship is concerned with the individual and the quest

for true blameworthiness and therefore we have to look to philosophy that

moves away from the idea of the group. In essence, we cannot deny the

existence of the group, both as a reality, although its boundaries are uncertain,

and as a

theoretical concept in the allocation of rights in a multicultural world. It is

important too for its interaction with the individual. Kukathas argues that there

are no group rights, only individual rights. In granting group rights the state is

overstepping the mark so states should not pursue ‘cultural integration’ or

‘cultural engineering’ but a ‘politics of indifference.’ The disadvantage of this is

that groups who do not value toleration and freedom of association (including

the right to exit a group) will practice internal discrimination. The ‘benign neglect’

approach permits abuse of vulnerable members within the group. This of course

is the fear that lies behind the multiculturalism/feminism paradigm discussed in

section 2.4. Barry is concerned with ‘…views that support the politicization of

group identities, where the basis is of the common identity is claimed to be

cultural.’ He is against both multiculturalism and communitarianism because

they ‘…reward the groups that can most effectively mobilise to make demands

on the polity.’181 Benhabib argues that in response to the ‘strange multiplicity of

our times’ we have rushed into the premature normativisation of group identity

which has resulted in hasty policy recommendations. We have already

considered Benhabib’s criticism of the reification of the group which she argues

is based on a faulty epistemology and she defends social constructivism as a

comprehensive explanation of social difference but insists that all analyses of

culture must begin by distinguishing the standpoint of the social observer from

that of the social agent. She rightly asks the question ‘…why should the

individual’s search for an authentic selfhood be subordinated to the struggles of

collectives unless we have some ontological or hierarchical ordering of the

groups to which the individual belongs, so that one group, more than other

groups, can be said to portray a more authentic expression of one’s

individuality?’ She therefore recommends a ‘…deliberate democratic model that

permits maximum cultural contestation within the public sphere, in and through

the institutions and associations of civil society.’

Looking beyond the politics of recognition Modood and Uberoi recognise that

there is an ‘…intuition that different types of cultural minorities deserve better

treatment than they actually get.’ In some senses the culture-responsibility

relationship does not belong in this discourse of supremacy battles between

state, group and individual but in the wider discourse on rights, responsibilities

and justice. Parekh’s Rethinking Multiculturalism is seen as a philosophical

justification for intercultural dialogue, a new direction in addressing injustice.

Parekh rejects monism, which sees cultures as ‘…a national

organic…unchanging integrated wholes’, an understanding that coincides with

the understanding of culture we reached in section 2.2 He accepts the liberal

view of cultures as linked to individual autonomy but recognizes that individuals

need something to exercise that autonomy with and that is the beliefs and

norms of their cultures. This resonates with Ortner’s scheme, analysed in

section 2.4, for assessing the effect of culture on behaviour. However, Parekh

points out that cultures have no coordinating authority, are complex and

unsystemised, are internally varied and ‘…speak in several voices.’ They have

‘no essence’ and are ‘…never settled, static and free of ambiguity.’190 So whilst

each culture is a world of ideas it is not closed to other worlds and cultures can

learn from one another and cultural diversity should not be viewed as a problem

but as a prerequisite for the intercultural learning that leads to ‘…a richer view of

reality.’ Parekh therefore advocates intercultural dialogue for four reasons,

personal, communal, societal and universal. The culture-responsibility

relationship should be situated at the societal level where ‘operative public

values’, usually the values of the majority, can reflect too the values of the

minority.

Parekh is not alone in calling for dialogue in the search for justice. Hidden within

the multicultural philosophy of a number of writers there are calls for dialogue.

Chui asks us to ‘include people with different backgrounds in the reformulation

of legal rules.’ Barry advocates ‘…a principled dialogue on the interrelated

problems of equality and culture’.193 And Cotterrell asks ‘…what are the

demands of the immigrant population on our law?’ The culture-responsibility

relationship may not be a demand as such but it seems not only logical but just

too to ask the

‘immigrant population’ how should the criminal law of England and Wales

respond to the culture-responsibility relationship? Habermas says that, in order

to achieve context sensitive laws, we need to fully include the affected groups in

the process of decision making. Young takes this a stage further by suggesting

that (formerly) oppressed groups should have a veto over questions that

particularly affect them. In dialogue we need to be wary of ‘cultural bias’ or what

Mikhail calls, in his review of Cotterrell, a ‘failure to confront the enduring reality

of cultural hegemony’ saying that Cotterrell’s aspiration of dialogue is unrealistic.

But we have to try. Von Jhering sees law as a kind of impartial mediator

between the competing interests in society so that law’s real requirement is to

‘…relate the legal process to the developing needs of existing society.’ The use

of the word ‘developing’ is significant because it recognises the fluid nature of

the law.

