Colour-blind justice? – a long-awaited report by David Lammy MP on race and the criminal justice system released this month concludes it discriminates against black, Asian and minority ethnic people.
We already knew that. The disproportionality in outcome between different ethnic groups has been known of and remarked on for as long as I can remember. Nothing has been done.
Young black people are nine times more likely to be locked up in England and Wales than their white peers,
This report delivers some recommendations on how to fix this, some better than others. (See this Summary in the Law Soc Gazette)
The report also noted that because black defendants distrust the system, they tend to plead not guilty in court – disqualifying themselves from the reduced sentences that can come with an early guilty plea. Lammy calls for deferred prosecutions where suspects can have charges dropped by completing rehabilitation; basing criminal responsibility on a suspect’s maturity rather than age; and wiping the slate clean earlier for young offenders who rehabilitate, so they can get on with finding employment. Lammy, writing in the Guardian, calls for urgent action to implement his recommendations which require political support and legislative action.
But what can lawyers do within the system to combat the ongoing systemic imbalance? The discrimination which underlies these stark statistics is institutionalised, but covert, and as it is never openly expressed remains unchallenged.
We all know what the problem is, but no idea what to do about it.
Imagine for example a 15 year old Somali of good character at a police station, who makes admissions on advisement to public disorder on a train and is in possession of a pair of scissors. Instead of receiving as anticipated a “caution” or referral to triage for YOT intervention, he is reported for summons and will have to attend Court.
Based on experience of recent cases of similar gravamen but with white suspects that resulted in non-Court disposals, the representative cannot but help think race has played a part in the decision making process. There is of course no direct proof, other than the statistics. What do they do?
Or imagine you are now representing the same youth at Court, the original lawyer having become professionally embarrassed with the client now denying the offence saying he only made admissions for the caution that never happened.
An application for adjournment to make representations is of course refused. The case is now listed for trial.
The evidence appears strong, with a white female adult as the Prosecution witness, but the client has raised a defence and the case could go either way. You are before a bench.
You know the statistics suggest the client more likely to be convicted than a white counterpart, but feel uncomfortable referring to those stats because of the implicit suggestion to the bench of race bias.
What do you do?
These are but two examples of the types of problem routinely encountered but largely ignored.
Usually, the answer do the question “what do we do” is “nothing”.
We need new answers.
There is already a “trust deficit”. To win back trust, we need to deserve that trust. #WeMustNotStaySilent
We have to talk about the D word. We have to learn to speak up about discrimination. We have to challenge the Police and the Prosecution about their charging decisions, and we need to raise it in Court. The Magistrates need to hear it, and our clients need to hear us raise it, and hear it acknowledged.
We have become complicit in an unfair Justice system.
To stay silent is no longer good enough.