Gaps in CJS data impacting accountability

The Lammy Review called for the UK criminal justice system (CJS) to have more scrutiny in their data on ethnicity and religion, in order to move towards fairer treatment. It highlighted some gaps in information recorded. These gaps in reporting make it impossible to analyse whether disproportionalities are a result of charging rates, sentencing decisions or reoffending rates. The review concluded that fair treatment was more likely when institutions are open to scrutiny.

The courts and Crown Prosecution Service (CPS) do not record religion, which makes it harder to hold them accountable for discrimination. Prisons do record religion and have seen an increase in the number of Muslim prisoners by 50% in the prior ten years, from 8,900 to 13,200, but the lack on data at the courts and CPS obscure this fact. Muslims make up 15% of the prison population despite making up only 5% of the overall population. Since information on religion is not recorded at the earlier stages of the CJS, too little is known to determine the true cause of this disproportionality. The Lammy Review proved that this significant increase in prisoners could not be linked to terrorism offences, because only 175 Muslims were convicted of terrorism-related offences between 2001 and 2012 (less than 1% of the Muslim prison population).^[4] Despite this the most prominent frustration of Muslim prisoners has been found to be stereotypical portrayals of Islam, leading to unfair treatment and higher levels of restraint and segregation being used against them by staff.^[5]

Gypsies, Roma and Irish travellers are estimated to account for 5% of male prisoners,^[6] despite accounting for only 0.1% of the UK population, however this is not covered in the official CJS monitoring systems. Leaving this information out could be particularly damaging to a vulnerable group, since the Lammy Review also found that 27% of Gypsy, Roma and Traveller prisoners reported feeling depressed or suicidal on arrival compared with 15% of all prisoners. Furthermore only 35% received information on what support was available to them compared to 44% of all prisoners.

Relative Rate Index

The Lammy Review proposes that the UK should adopt a similar system to the US for attempting to gain insight into why there are disproportionalities in ethnicity at each stage of the CJS and tracing the impact of decisions made at each stage. A relative rate index (RRI) is effectively the number of people experiencing an event or outcome out of the total number who were ‘at risk’ for experiencing the event or outcome.^[7] The comparison to previous stages is particularly useful because proportionality numbers alone do not pinpoint which stages of the CJS are particularly influenced by ethnic bias.^[8]

The Lammy Review uses the example of rates of proceeding women's cases at the Crown Court or Magistrates' Court to demonstrate the method used and found that once charged Black women were 63% more likely to be proceeded to the Crown Court than White women, and Asian women were 108% more likely than White women.

Recommendations

• All stages of the CJS should collect more consistent data on religion and ethnicity, so that differences in treatment and outcomes can be examined in more detail.
• The relative rate index analysis completed as part of the Lammy review should be repeated biennially as part of the 'Statistics on Race and the Criminal Justice System' reports.
• The principle of 'explain or reform' should be applied to every CJS institution, where reforms should be introduced to address disparities between ethnic groups if an evidence based explanation cannot be provided.

Policing and prosecution of suspected gang members

The Review argues that the current system of policing those suspected to be part of "gangs" is both ineffective and based on misunderstanding. The Review suggests that using Modern Slavery legislation to target those at the tops of complex criminal hierarchies would be a more effective approach than targeting groups. The targeting of groups disproportionately affects BAME people in several ways:

• Joint Enterprise

One of the key tools used to prosecute suspected gang members is the doctrine of Joint Enterprise. Individuals in a "Joint Enterprise" can be either "principals" or "secondary parties" - a principal is the person that carries out the substantive offence, and the secondary party is one who assists or encourages the commission of the substantive offence. The doctrine of Joint Enterprise enables the secondary party to be prosecuted as if they were the principal offender themselves. Of the thousands that have been prosecuted under this doctrine over the last decade, a survey of prisoners suggests that half of those convicted identify as BAME.

• Trident Matrix

The Metropolitan Police, cited in the report, argue that gang affiliation and crime are "fluid and chaotic" and attempting to address associated issues on a group level is ineffective. The Metropolitan Police argue instead for targeting individual criminal activity - however, this has led to the disproportionate targeting of BAME individuals on surveillance-based databases such as The Trident Matrix. At the time of the review, records showed that 86% of names on the Trident Matrix were BAME.

Structural racism beyond the CPS

The report explains how wider systemic factors affecting BAME young people feed into the CPS. A written submission to the report's Call for Evidence by the Black Training and Enterprise Group said that "the main pathways and risk factors for young people into the youth justice system all record high levels of disproportionality: from school exclusions, the care system, Child and Adolescent Mental Health Service and first contact with the police." The London Criminal Courts Solicitors' Association's written submission states: "In the absence of educational or employment progression...it may become a default position to fall in with a 'gang'."