Returning to Parekh’s rejection of monism, there must be implicit within this an

acceptance of pluralism. We have been wary of legal pluralism throughout this

thesis reiterating the need to situate the culture-responsibility relationship inside

and not outside the criminal law. But we have recognised value or moral

pluralism as an inevitable reality of a multicultural society. This reality has led

Parekh to seek a way through the conflict between ‘…locally valid norms

pitched against other locally valid norms’ and a return to ‘…ethical norms which

are true and therefore universal’ and he confronts this with ‘social and ethical

pluralism’. This involves the establishment of operative public values (OPVs)

arrived at through dialogue. The ‘…OPVs of a society are the public moral and

political rules that bind a particular group of people into a common society.

Without such OPVs the different and often conflicting components of a society

could not exist as a cohesive body… OPVs constitute and embody a shared

form of public life.’200 These OPVs are the way to negotiate multicultural

inclusion because the dialogue that creates them must take place across liberal

and non-liberal cultures.

At the moment the culture-responsibility relationship is not an OPV but the

framing of it arrived at in section 5.3 is a reflection the perception reached in the

course of this thesis of how far the foundations of the law can be manipulated at

this particular time. It is therefore a social and ethical reflection of the reality of

the theory and practice of our criminal law. However, dialogue around the

renewed understanding of the culture-responsibility relationship and its

suggested ambit can lead to it being regarded as an OPV as well as a law.

Shabani et al call for dialogue in the specific realm of the law, as a means of

beginning to balance the competing claims of solidarity and accommodation.

Even in a post recognition era there can be struggles over recognition,

something

Tully identifies as ‘…struggles over the intersubjective norms under which the

members of any system of government recognise each other as members and

coordinate their actions.’ These are ‘norms of mutual recognition’ and there may

be times when individuals or groups might experience a prevailing norm as

unbearable. This is because the norms are handed down by law makers and

seen as definitive and final and Tully argues that dialogue ‘…among those in the

field who are subject to the contested norm of mutual recognition’ is the way

forward in what has been called the ‘dialogical turn’. Norms of mutual

recognition might be seen as being akin to Parekh’s OPVs but there is an initial

implication that not all are invited to participate in Tully’s dialogue and in

establishing the norms. Tully later corrects this by warning against the elevation

of dialogue as a solution to all recognition problems and acknowledging the

importance of the presence of theorists, courts and policy makers within the

dialogue as a non-sovereign counterbalance. The dialogical turn is said to

satisfy the claims of justice in calling into question a top-down monological

approach to law making and embracing instead an interactive approach.

Habermas says that ‘…only those norms can claim to be valid that meet or

could meet with the approval of all affected in their capacity as participants in a

practical discourse.’ This resonates with the Rule of Law and the need for laws

to have the moral authority of the population to which they apply. This might

work with legislation but it does call into question the action that judges should

take on a day to day basis if we accept that the declaratory theory of the law

(discussed in section 3.2) is not always adhered to in practice. To address this

we need to return to Shabani’s ‘normative model of integrative adjudication’

which recognises that values are not always fully agreed. However, dialogue

could establish general norms of recognition that, once established, judges

could call upon. In any event Tully recognises that norms of mutual recognition

are not definitive and absolute and that there is space within them for

contestation or

‘reasonable disagreement’.

McCarthy agrees broadly with Tully but extends the dialogical turn to matters

beyond recognition and to a ‘multilogue’ which is perhaps a better description of

the envisaged process. He wisely cautions that there is an empirical question

over whether democratic dialogue will be successful. This is a useful practical

point because although we place emphasis in Chapter 5 on the power of

dialogue to validate the culture-responsibility relationship in the first instance

and to further its development in the second the logistics of ‘how’ need to be

resolved. He warns too that dialogue can be elitist.

If the post-multicultural critique is concerned with the essentialist way in which

cultures are understood then one of the strengths of multicultural philosophy is

the engagement of its proponents in the public sphere so that the link between

theory and practice is established. Uberoi and Modood say that multiculturalism

has become a debate about the public sphere and define the public sphere as

‘… a political space distinct from both state and economy which emerged as an

aspect of the development of the modern state and specifically of the liberal

state.’207 Section 5.4 brings together unresolved questions that have arisen

throughout this thesis that could benefit from space in the public sphere. The

framework for the culture-responsibility relationship is just a starting point raising

in some ways more questions than it answers and Parekh’s ‘intercultural

dialogue’ can begin to formulate answers to those questions because ‘…there is

a market place of ideas in which the good ones are expected to drive out the

bad ones.’

We referred in section 1.2 to a Critical Legal Studies interpretation of the ad hoc

approach of the criminal courts to questions of culture and responsibility. We

can return to this theory in the context of multicultural justice. The Critical Legal

Studies movement emerged in American law schools in the 1970’s from the

premise that liberal thought is underwritten by a number of contradictions, most

notably the difference between rules and standards and the conflict between

intentionalism and determinism. The law’s power to make social change is

hampered by its commitment to such liberal values especially universalism.

