When I qualified for the Bar in 1982 a phrase often heard in the robing room and from the Bench was that justice in England and Wales was ‘colour blind’. Raising the issue of disproportionate sentencing for African, Caribbean women with the late His Honour Judge Babington at Knightsbridge Crown Court, I managed to engage with one of the very few judges who had been held captive as a prisoner of war of the Japanese in the Second World War. To the astonishment of my far more senior colleagues at the Bar, and probably because of his personal experience, he listened to my arguments from a NACRO report that black women were far more likely to receive an immediate custodial sentence than their white female counterparts for shoplifting convictions and imposed a non custodial sentence after several adjournments. Sadly those statistics for black women still hold true 30 years later.
The Lammy Review, an independent review into the treatment of, and outcomes for, black and minority ethnic (BAME) individuals in the criminal justicesystem, was published in September. It makes shocking reading for anyone who is ignorant of the criminal justice system. It’s particularly depressing for those that have been working to eradicate the racial disparity in the criminal justice system for the last three decades.
The statistics are stark: in the Crown court BAME defendants are 240% more likely than their white counterparts to receive a custodial sentence for drugs offences. While only 14% of the general population, BAME men make up over 25% of the prison population, with 40% of young prisoners under 21 being BAME young men. Drilling down into the ethnicity is more disturbing, with only 3% of the adult population African Caribbean, but 12% of the prison population and 20% of all children in custody African Caribbean. Roma children, often omitted from statistical analysis, represent 12% of children held in secure training centres and the Muslim prison population has risen from 9,800 to 13,200 in less than a decade. HMP Belmarsh holds so many Muslim prisoners it is commonly known on the street as ‘Isis’.
As David Lammy MP eloquently put it, the failure to tackle racial disparity in the justice system has both a human and an economic cost:
‘These disproportionate numbers represent wasted lives, a source of anger and mistrust, and a significant cost to the taxpayer. The economic cost of BAME over representation in our courts, prison and probation service is estimated to be over £309m a year.’
Irrationality of bias and its broader effect
On a personal level, race and sex discrimination still confronting prospective BAME lawyers, judges and magistrates cannot be divorced from the unequal treatment BAME communities experience when facing the criminal courts. Of around 3,000 court judges, 7% are from BAME backgrounds. There is no shortage of BAME lawyers who apply for judicial office but ‘in virtually every recent recruitment round, BAME applicants have been recommended for positions at lower rates than they applied’ (Lammy Review, Ch 4: Courts, Table 4). The logic is simple. If the irrationality of bias still affects the experience, recruitment and promotion of BAME lawyers, judges and magistrates it is inevitable the same bias will affect the sentencing and bail decisions of those same ethnic groups. Whether unconscious or not, the outcome is exactly the same. The historical context of the Lammy Review findings have to be understood by a new generation who may have believed that race was yesterday’s news and had disappeared with the plethora of equal opportunities statements. If anything, the problem is more acute, as confronting race and sex discrimination has become a tick-box exercise.
There is an extremely strong case for recognising, and having to overcome, that exactly the same bias can affect the decisions of every civil court and tribunal, from the family courts to the immigration tribunal through to the appeal court itself. Sadly, a keen legal ability and high intellect, or even frequent contact with BAME communities, and ethnicity itself, are no protection against basic human traits and can act as a barrier to self-examination.
Three decades pre-Lammy Review
Most of my African, Caribbean and Asian contemporaries were the first generation of those born and brought up in the UK with the Alf Garnet and racist stereotypes that abounded on television. By 1979 the Royal Commission on Legal Services found that racial discrimination was directly affecting the ability of BAME communities to enter the legal profession. The setting up of the Bar’s Race Relations Committee followed shortly, with an overwhelming majority of the BAME Bar concentrated in so-called ‘ghetto sets’. The majority of chambers had no BAME barristers, clerks or staff, so virtually the only contact enjoyed by white barristers and solicitors with African, Caribbean and Asian people was as defendants or social welfare clients.
