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September 8, 2017

Is justice seen to be done in the eyes of BAME communities?

The Lammy review is both depressing and uplifting – depressing because it suggests institutional racism in the criminal justice system, uplifting because it promotes radical ways of tackling this.

There are 35 recommendations, of which some are more actionable than others.

One of the key barriers for people who want to move on from crime is our criminal records system – this forces someone who was convicted twice of shoplifting aged 12 to declare those convictions when applying to be a taxi driver aged 50. Lammy recognises how this impedes rehabilitation, and suggests that people who have childhood criminal records should be able to wipe the slate clean – to apply to a judge to have their record “sealed”. This is a great idea, one of the key reforms suggested by the Standing Committee for Youth Justice to make the system fairer.

But there is a tension between this idea, and one of Lammy’s ideas for creating more openness in the justice system. Lammy rightly cites lack of transparency as one of the causes of lack of trust in the system. And he wants all Crown Court judges’ sentencing remarks to be published, so everyone, including the defendant, understands more about the decision-making process.This sounds sensible, and would help defendants absorb the information. But I’m concerned that if remarks are published it will create a new problem – of more people being named and shamed for their misdemeanours. At the moment courts are (rightly) open to the public, and some cases are covered in local newspapers. But those people whose crimes can be googled find it hard to get the information removed when it is their legal right to do so. So publishing all criminal convictions and sentencing remarks could jeopardise rehabilitation by leading to life-long public vilification. More harm could be done through this, than good achieved through sealing childhood criminal records. So lets improve transparency instead by giving copies of sentencing remarks directly to the people they concern, encourage the public and the media to observe cases, and publish more and better data about sentencing decisions.

Lammy is spot on in encouraging more openness about judges behaviour and performance. Research reveals unconscious bias in sentencing – studies have shown that judges are more likely to make favourable decisions if they have just had lunch. But there is little training for judges in recognising and challenging their own biases, and no mechanism for court users, defendants and lawyers to feedback on the behaviour of judges, positively or negatively. Given that feedback is one of the most effective ways of improving performance, Lammy’s recommendation that “the judiciary should work with HMCTS to establish a system of online feedback on how judges conduct cases” is excellent. If they can do it in Colorado and other US states, why can’t we? Unfortunately, I think this is one of the recommendations which will definitely bite the dust. Judges here have strongly resisted being appraised, even by fellow judges, and would feel their independence to be threatened by a “tripadvisor” for judges.

The attitudes, training, outlook and make-up of the judiciary are part of the reason why people from ethnic minorities have little trust in the criminal justice system  – rightly or wrongly. Many see judges and magistrates as alien from their own communities and concerns. Unless ethnic minority citizens have faith in the criminal justice system, they will lose respect for the law.