These ideas lead to unjust social hierarchies such as the domination of men

over women, rich over poor and white over non-white. Law appears neutral but

it masks existing patterns of power and control. We have seen throughout this

thesis a shift over time in some of the claims underpinning the Critical Legal

Studies movement, particularly those around identity politics where an

awareness of the structural injustice beneath the surface of the law in a number

of dimensions can be recognised and addressed through multicultural justice in

general and the culture-responsibility relationship in particular. Both

Mookherjee’s border tracing and Parekh’s intercultural dialogue can be helpful

in their recognition of sights of oppression and the oppression of majoritarian

laws and so are useful devices in warding off claims of injustice. One claim of

the Critical Legal Studies movement is that legal culture can be mystifying to

those standing outside it. In section 2.4 we recognised the perception of cultural

bias in the courtroom and suggested that the culture-responsibility relationship,

in genuinely constructed and individual cases, might be helpful in overcoming

such perceptions. We have been consistent in promoting the importance of the

cultureresponsibility relationship in the search for individual justice and we can

pre-empt the critical Critical Legal Studies interpretation of liberalism’s

autonomous individual, ‘…the liberal and romantic idea of each individual being

the author of his life and responsibility for what he makes of it’, because we

have taken account of Parekh’s remark that social contract tradition is based on

‘…the half-truth of the atomistic or individualistic ontological reduction of the

concrete human being.’ We have reconstructed our individual to be a concrete

being whose well being is of the highest value.210

Morrison says that philosophy seeks to ‘…maintain the delicate balance

between humanity and the cosmos.’ This must be especially true of

multicultural philosophy. Raz says that multiculturalism is a new way of seeing

an old truth and warns against ‘…the dangers of each one of us understanding

the universal in terms of him or herself, a danger which is particularly great

when the other is an alien in our country, when we are at home and he is not.’212

Multiculturalism therefore aims to give us a ‘heightened awareness’ and the

culture-responsibility relationship can be seen as an example of that heightened

awareness, a mechanism by which the standpoint of others in our country can

be recognized and comprehended. Jahanbegloo says that we need mediation

of our moral and human duties but that our focus needs to be’…not so much on

the intentions or motives and inner lives of individuals as on the structures of

social relations.’214 Perhaps this can be seen as being in conflict with our

insistence on the primacy of the individual for the purposes of the culture-

responsibility relationship but it resonates with Norrie’s moral contextualism in

the attribution of legal responsibility. It does not seem possible at the moment to

push the limits of the suggested framework in section 5.3 as far as to consider

the structures of social relations but this meeting of legal and multicultural

philosophy adds weight to the call for ideology around the construction of the

individual to be carried forward to the realm of dialogue as discussed in section

5.4.

4.5 Conclusion

The broad aim of this Chapter was to generate a deeper understanding of the

term ‘multiculturalism’ within the specific socio-political context of the United

Kingdom in the twenty first century. This aim was achieved in two ways, firstly

by researching the history of migration in relation to the United Kingdom,

particularly population movements since 1900, to arrive at a clear understanding

of the social reality of multiculturalism today and secondly by carrying out an

analysis of both historical and contemporary multicultural policy. We now have a

clear picture of multiculturalism as social reality and multiculturalism as policy.

We see a diverse population brought together through centuries of migration,

particularly immigration between 1950 and 2000 and fluid migration form 2000

onwards. We see an elusive and weak policy, not of state multiculturalism, but

of integration. This is characterised by the distance of central government, race

relations, immigration control and latterly anti-terrorism measures and the

implications of Brexit. Policy, such as it is, displays a lack of concern with post

immigration settlement, and references to rights, responsibilities, British values

and the Rule of Law are not followed up with explorations of meaning or

meaningful attempts at developing policy in these areas further.

In the course of pursuing that first aim we also set out to explore and establish

the idea that as a society we have not fully considered the implications of

multiculturalism for law and justice and that the perception of law and

multiculturalism as bounded fields is not unfounded. In particular we have found

that the culture-responsibility relationship and multicultural policy have not

interacted. This lack of engagement between these spheres furthers the

hypothesis that the culture-responsibility relationship remains an unexplored

concern, not just in the criminal law and criminal justice system but in the wider

realm of multiculturalism.

Throughout this Chapter we have been questioning how recourse to

multicultural policy can help in answering the research question how should the

criminal law of England and Wales respond to the culture-responsibility

relationship? The wide world of policy can seem far removed from the

seemingly small world of the culture-responsibility relationship and yet they are

intrinsically linked in a number of ways. In section 2.4 we asserted that the

culture-responsibility relationship has a socio-legal justification beyond that of

the pursuit of individual justice and the recognition of the culture-responsibility

relationship can be justified too in terms of its ability to provide a tangible legal

response to and realization of multicultural policy whilst multicultural policy can

in turn provide elucidation for the essence and ongoing development of the

culture-responsibility relationship. We have seen calls in multicultural policy for

allegiance to the Rule of Law, we have seen calls for citizens and immigrants to

know their ‘rights and responsibilities’ and to obey the law. But what has been

done to move these calls into the practical realm?

The culture-responsibility relationship can, in a narrow way, answer those calls.