The role of plea decisions

Plea decisions are critical to Criminal Justice System, by providing incentives for those who have committed crimes to admit guilt, in order to prevent the stress placed on victims. Those who plead guilty can see sentences reduce by a third, or gain access to interventions which seek to keep them out of prison altogether. An example case study can be found in the Humberside Adult Female Triage pilot.^[1]

BAME plea decisions

Several older and more recent studies have found that BAME defendants are less likely to enter guilty pleas, in most types of offences. The Relative Rate Index analysis of 2014/15 data 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.
• Black, Asian, Mixed ethnic and Chinese/Other ethnic women were all more likely than White women to enter not guilty pleas at Crown Court, with Asian women more than one and a half times more likely to do so.
• While there were too few cases to examine plea decisions for young women, young men from a Black, Asian or Mixed ethnic background were more likely to enter a not guilty plea compared to their White counterparts.^[1]

Lack of trust

The primary reason for this difference in plea decisions is a lack of trust in the Criminal Justice System among BAME communities. This makes BAME defendants less likely to cooperate with the police or trust the advice of legal aid solicitors, who can be seen as part of the ‘system’. At the same time, Black, Asian and Mixed ethnic defendants are all more likely to request legal advice in police station than their white counterparts. Instead, it is that many BAME defendants neither trust the advice that they are given, nor believe they will receive a fair hearing from magistrates. In some cases, this means defendants pleading not guilty and then electing for a jury trial at the Crown Court, rather than be tried in a Magistrate’s Court, despite the higher sentencing powers available at the Crown Court.^[1]

The suggestions as part of this section were that:

• The Home Office, the Ministry of Justice and the Legal Aid Agency should work with the Law Society and Bar Council to experiment with different approaches to explaining legal rights and options to defendants.^[1]

Deferred prosecutions

In England and Wales, an innovative scheme named Operation Turning Point was piloted from November 2011 to July 2014. It was designed with racial disparities in plea decisions in mind, and saw offenders participate without the requirement that they first admit an offence. Defendants were given the opportunity to go through a structured intervention, such as drug treatment, instead of facing criminal charges. The latest published information indicates that almost as many BAME offenders took part in the scheme as White offenders. Early evaluation of the scheme indicates that the risk of reoffending is reduced and that the cost is lower than traditional prosecutions.^[1]

The suggestions as part of this section were that:

• The ‘deferred prosecution’ model pioneered in Operation Turning Point should be rolled out for both adult and youth offenders across England and Wales. The key aspect of the model is that it provides interventions before pleas are entered rather than after.^[1]

Magistrates

Magistrates deal with 90% of criminal court cases each year - those acting as magistrates do not require legal training or qualifications but are understood to be 'representatives of the people'. Of those tried at magistrates' courts, Black women, Asian women, Mixed ethnic women and Chinese/Other women were all more likely to be convicted than white women. Magistrates keep sparse records of pleas or defendants' legal representation, thus lowering accountability.

Sentencing and imprisonment

For those convicted of recordable, indictable offences in the Crown Court in 2015, there was an association between ethnicity and being sentenced to prison. An especially strong effect was observed within drug offences (within which the odds of receiving a prison sentence were around 240% higher for BAME offenders) - this is despite the fact that research has found that Black British people consume drugs at lower rates than white British people.^[10] The Review suggests that the judiciary should provide an evidence-based explanation for this disparity. Defendants can appeal sentencing decisions to the Court of Appeal but decisions will only be overturned if they are found to be made in error or "manifestly excessive". Sentencing judges are given wide discretion and the Review says that the appeal process cannot capture "collective differences" in the application of this discretion which may contribute to racially skewed incarceration rates.

Probation

The report found that Criminal Rehabilitation Companies (CRCs), private sector companies tasked with rehabilitation low to medium risk offenders, are not giving BAME groups the specialized services that they require. Furthermore it found that offenders managed by the National Probation Service (NPS), public sector organization dealing with high risk offenders, are more likely to receive the types of support needed than with the CRCs and that CRCs were not involving specialist BAME organizations in the way that they were intended to.

The suggestions as part of this section were that:

• The Ministry of Justice should create a working group to assess what is stopping CRCs subcontracting to specialist support groups
• The Ministry of Justice should improve reporting about the CRCs handling of groups with protected characteristics (this includes BAME groups).^[1]

Youth Re-offending

The report found that there has been a history of knowledge regarding BAME children being disproportionately affected by the Criminal Justice System, specifically Youth Offending Teams (YOTs).

This previous work found that:

• Youth Offending Teams were more likely to detain black children than white children
• BAME children committed less crimes but still received custodial sentences
• BAME children would enter the Criminal Justice system at a younger age and be less able to escape it

This report found that there had been no substantial follow up of the previous findings.

The suggestions as part of this section were that:

• The Youth Justice Board should commission and publish an evaluation of what has been learned in the past and identify actions for the future^[1]

Work, Education and Training

The report found that work reduces dependency on crime and that training increases self-respect and stake in society. Therefore work is key to reducing re-offending. Despite this, previous convictions have a hugely detrimental effect on future work prospects and BAME groups are disproportionately affected as they are already more likely to be discriminated in employment. The report finds that the Criminal Record system is key in this system and needs reform.

The suggestions as part of this section were that:

• The Criminal Justice System should allow for sealing criminal records, stopping record checks seeing offenses, based on a court hearing
• The government should publish a study to highlight the cost of unemployment in ex-offenders^[1]