How should we respond to racial bias and stereotypes in the criminal justice system?

The problem has to be confronted from more than one direction, writes bar student Jalal Chohan

At the death of George Floyd, the world stood in silence and solidarity. Social media plunged into darkness. The scorn of racial injustice confronted us once again. Every few decades a prodigious three-word slogan is born, protests erupt, and leaders rise to the challenge of addressing racial inequality. There is no doubt that we have come a long way but still, not quite far enough.

“No free man shall be seized or imprisoned […] except by the lawful judgement of his equals or by the law of the land.”

Article 39 — Magna Carta, 1215

The Magna Carta although intended for English nobility paved the way for our current laws on human rights and equality. Almost a thousand years on and the social landscape of the United Kingdom has changed tremendously and despite our achievements, several challenges are yet to be overcome. Laws have been passed, reports written, and commissions established yet the idea of utopian equality remains out of reach.

The problem

The purpose of the Criminal Justice Act 1991 is to “avoid discriminating against any persons on the grounds of race, sex or any other improper ground” and since its passage successive governments have published data on ethnicity and the criminal justice system.

In 2017 David Lammy MP published the Lammy Review, an independent review of the treatment of, and outcomes for, Black, Asian, and Minority Ethnic (BAME) individuals in the criminal justice system.

The Lammy Review found evidence of bias and discrimination against people from ethnic minority backgrounds in the justice system in England and Wales.

In 2019 a Black person was 4.3 times more likely to be stopped and searched, over three times more likely to be arrested, three times more likely to be prosecuted, 2.8 times more likely to be convicted and 3.3 times more likely to be given a custodial sentence than a White person.

Statistics and facts from the police

The Lammy Review found: “In particular, Black men were more than three times more likely to be arrested than White men, whilst Black women and Black boys were also significantly more likely to be arrested than White women and boys” and “those from BAME groups were three times as likely to be stopped and searched as those who are White. In particular, those who are Black were over six times more likely to be stopped.”

Consequently, cases progressed through the police, CPS, courts and prison system are skewed unevenly from the first stage of the process — with the police. The alarming stop and search statistics and arrest rates around the UK have been apparent for years and the improvement of trust in the criminal justice system requires change at the stage of police investigation.

Black people are clearly pursued more by the police than their White counterparts. This leads naturally to more arrests, more convictions and more custodial sentences.

A solution to the problem is to scrutinise the apparent over-policing of BAME communities. The Independent Office for Police Conduct which oversees the police complaints system in England and Wales has pledged to launch “race discrimination as a thematic area of focus to establish the trends and patterns which might help drive real change in policing practice”.

Currently the majority of complaints about the police are dealt with by the police force itself. The IOPC intends to investigate more cases where police forces are alleged to victimise BAME people but the IOPC will not be able to independently assess the nearly 32,000 complaints a year. These complaints should be dealt with independently to effectively discourage discriminatory practices and ensure accountability.

Another proposed solution to the problem was a more diverse and representative police force. In 1999 the Stephen Lawrence Inquiry (also known as the Macpherson Report) was published. It set targets for police forces around the UK to have the same proportion of BAME officers in their ranks as the communities they serve. Over two decades later the police is nowhere near reaching those targets and BAME people remain underrepresented in the police force.

Statistics and facts on sentencing profiling and the legal profession

More than 13% of the general population in the United Kingdom identify as being from a BAME background, yet BAME people account for a quarter of our prison population (Lammy Review, 2017). There are several reasons for this; one of which is the often-reported lack of trust BAME people have for the judiciary.

Only 8% of judges in the UK are of a BAME background, and with a BAME population of around 13% in the UK, the judiciary has repeatedly been slammed as being unrepresentative of society. A diverse judiciary brings equality of opportunity, democratic legitimacy and a substantive difference to decision making. An unrepresentative judiciary undermines the trust in our justice system. This is especially so when prison sentences for BAME people are 240% higher than their White counterparts for drugs offences (Lammy Review, 2017).

In order to promote judicial diversity, there is a need to support applications from a wide and diverse pool of well-qualified candidates from the legal profession. Steps are being taken to increase diversity such as the Judicial Work Shadowing Scheme which offers eligible legal practitioners, who are considering a career in judicial office, an insight into the work of a judge.

The legal profession which comprises both barristers and solicitors is the major source of the judiciary of the future. Currently, the proportion of BAME practising lawyers in law firms in the UK is estimated to be around 17%, far higher than the percentage of BAME people in the UK (13%) and the Ministry of Justice (MoJ) expects this to translate into increased diversity in the judiciary.

The MoJ should endorse measures such as publicly-stated targets for selection bodies, with monitoring and reporting on progress to the Justice Select Committee and time-limited quotas as recommended by the Lammy Review. The Judicial Diversity Committee was established to ensure greater diversity and the judicial office is working with the Judicial Appointments Commission to review and improve selection processes.

Further to current measures, there is a need for sustained training on both conscious and unconscious bias in the judiciary to reduce disparities in sentencing. Currently, judges and magistrates do receive training and guidance in unconscious bias from the Equal Treatment Bench Book concerning all minority groups.

Possible solution: ethnicity pay gap reporting

Gender pay gap reporting is now mandatory under the Equality Act 2010 and is having a gradual impact on decision making and career progression.

Ethnicity pay gap reporting should also be a mandatory requirement as data suggests BAME people currently hold just 4.6% of the top management roles. Greater diversity in the top positions will be a natural consequence of diverse recruitment however change in the senior parts of professions will take time. The top positions in many fields including the criminal justice system remain unrepresentative of society.

Possible issues with mandatory reporting

Mirroring an approach such as gender pay gap reporting presents its own issues. Firstly, there are currently no penalties for failing to report gender pay gap data and companies with less than 250 employees are exempt. Attempting to ensure diversity in the majority of law firms and chambers would be difficult if organisations with less than 250 employees are to be exempt.

Secondly, there could be some trouble in setting target figures given BAME populations aren’t evenly distributed geographically. This could be overcome by establishing specific targets by area or location.

Finally, ethnicity is largely self-reported and the term BAME is a wide term which encompasses a huge variety of people from many different ethnic backgrounds. Effective reporting of specific ethnicities would be difficult and introducing mandatory ethnicity reporting to the Equality Act 2010 would have its challenges. Legislating on this issue could be extremely effective in improving equality but it can equally be drafted so lazily as to be obsolete. Regardless of the challenges it is proposed to be a necessary step towards greater diversity in the criminal justice system and in society generally.

Increasing diversity, ensuring thorough education throughout the criminal justice system about the harms and effects of racial bias, improving social diversity and effective accountability are all necessary solutions.

The problem is circular, racial stereotypes drive inequality and inequality fuels and helps entrench stereotypes. Solutions can only be properly effective if the problem is confronted from more than one direction.

Fighting inequality is an uphill battle. The statue of Lady Justice stands above the Central Criminal Court in London, she is the personification of justice and fairness in the UK. She doesn’t (like her counterparts around the world) wear a blindfold. Her message is clear: justice, fairness and impartiality should not require closed or covered eyes.

Jalal Chohan is an aspiring barrister and a paralegal in criminal law. He graduated in law with management from Aston University and is now studying the bar course at The University of Law in London.