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May 12, 2017

Ethnic minority defendants have very little faith in the criminal justice system

‘It was me against them. Coming from an Asian Muslim background, I didn’t see anyone with a common background. My mistrust started with the police. I didn’t trust anyone. As for judges and magistrates, they were the last people I trusted – elderly, white English people and that’s not what I see in society outside. They don’t understand what I’ve gone through or my culture. They don’t take into account anything you say, no common ground at all”.

Those are the words of 18 year old Suleman, who was sentenced to two years imprisonment in the Crown Court. He was quoted in a report on building trust in the court system with BAME defendants. It was the first of three reports published recently, all aiming to fuel the thinking of David Lammy MP as he reviews why BAME people are so over-represented in the criminal justice system.

We have no hard evidence of racial bias in court decision-making. But there are some concerning statistics – BAME defendants are 45% more likely to have their cases heard in a Crown Court, 16% more likely to be remanded in custody, and 8% more likely to get a prison sentence than similar white defendants. We need to know much more about the profile of defendants and their offences to make definite connections between, say, race and sentence severity. But what comes through loud and clear from all three reports is that BAME defendants born in England and Wales have little faith in the system from beginning to end, and that many believe there is bias against them.

The interviewees in Catch 22’s report on fairness are particularly scathing about lawyers. We have no idea of the actual quality of their advocates, but these prisoners felt that legal aid lawyers were second- class and that they would have got a better outcome had they been able to pay privately:

Liam : If you are getting legal aid then as soon as they get their money they don’t care. Money talks,
so if you aren’t paying for your lawyer then you aren’t going to get as much help.
Andy: I don’t reckon I would be in here now if I had paid for my lawyer.

These findings are based on a small sample, and the legal aid lawyers I know bust a gut for their clients, but the distrust is worrying.  And was echoed by the BAME women quoted in Double Disadvantage, a report on their experience of the criminal justice system: “the majority of focus group participants felt confused by the legal process and legal ‘jargon’, and did not feel fully informed before or during their court case”.

BAME prisoners perceive discrimination from practitioners, judges and, in some cases, juries.  A BAME woman who had received a 42 year sentence for possession and endangering lives with firearms as part of a joint enterprise prosecution believed that the sentence was heavily influenced by the fact that she was tried in a white, rural area. She cited a white woman who she met in prison who had received a sentence of 20 months for the same crime.  We don’t know how similar the circumstances of the two crimes were, but the perception of unfairness matters.

The Centre for Justice Innovation cites research that those who distrust the system are more likely to re-offend.  This makes sense since, if you do not respect the legal system, you will have less respect for the law. The Building Trust report makes some imaginative suggestions as to how we could learn from successful international models.  Let’s consider all of them, particularly increasing the diversity of the judiciary, and helping defendants understand the court process. They cite a great scheme in Canada: “the Aboriginal court worker programme facilitates the arrangement of legal aid for Native defendants, explains court procedures, and provides information about legal rights and the law to Native defendants and their families. Court workers can also brief lawyers, represent the accused in cases of minor offending when legal aid provision is not available, and often attend hearings to provide support to the defendant and their family”.

But great schemes will never be implemented unless we acknowledge the level of distrust of the system amongst BAME communities, and have the courage to work out whether they are right in thinking there is racial bias in jury and judicial decision-making.