It can be both the basis of a right and a responsibility. Looking back to section

2.4 and the nuanced understanding of the relationship we arrived at there we

can see that it affirms the responsibility of the individual to obey the law and it

creates the legal right of the individual to have cultural evidence taken into

account in court in limited and defined tightly circumstances. If we take

integration as the basis of current multicultural policy and pick up on the recent

reference in multicultural policy to British values including respect for the law,

then the cultureresponsibility relationship can be seen as reinforcing that

respect whilst at the same time encompassing the tolerance that our society is

renowned for.

We have questioned too how recourse to multicultural philosophy can help in

answering the research question. The politics of recognition give the

cultureresponsibility relationship a political purpose and give clarity to the

conflict between individual and group. Whilst we have been clear throughout

this thesis that justice in itself is an adequate justification for the existence of

the cultureresponsibility relationship, seeing it as a means by which ‘the other’

can be recognised adds weight to its importance.

At the end of Chapter 3 we saw the reluctance, perhaps even the fear, of the

criminal law and criminal justice system to engage with culture. Moving this to

the next level we can see from the analyses in this Chapter the reluctance of

multicultural policy to engage with law, particularly the criminal law. It is no

wonder then that the culture-responsibility relationship is under-explored in

multicultural policy and yet in Chapter 2 we established its importance for

contemporary justice in a multicultural society. If multiculturalism (as policy)

evades law and law in turn evades culture, yet culture is the basis of

multiculturalism (as social reality) then the circle does not quite meet up and

there is a sense that justice cannot be achieved. In section 4.4 we turned to

multicultural philosophy in the hope of finding the answer to a just way forward

for the culture-responsibility relationship. Some of the issues have been

explored in earlier parts of the thesis, particularly in section 2.4 where the

problems inherent in the culture-responsibility relationship were also seen as a

socio-legal justification of its importance. But where uncertainty creeps in the

best answer comes from dialogical theory and we can identify and take forward

to Chapter 5 suggestions for further dialogue.

Whilst the broad aim of the Chapter has been achieved some tangible progress

has been made towards answering the question how should the criminal law of

England and Wales respond to the culture-responsibility relationship? The

current government rhetoric does seem more committed to engagement

between law and multicultural policy and we need to harness this interest and

take forward to the framework in Chapter 5 thought about how legal

responsibilities generally and the culture-responsibility relationship in particular

can be incorporated into the wider multicultural picture as well as into the

practice of our criminal law.

Whilst there seems to be agreement that ‘state multiculturalism’ has failed,

multiculturalism in terms of a demographic description is still very much a social

reality and the development of multicultural policy, pending the response to the

Green Paper consultation, is looking encouraging. Baroness Mobarik recently

said in the House of Lords ‘…for a long time, diversity or multiculturalism were

celebrated and encouraged on this island… it is deeply disappointing to think

that multiculturalism was simply a failed experiment… it was not multiculturalism

per se which was at fault but the way that we went about promoting it…just

because we got multiculturalism wrong, we must not be reactive, go to the other

extreme and impose assimilation.’215 The culture-responsibility relationship can

sit well within a framework of integration and its recognition can be seen as a

positive step toward a coherent multicultural policy that engages with law and

justice and

215 Baroness Mobarik in House of Lords Debate on Public Life Values 16th July 2015. 215

<https://hansard.parliament.uk/Lords/2015 - 07 -

16/debates/15071640000146/PublicLifeValues?

highlight=multiculturalism#contribution 15071641000001 > accessed 5th February 2018.

that balances respect for the Rule of Law with the recognition of individual

difference. Chui recognized this almost twenty five years ago when she saw

three possible responses to the ‘cultural defence’, affirmation (which

corresponds most closely with exclusion), opposition (which corresponds most

closely with coercive assimilation) or an intermediate position in which cultural

evidence is used to show the defendant’s state of mind. We need to take

forward to Chapter 5 the argument that the culture-responsibility relationship is

integral to the criminal law in a multicultural era and that it needs to be

considered in the context of multicultural policy because currently the criminal

law is not doing’…all that it can to help us live with our differences.’

CHAPTER 5 The Way Forward and Conclusions

‘The challenge then is to take minds and hearts formed over the long millenia of

living in local troops and equip them with ideas and institutions that will allow us

to live together as the global tribe that we have become.’

5.1 Summary of Arguments

In this thesis we have undertaken a socio-legal and interdisciplinary analysis of

the relationship between culture and legal responsibility focusing on the

individual (not the group) and responsibility (not rights) within the parameters of

(i) the foundations, practice and policy of the criminal law and criminal justice

system of England and Wales; and (ii) understandings of multiculturalism within

the sociopolitical system of the United Kingdom in the twenty first century.

Throughout that analysis we have been mindful of justice as we have searched

for an answer to the question how should the criminal law of England and Wales

respond to the culture-responsibility relationship? The result of the analysis is a

renewed and specifically nuanced understanding of the culture-responsibility

relationship whose importance for contemporary justice has been established.

In general, we have advanced the hypothesis that the criminal law and criminal

justice system of England and Wales manifest the absence of a consistent and

coherent engagement with both culture and the culture-responsibility

relationship and we have tentatively offered some thoughts on that lack of

engagement. We have also identified a lack of engagement between the

criminal law and multicultural policy.