The racial classification used by the police of IC1, IC2 and IC3 had its origins in the colonial system of racial classification used throughout the British Empire and adapted for the South African apartheid government. The much denigrated ‘sus’ law, deployed to harass members of the African Caribbean community, simplify codified an underlying racist perception, especially of African Caribbean communities, and resulted in a common understanding that racism in the police led to a disproportionate rate of stop and search persisting to this day.
The huge inequalities in housing, employment, immigration, health and education that developed in post-war Britain made it virtually inevitable that the criminal justice system would replicate those endemic levels of racism that existed within British society. In 1982 there were no African Caribbean judges, just a handful of BAME magistrates, and not a single BAME Member of Parliament. The explosion on the streets of Liverpool, Bristol, Birmingham and London led to the realisation in the Inquiry by Lord Scarman that Britain’s BAME community could not continue to be excluded as if it were some colonial throwback given temporary immigration status.
Even more disturbing is the fact, reported in the Lammy Review, that the proportion of BAME prisoners in the UK has now outstripped the United States with its history of slavery and segregation. Black people make up 3% of the general population and 12% of the prison population in England and Wales compared to 13% and 35% respectively, in the US. With these statistics in mind, claims that the English legal system is the envy of the world ring hollow.
By 1988, the Judicial Studies Board (JSB) still resisted the necessity of race training to close the gap in achieving equal treatment in criminal courts. A two-year campaign by BAME organisations and the National Association of Probation Officers collated racist comments made by members of the full-time judiciary, such as ‘N in the woodpile’ and ‘Murderous Sihk’, which were just the tip of the iceberg. Racist comments in the jury room often went unchallenged, and even the European Court of Justice in Gregory v United Kingdom (1997) ECHR was reluctant to interfere with the thought of an overwhelming white, male judiciary failing to tackle racism.
The government of the day eventually conceded that no democracy can operate with any semblance of credibility if it tolerates or condones the persistent unequal treatment of some of its citizens, simply based on the colour of their skin. Parliament passed s 95 of the Criminal Justice Act 1991 which, although it fell far short of what BAME supporters wished to see, did result in the annual publication on statistics of race and gender by the Home Office. The Lord Chancellor, the late Lord Taylor of Gosforth, led the introduction of ground-breaking residential weekend training for over 1,650 members of full-time and part-time judiciary led by the work of Sir Henry Brookes and senior civil servant, Barbadian Trevor Hall. The formation of the Ethnic Minorities Advisory Committee of the JSB delivered the training, recruiting over 300 volunteer members of BAME communities to meet judges in a social environment and challenge their basic perceptions, followed by a day that challenged personal bias and racism head on.
The culture shift was reinforced by the murder of Stephen Lawrence and the introduction of racially aggravated offences in the Crime and Disorder Act of 1998. The study by Dr Roger Hood of over 3,000 defendants in Walsall and Wolverhampton Crown Court in 1992 by the Commission of Racial Equality underlined the need for positive action. Part of the compromise was that High Court judges were all excluded from such training as that their intellect and seniority meant they were above the need for such obvious issues of fairness and justice. That was a mistake.
The Lammy Review is therefore the last in a long line of reports, training and initiatives designed to alter the treatment and outcome of a criminal justice system. As the late Johnnie Cochrane commented when he visited the UK in 1995, ‘Justice is not colour blind, nor is it equal.’ Over the last 20 years the situation has deteriorated under successive governments as the culture has proved resistant to change. Training has become focused on tick-box exercises, more concerned with the sensitivities of judges and magistrates than the outcomes and consequences of those on the receiving end of differential treatment.
Significant signpost; effective action required
The Lammy Review is probably the most significant signpost to the creation of an equal and just system since the Stephen Lawrence Inquiry demonstrated the huge human and societal cost of racism played out in the police and many other institutions. We must recognise that this is not an insoluble problem but that it does require persistent and uncomfortable truths being confronted.
