Those baffled by why the unlawful killing of George Floyd in Minneapolis should lead to the drowning of a slaver’s statute in Bristol have clearly not been paying attention. But even if the previous protests and fury at individual injustices in this country did not make it to particular British breakfast tables, the warning was there for all to see, and it was there in the careful language of Government.
Almost three years ago, David Lammy’s review of the criminal justice system brought together the abundant evidence that clearly demonstrates that BAME individuals are over-represented in the criminal justice system of England and Wales. The Lammy review went into painstaking detail about the full breadth of the wounding racial disparities in our justice system. The Lammy review, of course, recognised that many of the causes of BAME over-representation “start long before a young man or woman ever enters a plea decision, goes before a magistrate or serves a prison sentence.”
Yet the review was clear that the complex web of institutions, laws, and people that form our criminal justice system, have biases which themselves deepen these pre-existing disparities. Take, for example, how we police, prosecute and sentence cannabis offences. Despite surveys showing that there is no racial disparity in the prevalence of cannabis use, it is clear that the policing of it, and the subsequent convictions and sentencing of it, treats BAME individuals much more harshly than similar white individuals.
For our own part at the Centre, our focus on tackling racial disparity in the criminal justice system has primarily been to strengthen and expand the use of pre-court diversion for low level offences, a key recommendation of the Lammy review. Pre-dating the Lammy review, we saw that helping police forces, youth offending services and other agencies implement effective pre-court diversion schemes, which seek to de-escalate individual’s contact with the criminal justice system, had a role to play in ameliorating unmerited disparities and delivering better outcomes. Our assistance to the Government’s Choice to Change diversion pilots and our much wider work has played important role in ensuring that 33 police forces have a pre-court diversion scheme for adults and that the vast majority of local authority areas have one for under 18s. Moreover, in our forthcoming research, we have been looking at improvements that can be made to the youth courts, an area which the Lammy Review labelled as possibly the biggest concern in England and Wales.
There is clearly more we can do. We know that disparities that start accumulate into larger disparities downstream. This is why we are undertaking a research project to explore disproportionality in youth diversion. This will explore the impact of race and ethnicity on children and young people’s access to and engagement with youth diversion. We continue to seek to work with practitioners to change how the system operates for all, under the hope that fairer hearings in youth court and more active diversion of cases from court will benefit everyone, but in particular BAME individuals.
Yet the Lammy review was always faced with an uphill struggle in turning its recommendations into fundamental reforms that picked up their own momentum. Our own research prior to the Lammy Review found that when Governments in different jurisdictions had commissioned reviews into racial disparity, these inquiries “succeeded in consciousness raising” but that “…(p)redictably, the government responses, and action plans that stem from these reviews, often attract criticism for failing to implement recommendations at all or as intended.”
And that is what we have seen. When looking at the Government’s response to the Lammy review, the activity generated has clearly been subject to the type of bureaucratic compliance that comes when hard pressed officials are asked to deliver defensible changes but not tasked with fundamental reform. This is not, in retrospect, surprising. The Lammy review was Cameron’s review, and he was out of office before it reported. Despite Theresa May’s stated commitment to “tackle burning injustices”, her domestic agenda was swallowed whole by Brexit. And the current administration was no sooner in office than covid-19 came round the corner.
So, it may well be that the moment provided by the Black Lives Matter demonstrations is just the time to gather a new head of steam to heal the injuries of racial injustice. But the crucial question is what reforms do we need? And that’s the hardest question of all. For example, we know that many of the practices and policies that accentuate disparities are caused by how and who we police. Our own work acknowledges that— its why we seek to ameliorate these impacts as soon as possible following an arrest.
But thinking about the reform of policing is an area where international borrowing becomes fraught. Solutions for the American situation are not necessarily solutions for ours, as our institutions and practices have their own culture, their own history and their own sensibilities. It’s clear, for example, that the recommendations of the 2015 Obama Policing taskforce that “Law enforcement culture should embrace a guardian—rather than a warrior— mind-set to build trust and legitimacy” is a response to the disgraceful over-militarisation of police, which is itself a response to a uniquely American addiction to guns. In 2016, the Guardian estimated there were 1,011 people killed in police shootings in the US. In that same year, the number of fatal police shootings in England and Wales was 4. According to the Economist, between 2000 and 2014, 2,445 US police officers were killed on active duty, compared to just 25 in the UK. The reckless over-armament of both the people and the police in the US has little to inform the British experience.
But nonetheless there are ways to build trust in our justice institutions which we know do apply across jurisdictions. For example, the Government’s own research, following the Lammy review, points to the need to humanise our justice system, in order to build trust— “Efforts by staff to humanise themselves make it easier for people to connect with them… Admitting fault and saying ‘sorry’ where it is applicable – for example, when nothing has been found after a ‘Stop & Search’.” We know people will trust a process if it uses clear, accessible and understandable language about what it has done, what it will do and what the options for citizens are. This means explaining in simple terms what is happening, why, and what to expect next. Government research shows that “slowing down decision-making reduces the likelihood of people making instinctive, biased judgements, which can result in unequal outcomes that breed mistrust.” Yet, our court reforms are at the moment obsessed about speeding up court cases, not just in terms of the overall time they take from start to end but also in squeezing in more hearings per sittings. If we really want to build trust, it may require politicians to demand that HMCTS abandon its desire to squeeze more and more hearings into fewer and fewer courthouses.
But, as hard as adopting these more human centred approaches might be for justice professionals, working as they do in environments which tend towards the impersonal and administrative, we also need to recognise that institutional reform involves larger political choices. For example, rethinking our attitude to the prohibition of drugs requires political will. The experiments internationally with de-criminalising marijuana suggest that it no panacea but, nonetheless, it has the potential to change what we choose to police and criminalise, which itself has ramifications for racial disparity. Rethinking the orientation of the criminal justice system away from a catch, convict and sentence mentality requires rethinking and new experimentation in public health models of law enforcement and prevention. This includes models of policing which are more situated within a wider web of social service provision, and models of ‘court’ where the focus is on a more problem-solving approach involving restorative, and transformative justice responses, rather than purely a focus on case disposals. The announcement in the Conservative manifesto for a criminal justice Royal Commission is just such an opportunity to rethink these models in a deliberative and transparent way.
The Black Lives Matters protests ask us all to challenge what seems settled about the way we ‘do’ justice in the UK. It challenges us all not just to critique and argue, but actually work together to change things. A communal commitment to change is the key to binding up the wounds of racial injustice. Real solutions are never likely to be found in reviews, research and programmes of work, if there is a wider absence of compassion and hope. It will only be when we have inculcated what Bobby Kennedy called a “leadership of humane purpose” in our own hearts, and in the hearts of our institutions, that we will succeed. The challenge is whether we can take this moment to have the political will, the common purpose and the moral fortitude to work harder to bind up the wounds among us.
If you enjoyed this blog, please see our Building Trust report, which looked at how our courts can improve the criminal court experience for Black, Asian, and Minority Ethnic defendants. To keep up to date with our work please follow us on Twitter and LinkedIn, and subscribe to our newsletters (we have a general newsletter as well as ones covering diversion, family justice and court innovation).