We have suggested that if multicultural policy evades law and law in turn

evades culture (even though culture is the basis for multiculturalism) then the

circle is not complete.

The broad aims of the thesis have thus been achieved and the purpose of this

Chapter is firstly to take the knowledge gained forward and into the practical

realm through the construction of a framework that suggests a way for the

criminal law and criminal justice system of England and Wales to engage

meaningfully with the culture-responsibility relationship (section 5.3) and

secondly to identify those matters that are important for justice in a

contemporary multicultural society and that need further consideration at a

theoretical, practical or policy level under the two broad headings of criminal law

and multicultural policy (section 5.4).

One of the most important things to come from the thesis is the distinction

between the culture-responsibility relationship and the ‘cultural defence’. This is

much more than a matter of semantics. However, the body of literature that has

built up over the last 25-30 years surrounding the ‘cultural defence’ has been

invaluable in allowing us to construct the understanding of the

cultureresponsibility relationship which we have reached here and is a wealthy

source for its ongoing development. The word ‘defence’ is used too loosely in

discourse and does not bear the scrutiny of legal analysis as its meaning is

situated on a spectrum from acquittal to mitigation in sentencing without any

relationship between culture and responsibility necessarily being established.

The cultureresponsibility relationship is a much stronger legal concept and

something that is workable in the practical realm. It harnesses strength not just

from its dislocation from the idea of a ‘defence’ but through its thoroughly

considered interpretations of both ‘culture’ and ‘responsibility’. We have given

both culture and responsibility fluid understandings with culture conceptualised

as a fuzzy complex whole derived from the historical interpretation and

adaptation by a group of a number of possible influential factors that an

individual may adopt. Responsibility is attributed to liberalism’s autonomous

individual whose capacity (as choice and fair opportunity) must be considered

but whose character, at least at the stage of establishing guilt or innocence,

must not be seen as either innately good or bad because in a multicultural

context this runs the risk of essentialising. In considering responsibility we are

aware of interests, ideas and influences outside of the individual that may have

a bearing on his responsibility. These broadly ‘relational accounts’ of

responsibility are particularly important in the context of culture but perhaps

currently less workable in the practical realm. Our understanding of

responsibility also broadens its meaning to be relevant to both decisions of guilt

or innocence and to the degree of responsibility attributed at the sentencing

stage. The culture-responsibility thus gains a sense of purpose from finding a

place within the criminal justice system.

A second overriding matter of importance to be established by this thesis is the

clear need for the culture-responsibility relationship to be included in the

criminal law and criminal justice system of England and Wales. The general

symbiosis between law and culture identified in section 2.4 fortifies this

argument along with the findings reported in Chapter 3. The aim of that Chapter

was to gather evidence to support the hypothesis that the culture-responsibility

relationship has not been duly considered in theory, practice and policy and to

reflect on the lack of engagement between the criminal law and culture more

generally. Several patterns were identified and detail is given in section 3.5.

These include, most notably,

• a greater engagement between criminal law and culture in the realm of

the ‘cultural offence’ than that of the culture-responsibility relationship.

• a greater engagement between criminal law and culture at the

sentencing stage than at the guilt stage.

• a lack of clarity about the treatment of ‘cultural evidence’ in court.

• an inconsistency in decisions on both guilt and sentencing.

• a general uncertainty about and reluctance to engage openly with

culture.

• gendered implications in the treatment of culture in the courtroom.

• statistics on conviction rates and appeal rates in cases involving culture

that that are at odds with the statistics in cases that do not involve

culture.

We examined the foundations of the criminal law to consider whether there is

any immanent structural or theoretical barrier to the accommodation of the

culture- responsibility relationship and found that, with political will, there is

space within the existing system. We have found multicultural policy to be

elusive and have noted the failure of successive governments to follow through

on seemingly empty policy statements. Whilst we can now identify integration as

a policy aim, the focus of the current government is on immigration rather than

post immigration settlement and on regulating undesirable practices. Central

government has abdicated responsibility for multicultural policy, relying on local

communities to provide integration strategies. Multicultural Policy emphasises

the immigrant rather than the migrant and is embedded in race relations. Most

of all the focus is on the prevention of terrorism. The emphasis is on rights

rather than responsibilities and groups rather than individuals. There is no

engagement between multicultural policy and the criminal law in general and

therefore it is no surprise to find that the culture-responsibility relationship has

not been considered at a policy level. There is evidence in the rhetoric of

commitment to

British values, the Rule of Law and the need for all to obey the law but this is,

once again, not followed through and there is no active exploration at policy

level about what these things actually mean. We concluded in section 4.5 that

the culture-responsibility relationship is capable of uniting policy and practice as

it can sit within a integration framework as both the basis of a right and a

responsibility, answering the call for a two way process in which immigrants are

‘socially included’ and enjoy equal treatment. A surprising finding is the bridge

that multicultural philosophy can provide between the practice of the criminal

law (in the form of the culture-responsibility relationship) and multicultural policy

because in section 4.4 we gain understanding into the complex relationship

between individual group and state and whilst we are concerned with the

individual we can see how his autonomy, his sense of self, is informed by those

outside of himself. The next section includes further thoughts on culture,

multiculturalism and justice.

