It is often said that justice should be blind, by which it is meant that decisions should be made without prejudice based on physical characteristics such as apparent age, sex or membership of a particular race or ethnic group. This should be the very bare minimum expectation of a civilised justice system, though in many cases there may be compelling reasons to go beyond the mere expectation of an absence of prejudice, and demand that the courts positively take into account the different experiences of certain communities in tailoring the appropriate criminal justice response, in order to truly do justice to difference.
How fair are our criminal courts when it comes to dealing fairly with parties from black and minority ethnic backgrounds? The Lammy Review found that jury verdicts after criminal trials appear to be genuinely colour-blind, but a less clear picture emerged regarding magistrates’ verdicts, which appeared on the face of the statistics to display racial disparity in some areas. In particular BAME women tried in the magistrates’ court were more likely than their white female counterparts to be convicted of an offence. Given that magistrates already deal with around 97% of all criminal cases (albeit at the lower end of case seriousness) it is imperative that efforts be made to ensure the magistrates court is, and is seen to be, representative of the communities it serves and scrupulously fair.
It is particularly concerning that the government and senior judiciary have been seriously considering curtailing the ancient right to jury trial, in favour of trial by judge and magistrates alone in some circumstances[1] on the pretext that this is necessary to deal with the woeful backlog of criminal cases. The government claims this backlog has been caused by the covid-19 outbreak, but in fact in large part it pre-dates the pandemic and is rather a result of decades of austerity cuts and chronic under-funding (the Lord Chancellor recently admitted in a BBC interview that the pre-coronavirus criminal case backlog stood at 39,000[2]).
In terms of the sentences handed out by the Crown Court (which deals with more serious criminal offences and for which better data exists) the Lammy Review found, based on a 2016 Ministry of Justice study, that “for offenders convicted of recordable, indictable offences in 2015, there was an association between ethnicity and being sentenced to prison. Under similar criminal circumstances the odds of imprisonment for offenders from self-reported Black, Asian, and Chinese or other backgrounds were higher than for offenders from self-reported White backgrounds. Whilst statistically significant, the increases in the odds of imprisonment were 53%, 55%, and 81% higher, respectively, for offenders self-reporting as Black, Asian, and Chinese or other)… Within drug offences, the odds of receiving a prison sentence were around 240% higher for BAME offenders, compared to White offenders.”
In other words, BAME offenders are more likely than their white counterparts to be sent to prison, and in the case of drug offences, several times more likely.
Regarding judicial diversity, the Lammy Review found that “Of those who declared their ethnicity, 20% of defendants who appeared in court last year were from BAME backgrounds, compared with 11% of magistrates. Meanwhile, just 7% of judges are from BAME backgrounds. On average, younger cohorts of judges are more diverse – 10% of those under 40 are BAME compared with 4% of those 60 and over – but even this younger group remains significantly less diverse than the country it serves.
As with trust in the police, Lammy also found a trust deficit existed between BAME defendants at court and the other actors in the CJS (including the lawyers and the judges) perhaps not surprising in light of the apparent racial disparity in sentencing outcomes and the lack of proportionate representation of BAME people in the judiciary. This trust deficit, whilst deeply concerning of itself, has concrete implications. One such implication relates to the issue of guilty pleas. A guilty plea entered at a reasonably early stage in the criminal process will lead to a reduction in sentence of one third compared with the sentence which would have been handed down after a trial, and this ‘discount’ can and does have the effect of changing the nature of the sentence imposed (e.g. a defendant who would be sentenced to immediate imprisonment after a trial can received a community-based sentence on an early guilty plea). To quote the Lammy Review again:
“Plea decisions can make a critical difference to the way defendants are treated by the justice system – but there is a stark difference between BAME and White defendants. Several studies have found that BAME defendants are less likely to enter guilty pleas. The pattern can be found in studies conducted two decades ago as well as at the turn of this decade. The finding is repeated in [an] analysis of 2014/15 data conducted for this review. It found that Black and Asian men were more than one and a half times more likely to enter a ‘not guilty’ plea than White men. Mixed ethnic men were also more likely to plead not guilty…”
The Lammy review found that a lack of trust in the justice system is at the heart of this problem. In common with that review, we recommend below that the government and legal professions must innovate to find ways of rebuilding trust in the system amongst BAME individuals (starting with increasing the representation of BAME people amongst the judiciary and magistracy) and in the meantime must also find new ways to ensure BAME defendants are not deprived of the benefit of the guilty plea discount which is enjoyed by white defendants.
[1] For a short film summarising the objection to these proposals see https://www.channel4.com/news/the-secret-barrister-justice-in-a-pandemic
[2] https://twitter.com/BarristerSecret/status/1274002884359831552