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How is the criminal justice system stacked against black boys?

Penelope Gibbs
24 Jan 2021

When I discuss ethnic disproportionality in child prisons – pointing out that over half the children in custody are from BAME communities – people sometimes respond “but that must be because BAME children are accused and convicted of more serious crimes”. Or “but BAME children live in poor communities, and its their class rather than their race which effects outcomes”. These explanations are possible, but I’ve never been convinced. If nine out of ten London children who are remanded are from BAME communities, it just seems pretty unlikely that their race has nothing to do with it.

new report published by the Youth Justice Board nails the evidence and proves that race alone is a factor in sentencing and remand outcomes for children – something activists and others have been saying for a long, long time. The report is not a light read, but it is thorough. The researchers gathered data on thousands of English and Welsh cases, and information provided in practitioner assessments. They analysed all demographic information, the offences themselves and the practitioner assessments, and worked out whether children from some BAME communities got different outcomes.

The disproportionality of outcomes “disappeared” in a number of scenarios when demographic and offence related factors were controlled for (eg the seriousness of the offence). But by no means all:

  • Mixed ethnicity and black children were still more likely to be remanded in custody and, if not remanded, more likely to be subject to restrictions on bail.
  • Black children were less likely to get a first tier (least punitive) court sentence and more likely to get sentenced to imprisonment
  • Black, Asian and mixed ethnicity children were less likely to be diverted from prosecution through the use of out of court disposals.

This study shows clearly that outcomes for children from some ethnic minority communities, particularly black children, are more punitive. And this is only looking at the final stages of the criminal justice process – at children accused of/charged with crimes. Before they even get to that point there is a big discrepancy in stop and search and arrest rates. In 2019, black children were just over four times more likely to be arrested than white children.

This research doesn’t explain why black and mixed ethnicity children end up being sanctioned/remanded/punished more harshly, but it does point to one area of concern – how practitioners treat children of different ethnic communities. The researchers controlled for the practitioner assessments of the children in the study. These assessments are done by youth justice staff who interview any child at risk of getting a criminal sanction, gather information about them and the offence, and make a judgment about the risk that child will reoffend and/or cause serious harm to others. And make an assessment of the child’s safety and wellbeing. Even controlling for all the other factors (including the seriousness of the offence), practitioners were likely to score children from ethnic minorities more highly. Black children were assessed as having a higher likelihood of reoffending and of creating serious harm. They were also assessed as less safe.

Unfortunately these risk assessments form the basis of YOT recommendations as to whether a child should be diverted from prosecution or what sentence they should receive. Courts usually follow YOT advice. So if a black boy is assessed as at serious risk of reoffending, the boy is more likely to be imprisoned on remand, more likely to be prosecuted and to get a harsher sentence. The research doesn’t say whether the practitioner assessment is right or wrong: “both remand decisions and legal outcomes are affected by practitioner assessments. Differences in practitioner assessments of vulnerability and risk might reflect biases in judgement or actual societal differences in circumstances and wellbeing between children of different ethnicities”. Assessment of children’s risk of reoffending is notoriously unreliable, whatever the ethnicity of the child. So its sad that outcomes for black and mixed ethnicity children should be dependent on such (possibly biased) assessments.

This report answers a key question, but begs many others, such as why practitioners assess black children as more risky and dangerous. We do need more research, but we shouldn’t wait for results before we act. As David Lammy said, “explain or reform”. We should encourage all police, judges, lawyers, social workers and YOT staff to acknowledge this disparity and address any bias in the system. The jury is out on the effectiveness of unconscious bias training, but there are other ways of addressing and reducing bias. And its not just about unfairness. Bias breeds mistrust and mistrust undermines the rule of law.