5.2 Reflections on Culture, Multiculturalism and Justice

The thesis did not set out to adopt a postmodern approach to either culture or

the culture-responsibility relationship but the understanding of culture that we

arrived at in Chapter 2 has a distinctly postmodern aura. Postmodern

jurisprudence is attacked for its interpretivist approach to concepts perhaps

previously considered definitive and objectively understood. We have seen in

our own analysis of both culture and responsibility a reluctance to be

prescriptive and to favour instead a fluid interpretation of these concepts.

Another concept that can be subjected to the postmodern critique is that of

justice. Feldman argues that we understand justice as both a value and ‘an

inexhaustible drive’, the former informed by philosophical hermeneutics and the

latter by deconstruction. Throughout this search for an answer to the question,

how should the criminal law of England and Wales respond to the relationship

between culture and legal responsibility?, justice has been ephemerally present

and even though we have not attempted define it, we know innately that it is a

value to which we must aspire. Like culture, justice is socially understood and

yet we do not seek to undermine its value because it is not in some ways

tangible. Feldman argues that ‘…we are open to the meaning of justice, not

because our souls transcend culture but rather because we participate in our

communal traditions and culture.’ Justice is therefore understood from within

our own cultural standpoint. Perhaps that is why Rawls’s Theory of Justice has

been so enduring, because he asks us to find a just place for ourselves from

behind the veil of ignorance where we are supposedly, among other things, a-

cultural. We need the culture-responsibility relationship to feel ‘just’ and have

seen throughout this thesis the complex challenges in balancing competing

interests in the search for justice. We said at the outset that we wanted to avoid

what Norrie refers to as an anti-nomial approach. The multiple binaries that we

have confronted (male/female, insider/outsider, white/non-white

,individual/group, rights/responsibilities, agency/determinism, guilt/sentencing,

equality/inequality) have made this a challenge but have not undermined the

search for a just answer to the question at the heart of the thesis as the

culture-responsibility relationship has been considered in the widest possible

sense throughout and the suggested framework for a way forward is grounded

in theory, practice and policy.

In the realm of justice multiculturalism is challenged by the intersection of

culture and equality. Phillips writes, in Multiculturalism without Culture, of a

normative commitment to equality but also of support for multiculturalism and

women’s rights, achieved through dispensing with an essentialist understanding

of culture so that individuals from minority groups are left with agency. And at

times we see the absence of culture in multiculturalism because culture is

somehow inherently problematic. Perhaps that is why, in Chapter 3, we became

aware of a fear of culture within the courtroom, or at least of an uncertainty or

reluctance about how to engage with it. Culture, it seems, is only allowed into

the practice of the criminal law through the ‘back door’. This might be because it

is perceived as belonging to the other and something that others belong to.

These thoughts raise questions about the plausibility of culture as a concept in

the realm of justice. But culture is intrinsically present in law as we saw in the

three disparate cases outlined in section 1.1. It is as stated in section 2.2, what

makes us uniquely human and as Matravers points out, humans ‘…reflect on

their culture, criticize and revise it, add to it elements derived from others, even

replace it with another, but they cannot transcend or operate outside the realm

of culture altogether.’

And therefore the law, to be truly just, needs to embrace it.

Fuller states that law is ‘...the enterprise of subjecting human conduct to the

governance of rules’ but questions who is making these rules because for the

rules to stick there must be ‘an internal morality of the law.’ Fuller recognises in

this ‘hundreds of thousands’ of systems of law as clubs and associations the

world over make their rules which bind their members. But the ‘internal morality’

of state law is necessary too, with morality being given the meaning of

‘acceptability’. Magnarella says that the criminal law embodies the morality of

the politically dominant but again why should this be so if we live in a

multicultural world and if we recognise the need for dialogue? We need dialogue

to allow us to decide upon what is ‘acceptable’. Parekh sees multiculturalism as

a movement for justice rather than an uncritical celebration of all norms and the

cultureresponsibility relationship can play its part in that movement. Teubner

says that law has lost its identity in postmodern times, that it ‘…has surrendered

to new Gods: it is seen as a servant of economics, of utility, while we demand

that it should be a moral phenomenon.’ Multiculturalism needs to be one of

those gods.

Raz say that multiculturalism can be a ‘…normative precept motivated by

concern for the dignity and well-being of all human beings’ and a well-

considered cultureresponsibility relationship can also been viewed in this

positive light.

