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December 23, 2017

Kicked into the long grass – how independent reviews on justice get sidelined

This is the second Christmas where the Ministry of Justice has slipped out their response to an independent review just beforehand. Last year they published their response to the Taylor review – a radical reform programme for the youth justice system by Charlie Taylor. Charlie recommended a complete overhaul of the system, but the government didn’t. Only one recommendation was fully endorsed – the creation of a new form of child custody, the secure school.

This Christmas its the government response to the Lammy Review that has been slipped out. The review garnered much press when it was published in September, as much for its premise – that there are indications of significant racial bias in the criminal justice system – as for its actual recommendations. David Lammy MP put a brave face on the government response, hailing the support for deferred prosecution and the government’s acceptance of most of his recommendations. But “acceptance” can be interpreted in a myriad ways:

1. There are very few recommendations where the government commits to implementation, even on data collection. At the moment, there is no data on the numbers in the magistrates’ court who plead guilty or not guilty (and the outcomes for both groups). This hampers any policy work in this area. The government says: “we are conducting further analysis into data gaps in the magistrates’ court to identify how to best address them” ie maybe.

2. Reform of criminal records legislation – one of the most radical proposals, and received positively in the press, has been delayed perhaps indefinitely. Lammy’s recommendation was:

“Our CJS should learn from the system for sealing criminal records employed in many US states. Individuals should be able to have their case heard either by a judge or a body like the parole board, which would then decide whether to seal their record. There should be a presumption to look favourably on those who committed crimes either as children or young adults but can demonstrate that they have changed since their conviction.”

The government responded

“The Government is currently involved in litigation relating to the existing criminal records regime. We consider that it is important to consider the different aspects of the disclosure regime in the round, and we will therefore consider these recommendations, along with recommendations on criminal records made in Charlie Taylor’s Review of the Youth Justice System and the concerns raised by others, once the litigation is concluded”.

What the government’s response doesn’t say is that the reason it is involved in litigation is that it lost a case in the Appeal Court in May this year against the fairness of its criminal records legislation and has chosen to fight for maintaining the status quo in the Supreme Court. It makes no sense to fight through the courts for the current criminal records regime, if you are committed to change.

3. A number of recommendations relate to the judiciary. All have been rejected. A suggestion that judges should be subject to online feedback has been dismissed (as I predicted) because “an online feedback system would be likely to be used primarily as a vehicle for dissatisfied parties to complain about the decision and would not be consistent with the principle of judicial independence”. This flies in the face of the evidence in the USA where many states run successful feedback programmes. Their judiciary is still fiercely independent. It is also a blow for lawyers who have recently complained about judicial bullying. Online feedback would have provided one route for lawyers to communicate their experiences.

All the recommendations for increasing judicial diversity are rejected, including recommendation 15. This was for the government to develop new approaches to increasing the diversity of the magistracy including considering transferring recruitment to the Judicial Appointments Commission (it is currently done by Advisory Committees). The government does not respond to this suggestion at all, though it reassures that the Judicial Office is working to “review the attraction, recruitment, selection, welfare and development of magistrates”. Currently the magistracy does not reflect the BAME population (only 11% are BAME) and particular communities – Roma, Somali, Eastern European – are not represented at all.  I’m not convinced more of the same will produce the change we need.

The government’s response to Lammy is disappointing, particularly given the Prime Minister’s commitment to fight ethnic discrimination. One of the challenges with both Charlie Taylor’s review into youth justice and Lammy’s review of race in the criminal justice system, is that the Ministry of Justice has recently found it hard to contemplate system reform. There has been high turnover of Lord Chancellors, and all have been faced by a crisis in the prison and probation systems. Faced with “wicked” but not urgent problems such as how we deal with race and childhood in the criminal justice system, it seems easier to kick things into the long grass. Ironically the only radical reform the Ministry of Justice is working on – digital court reform – may harm both BAME and child suspects through restricting access to justice and effective participation and reducing trust in the criminal justice system.