In any democracy, it is not simply sufficient to say sentencing and bail decisions must be free from race or any other unlawful bias that must be demonstrably so. For instance, automatic deportation decisions are triggered by a sentence of imprisonment of 12 months or more. If the objective evidence is that African, Caribbean, Arab or other ethnic groups are far more likely to receive a longer custodial sentence than an offender from Australia or the US then the whole of the presumption for deportation is undermined.
The solutions are as they were outlined in 1992, and are added to by the knowledge gained during this thorough 18-month review. Monitoring of each Crown court and magistrates’ court is essential to address not only regional, but racial and sex discrimination disparity. We do this as regards all forms of adjournments for the purposes of saving costs. As Lammy recommends, detailed monitoring must become the norm, published annually for each court centre and corrective action taken if necessary, as for failing schools or hospitals. My personal recommendation goes further in that individual judges or magistrates with a persistent record of differential treatment must be subject to mandatory training and in the worst-case scenario be suspended from sitting until this occurs. On the other hand, a good record of equal treatment and proaction on diversity should be rewarded by providing strong evidence for career advancement.
My view is that the buddy system, established informally in 1995, should be formalised and BAME community members, who have the skills and ability to engage with judges and magistrates, should meet with them every month to discuss race and sex bias. The weight of academic evidence suggests that traditional race training on bias wears off very quickly unless continually re-enforced by direct personal contact that challenges but educates decision-makers’ skill set. It does not interfere with judicial independence but would make decision-makers consider where bias has been likely to affect outcomes.
Although not mentioned by the Lammy Review, the Sentencing Guidelines Council, itself unrepresentative of the diversity of those on the receiving end of criminal justice decisions, should weave a race, sex and social status requirement into each guidance it issues to eradicate disproportionate sentencing. Sentencers must be aware of the fact that African Caribbean defendants are far more likely to be perceived to be culpable in playing a leading role in offences of violence and a higher risk of recidivism than white counterparts. The necessity of equal treatment must be repeated in every piece of sentencing and bail guidance; not as a tick-box exercise but as a definitive challenge to decision-makers to consider what is being done and why.
The speedy introduction of the US government’s RRI, relative rate index, has been used effectively by the Department of Juvenile and Preventative Justice to isolate the effect of decision-making in terms of disproportionality at each stage of the CJS. There is no reason why such monitoring should not be introduced here and drill down to each court centre. The other significant recommendation is the need for early intervention to counter the distrust that leads to many BAME defendants not pleading guilty at an early stage. The successful West Midlands pilot scheme, Operation Turning Point, which offered defendants with only one conviction an alternative to prosecution is one of the innovative measures which needs to be extended countrywide to reduce disproportionality.
Lammy is absolutely right to point out that his recommendations will indirectly benefit many white working class inmates. It has always been a fallacy that racial equality only harms those who directly suffer. The effects of racial disparity and inequality have many victims including those who purport to sit in judgment over others.
The test is whether the Home Secretary, new Lord Chief Justice, Sentencing Guidelines Council, indeed every judge and magistrate, possess the willingness to take effective action. The swift establishment by the Home Secretary and LCJ of an implementation task force is required to ensure this is not just another report on race and disparity that is allowed to gather dust. The consequences of doing nothing or engaging in a cosmetic exercise in this post-Brexit world of terrorism and xenophobia will affect us all.
Contributor Peter Herbert OBE is Chair of the Society of Black Lawyers: www.societyofblacklawyers.co.uk
1: A cross-criminal justice system (CJS) approach should be agreed to record data on ethnicity.
2: Government should match rigorous US standards for analysis of ethnicity and the CJS.
3: Ministry of Justice (MoJ) and CJS agencies should publish all datasets held on ethnicity, while protecting privacy.