5.3 A Suggested Framework for the Culture-Responsibility Relationship

Matravers states that ‘…the moment at which the criminal law of a liberal state

is brought to bear on a person with a different cultural background from the

majorityseemingly in response to actions that implicate that background-can

create a certain anxiety in liberals.’ It is hoped that the analysis in the thesis and

the ensuing framework can go some way towards alleviating that anxiety. There

are a number of themes that have been identified throughout this thesis that are

insufficiently developed to be included in a practically based framework at this

stage. These are taken forward to section 5.4 as subjects for further research

and/or dialogue. The framework reflects the findings made throughout this

thesis. It reflects the current limits of the law as established in this thesis and is

therefore not radical but sensitive to the need to resonate with the political will

and aware of alienating its ability to be reasonably considered or of inducing

fear. It adheres, broadly, to the tenets of liberalism. It recognises the need for

strict standards through criminal norms and the limits of the orthodox criminal

law but balances these against extended perceptions of agency and moral

responsibility in the wake of multiculturalism. It attempts to reflect the delicate

balance between the need for equality and the need to accommodate the

individual from a different cultural background. It is, in the spirit of dialogue, a

starting point.

The framework is divided into (i) general recommendations; (ii)

recommendations relating to practice and policy; and (iii) recommendations

relating to substantive law.

General Recommendations

• The concept of the ‘cultural defence’ should be disregarded in discourse

about the relationship between culture and legal responsibility and its

place taken by the culture-responsibility relationship.

Practice and Policy

• Cultural evidence should be admitted to the courtroom. Renteln still

argues that cultural evidence should be allowed in all cases as a

‘procedural matter’ so that the judge should always consult an expert,

that is an anthropologist. This may not be necessary but the Judiciary

need to have clear guidance on when to consider culture. This could be

whenever a need to establish a relationship between culture and legal

responsibility arises. Cultural evidence should not be treated any

differently from other evidence but should fall within the ambit of the

Criminal Procedural Rules and experts on cultural evidence should be

subject to the same standards on reliability as other experts.

• We identified significant reference to culture in policy documents relating

to the Judiciary and a commitment to training the Judiciary in the

awareness of cultural difference. This commitment should be acted upon

so that the Judiciary is better equipped to deal with culture in both the

realm of procedure and the substantive law.

• The Sentencing Council should make clear what mitigating factors can

be taken into account in personal mitigation. Sentencing Guidelines

should therefore be amended to include specific guidance on where

culture might be relevant as a mitigating factor (and arguably as an

aggravating factor).

• Sentencing Remarks should be published in all cases at Crown Court

level and above involving a cultural dimension so that we can begin to

understand better the interaction between law and culture in the

courtroom.

Substantive Law

• There should be no further criminalisation of cultural practices. ‘Cultural

Offences’ can challenge the limits of the criminal law and criminalisation

theory and legislation aimed at preventing the harm in forced marriage

and FGM has not proved effective.

• There should be no distinct stand-alone ‘cultural defence’.

• The Judiciary should embrace the opportunity to consider the defence of

loss of control in the context of culture. Subjective understandings of a

litigant ‘in the circumstances of the defendant’ should be explored if the

situation calls for the court to consider whether there is, in any individual

case, a relationship between culture and legal responsibility.

• Capacity may be considered as bearing upon responsibility in findings of

guilt or innocence. It is vital that this should only be considered where the

defence raise the issue of capacity as relevant to a relationship between

culture and legal responsibility. Character should not be considered at

the stage of establishing guilt or innocence.

• Ortner’s ‘middle position’ in the cultural schema of determinism could be

adopted as an initial test for establishing the culture-responsibility

relationship in individual cases. The question that we cited in section 2.4

‘…did my culture, this assemblage of shared meanings and standards to

which I have become enculturated determine or influence my behaviour?’

could be put forward and tested as a model direction to juries in cases

where culture and responsibility meet.

• Both the capacity and the character of an individual should be relevant in

personal mitigation in sentencing.

Lernestedt says that ‘…my guess (or at least wish) is that in time what we now

label ‘cultural’ evidence in criminal law will be seen as a part of that coherent

whole’, that is the general law on personal responsibility. This framework is

perhaps the first step towards such a goal. It is by no means a perfect solution.

In applying this framework in practice it is clear that, for now, the sentencing

process will bear the burden of accommodating the culture-responsibility

relationship. This recognises Fletcher’s ‘mercy’ and whilst something about this

way forward feels perhaps a little disingenuous, in the final analysis for now at

least it may be that ‘…justice is to be done not through adherence to the Rule of

Law but through the sentencer’s discretion.’ Waldron says that ‘…allowing

cultural norms to change the terms of the criminal law in certain circumstances

for specific defendants from specific communities, would lead to unacceptable

contradictions, concerns about retroactive application, and mass confusion

among the public as to what constitutes criminal behaviour.’ But this is not what

the culture-responsibility relationship sets out to do. It is not cultural norms that

are changing the law from the outside but consensus arrived at, in the now,

through a culture-responsibility relationship grounded in the existing reality of

policy and practice of the criminal law and criminal justice system and, in the

future, through dialogue about the ongoing development of this framework. It is

not for ‘specific defendants from specific communities’ but for everyone- when

and where a relationship between culture and legal responsibility is established.

It does not pose the threat of mass confusion but rather seeks to bring

consistency to existing confusion. In time the culture-responsibility relationship

can become normalised within the criminal law and at that point we may be able

to adopt a more common sense and manifest approach but until it is established

we need clear (though negotiable) guidelines.

