Prime Minister, David Cameron, has invited David Lammy MP to ‘find out why official figures show that Black, Asian and Minority Ethnic groups appear to be over represented at most stages of the criminal justice system, and what can be done about it’.
Due to report in Spring 2017, the Lammy Review finds itself circumscribed, as most reviews do, by the terms set by the commissioning minister, and ‘will address issues arising from the Crown Prosecution Service onwards, including the court system, prisons and young offender institutions and rehabilitation in the community'.
The institutions of criminal justice do have a serious problem with an over representation of BAME groups in their ambits, but it is questionable whether developing an evidence-based appreciation of the institutional processes, no matter how thorough, will lead to either a rounded understanding of this disproportionality, or produce strategies for overcoming it.
One would not, for example, look at the operation of NHS hospitals to find out why a disproportionate number of people on low incomes are in hospital beds with serious life shortening illnesses; nor expect an evidenced analysis of how the hospitals operate to have anything other than a very marginal impact on the social characteristics of people who come through the doors.
Of course, the harms experienced by patients as a result of being in hospital, such as mistakes made in surgery, lack of care and attention to the vulnerable elderly, or incorrect drug dosage, are worthy of attention, but amelioration would have only a very marginal impact on the type of people present in the wards. Poverty and inequality playing crucial roles in terms of morbidity and mortality, rather than individual behaviours of either patients or hospital staff.
In a similar fashion, while the theme of institutionalised racism and the harm it causes in criminal justice operations is in need of examination, the question of why many BAME groups are disproportionately arrested in the first place – arrest being the crucial gatekeeping process, despite there being no evidence that their behaviours differ from the general population – immediately leads away from an analysis of intra-institutional processes and towards broader social questions.
The pragmatic argument that going ‘upstream’ would make the report so long that no one would read it, does not account either for the role of the executive summary, nor the variety of social media that permit people to absorb key findings in a number of formats. Prior to social media neither William MacPherson nor Lord Scarman were requested to be concise because of the danger that making their reports too long would limit their impact.
David Lammy is not oblivious to these issues. But in accepting the terms of reference he has accepted a limitation that will not ask the crucial question: why are there so many bodies with specific social characteristics floating down the river in the first place? The artifice of an analysis ‘from the Crown Prosecution Service stage onwards’ may make for good politics but will not get to the heart of the matter.
Recent research published by the Centre, Dangerous Associations: Joint Enterprise, gangs and racism, not only demonstrates the use of ethnic stereotyping as an evidential tactic by the Crown in joint enterprise prosecutions, but also that there is a sequence of events prior to criminal justice involvement leading to innocent young black men being placed on local police gang databases.
In the areas reviewed in the research, Manchester, Nottingham and London, there is clear evidence that the gang membership is disproportionately attributed to BAME groups, and young black men in particular. On further investigation it appears that multi-agency teams led by police, but including agencies such as social services and Troubled Families units and others, contribute information that enables the compilation of a ‘gang matrix’. It is this attribution that plays a key role in creating the disproportion that appears further downstream.
One example of such ‘up stream’ information management was uncovered by a Freedom of Information request, undertaken as part of the research, revealing that Job Centres in London have almost 4,000 people flagged as ‘gang members’ on their databases.
In this context it is simply not possible to have a comprehensive understanding of the disproportionate number of black men convicted under the doctrine of joint enterprise without drawing on the evidence base prior to contact with the criminal justice process.
Even in his motivation for the review, the Prime Minister argued ‘If you’re black, you’re more likely to be in a prison cell than studying at a top university'. This implicitly acknowledges the need for a wider and deeper investigation of the issue.
The ethnic penalty
At the Centre we first explored this in 2008 in the discussion paper ‘Ethnicity, harm and crime’, taking our cue from the work of US academic Bernard D. Headley. In 1983 Headley published '"Black on black" crime: the myth and the reality' (free to view with registration) in the journal Crime and Social Justice. He highlighted the striking evidence of the disproportionate range of harms experienced by black Americans. This challenged the widely held assumption in the US media and policy circles that ‘black on black’ street crime posed the greatest threat to the individual safety, well-being and security of Black Americans.
Adapting Headley's original structure and argument, we presented data that raised similar questions about whether ‘Black on Black crime’ and in particular young black men were the locus of the most serious harm to Black people in the UK. From a review of a wide range of data covering the social and economic experience of BAME groups we drew the conclusion that young black men were far more harmed by British society than harmful to it or the communities that they lived in. Disproportionate imprisonment itself constituted one part of the broad spectrum of harms experienced.
Prisons are full with people who are in the main from low income backgrounds. Many are dispossessed. For example, a third of the prison population are homeless, half of this group sleeping rough before entering prison. So on initial inspection it might be concluded the disproportionate presence of young black men in criminal justice is simply an artefact of the poverty experienced by large sections of different black communities.
Yet examination of other data suggests there are a wider range of factors at play beyond low income. Evidence recently collated by my colleague Matt Ford, and explored in detail in the September 2015 edition of the Centre’s magazine, Criminal Justice Matters, indicate that one key factor may be an ‘ethic penalty’ experienced by young black men across a wide range of social institutions and social processes.
The concept of the ‘ethnic penalty’ was coined as a way of understanding poorer outcomes for some BAME groups in terms of employment and income. At the Centre we extended the use of the term to mean a penalty in any aspect of life that exist even if a person from an ethnic minority has the same socio-economic background as a white person.
Matt updated much of the data we first presented in 2008. It is evident that, in terms of schooling, access to and type of university, employment opportunities, rates of pay, and access to housing, poverty and inequality explain part, but by no means all, of the unequal outcomes. He argues:
It is clear from the evidence…that many black people face penalties in many areas of their lives. These penalties also seem to be cumulative, and they intersect with other factors to produce significant inequalities between ethnic groups. The sheer breadth of areas that the ethnic penalty appears to occur in…suggests a person’s ethnic background still has a considerable influence on the way people are able to live their lives.
In other words, there is nothing sui generis about the ethnic disproportionality found in the criminal justice system. It is part of a broader pattern experienced by many BAME group in many areas of early life into adulthood.
While criminal justice processes have a certain amount of organisational and cultural autonomy, they do not sit in a bubble separate from society. They are grounded in it, and are reflective of the social relationships that shape society as a whole.
It is only by an examination across the whole of the social experience of BAME lives that it will be possible to understand the place and role of the specific set of administrative procedures that make up the criminal justice process in creating the phenomenon that David Lammy is being asked to explain, and to suggest, as the Prime Minister requests, ‘what can be done about it?’.
This article was published simultaneously this month in The Barrister magazine.