4: CJS agencies should provide evidence-based explanation for apparent disparities between ethnic groups.
5: The review of Trident Matrix by Mayor of London should examine how information is gathered, verified, stored and shared, with specific reference to BAME disproportionality.
6: The CPS should take the opportunity, while it reworks its guidance on Joint Enterprise, to consider its approach to gang prosecutions in general.
7: CPS should examine how Modern Slavery legislation can be used to its fullest, to protect the public and prevent exploitation.
8: Where practical, all identifying information should be redacted from case information passed to CPS by the police, allowing them to make race-blind decisions.
9: Home Office, MoJ and Legal Aid Agency should work with Law Society and Bar Council to experiment with different approaches to explaining legal rights and options to defendants.
10: ‘Deferred prosecution’ model in Operation Turning Point rolled out for both adult and youth offenders.
11: MoJ to address key data gaps in the magistrates’ court including pleas and remand decisions.
12: Open Justice initiative should be extended so it is possible to view sentences for individual offences at individual courts, broken down by demographics, including gender and ethnicity.
13: All sentencing remarks in Crown Court should be published in audio and/or written form.
14: Judiciary should work with Her Majesty’s Courts and Tribunals Service (HMCTS) to establish system of online feedback on how judges conduct cases.
15: Organisation eg Judicial Training College or Judicial Appointments Commission should take on role of a modern recruitment function for the judiciary, involving talent-spotting, pre-application support and coaching for ‘near miss’ candidates.
16: Government should set a clear, national target to achieve a representative judiciary and magistracy by 2025 and report biennially to Parliament.
17: MoJ and Department of Health (DH) should develop a method to assess maturity of offenders entering the justice system up to age of 21.
18: Youth Offender Panels should be renamed Local Justice Panels, take place in community settings, with stronger emphasis on parenting, involve selected community members and have power to hold other local services to account for their role in rehabilitation.
19: Magistrates should follow an agreed number of cases in the youth justice system from start to finish, to deepen understanding of how rehabilitation process works.
20: Leaders of institutions in the youth estate should review data generated by the Comprehensive Health Assessment Tool (CHAT) and evaluate efficacy.
21: The prison system, working with the DH, should learn from the youth justice system and adopt a similar model to CHAT for men and women prisoners with built-in evaluation.
22: The recent prisons white paper sets out new data to be collected and published in the future; this should include a full breakdown by ethnicity.
23: MoJ and the Parole Board should report on proportion of prisoners released by offence and ethnicity.
24: To increase fairness and effectiveness of the Incentives and Earned Privileges system, each prison governor should ensure that there is forum in their institution for both officers and prisoners to review fairness and effectiveness.
25: Prison governors should ensure Use of Force Committees are not ethnically homogeneous and involve at least one individual with an explicit remit to consider the interests of prisoners.
26: Her Majesty’s Prison and Probation Service (HMPPS) should clarify publicly that the proper standard of proof for assessing complaints is ‘the balance of probabilities’.
27: Prisons should adopt a ‘problem-solving’ approach to dealing with complaints.
28: The prison system should be expected to recruit in similar proportions to the country as a whole.
29: Prison service should set public targets for moving a cadre of BAME staff into leadership positions over the next five years.
30: HMPPS should develop performance indicators for prisons that aim for equality of treatment and of outcomes for BAME and White prisoners.
31:: MoJ should bring together a working group to discuss barriers to more effective sub-contracting by Community Rehabilitation Companies (CRCs). 32: MoJ should specify in detail the data CRCs should collect and publish covering protected characteristics.
33: Youth Justice Board should commission and publish a full evaluation of what has been learned from the trial of its ‘disproportionality toolkit’, and identify potential actions or interventions.
34: Our CJS should learn from the system for sealing criminal records employed in many US states.
35: To ensure the public understands the case for reform of the criminal records regime, MoJ, HMRC and DWP should commission and publish a study indicating the costs of unemployment among ex-offenders.