5.4 Matters to Take Forward

The framework for the culture-responsibility relationship suggested in section

5.3 is a starting point. It includes ten ways in which the criminal law can move

forward in a practical way to meet the needs of defendants from any

background where culture might be thought to have an effect on responsibility.

It is intended to reflect the limits of the law as they stand today. However, a

number of other matters have arisen in the course of the analysis undertaken in

this thesis. They are not recommended for inclusion in the framework because

they do not pertain directly to the development of the culture-responsibility

relationship, because they cannot be contained by it or because they involve a

significant shift in thinking about the values underpinning the criminal law. They

are nevertheless important for the ongoing and just development of the culture-

responsibility relationship or for justice generally in a multicultural world. We do

not want to forgot them and this list can be seen as a working agenda of

‘matters for further discussion’. Following the distinct parameters within which

this research has been carried out these are divided into matters of the criminal

law and matters of multicultural policy.

Criminal Law

• Norrie’s argument that motive is more central to human agency than

intention should be revisited. Much of Renteln’s work, being

nonjurisdiction specifc, is also focused on motive.

• Norrie’s moral contextualism should be revisited in terms firstly of

defining who is responsible for acts that contravene the law and secondly

in relying on retribution as the basis for punishment. As Norrie says ‘…

there is growing uncertainty as to the correct philosophical basis for

criminal law concepts and the growing challenge to orthodox subjectivism

as the dominant approach to criminal responsibility.’

• ‘Cultural offences’ need to be revisited. The concept of harm and the

question of what or who the criminal law is protecting needs to be

reconsidered in the context of a multicultural population. It seems to

defeat the purpose of legislation creating the offences of forced marriage

and FGM to allow culture in personal mitigation but if rehabilitation or

reform is a better punishment outcome than retribution (for example,

education and/or reform goals might be a more appropriate basis for

punishment in these cases) then perhaps it could be used in mitigation

to drive a more appropriate sentence. The low prosecution rates in cases

of forced marriage and FGM needs to be addressed.

• The concept of ‘honour’ needs to be revisited. The inherent reluctance of

the criminal law to include it in decisions both on guilt and in sentencing

needs to be clarified.

• Further research into outcomes in cases in the criminal justice system

involving a cultural dimension needs to be carried out. This picks up the

findings of the Lammy Report and the perception of an endemic cultural

bias in the legal system.

Multicultural Policy

In section 4.2 we identified a number of perceptions surrounding multicultural

policy that were subsequently borne out in the analysis of multicultural policy

undertaken in section 4.3. The culture-responsibility relationship can be seen as

a positive mechanism for redressing, in part, some of these negative

perceptions. We need to be mindful of elevating the purpose of the culture-

responsibility relationship to the level of policy because we must remember that

it is, in essence, simply a mechanism for establishing true blameworthiness at

the individual level but in situating it within these perceptions it can be taken

forward for discussion and dialogue in the wider realm. The themes are as

follows:-

• A clear statement of current multicultural policy would be enormously

beneficial. Generally we need much more transparency in these

matters.

• Consideration should be given to what is meant by the Rights and

Responsibilities of Citizens’ and to phrases such as the ‘need to obey

the law’ and ‘adherence’ to the Rule of Law in the context of the

multicultural citizen and the culture-responsibility relationship. •

‘Multicultural policy’ should focus on settlement after arrival in the

United Kingdom. The ability of the culture-responsibility to assist in

that settlement should be considered.

• There has been opposition to ‘multiculturalist policy’. This can be

because it has in general been seen to be created by policy elites

rather than by popular demand. Therefore ‘…ordinary people have

often seen such programmes as elitist impositions that have made

their lives more difficult in times that are difficult already.’ Dialogue is a

way to circumvent this perception. There have been strong arguments

for dialogue both from academia (Tully, for example) and policy

(Cantle’s intercultural dialogue and Parekh’s focus on dialogue

bridges the two domains.

• If the development of the law and legal theory depends on empirical

socio-legal research to keep it grounded then empirical legal research

and dialogue can perhaps be combined.

• A broad dialogue/research about the concept of culture in the legal

domain would be hugely helpful in enhancing understanding of culture

and understanding the law’s reluctance to engage fully with it. This

could extend to debate around the possibility of culture being a

protected characteristic for the purposes of the Equality Act.

All of these matters- law, culture, multiculturalism, the culture-responsibility

relationship- need to be taken forward and considered as a joined up whole,

with a concrete framework such as that suggested here as a starting point from

which meaningful dialogue and further research can begin. As Rosen says ‘…

legal scholars often approach the patterns of social and cultural life either as

intrinsically interesting but not directly germane to the course of actual legal

decision making or in need of being distinct from law.’17 This can no longer be so

because ’…it is by moving back and forth across the analytic line that separates

law from culture that we can perhaps best see how problems raised in each

domain find their response not within their own confines alone but within the

ambit of both- how the determination of facts depends upon the concepts by

which mind and act are categorised in ordinary discourse or how the conceptual

framework of legitimate authority is shaped by its judicial articulation.’18

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