A Prime Minister keen to show a commitment to tackling racism in the criminal justice system, while minimising the risk of having to deal with politically toxic findings, might well set up a review such as the one just completed by David Lammy.
The terms of reference given to Lammy set the starting point of his review at the charging decisions taken by the Crown Prosecution Service (CPS). He found that CPS charging decisions were ‘broadly proportionate’. Suspects from different ethnic groups, he wrote, were ‘charged at relatively similar rates’. Following the trail through the justice system, Lammy also found that ‘jury conviction rates were very similar across different ethnic groups’.
So far, so good for those claiming the justice system is colour-blind.
Lammy also found that black and minority ethnic (BAME) adults, particularly women, were more likely to be found guilty in magistrates courts, compared with white defendants. BAME defendants were also more likely to be given a prison sentence on conviction than comparable white defendants. This was particularly the case with drug offences, where the chances of a prison sentence were some 240 per cent higher for BAME defendants. ‘Many will conclude’, Lammy wrote, ‘that this is evidence of bias’.
Learning difficulties and mental health problems among BAME prisoners were less likely to be identified than among white prisoners. Relationships with staff were poorer, with few prisoner complaints related to racial discrimination – ‘just one in a hundred’ – being upheld.
Some may disagree with Lammy’s findings. But the claim that his report contains no evidence of racial bias and disproportionalities is simply wrong.
That said, his report also gives succour to those who want to believe that there is nothing fundamentally amiss with the justice system. Lobbyists and politicians with predetermined agendas will try to use his report to sow division, the argument goes. At most, the argument might continue, his report highlights the need for some minor tweaks and changes – improved data collection and processes here, better training and staff diversity there – rather than fundamental reform.
Which brings us to Lammy’s terms of reference. Someone ends up being prosecuted, convicted and imprisoned having first been arrested by the police. The activities of the police are part of the picture of possible bias and discrimination against BAME people.
But Lammy’s terms of reference excluded policing from consideration. Whether this was a conscious decision by David Cameron and his advisors is a matter of conjecture. The omission was certainly helpful for those who want to believe the justice system is fair to all.
To his credit, David Lammy went outside a strict interpretation of his terms of reference to look at arrest rates. The data review he commissioned found that young black males were nearly three times more likely than white young males to be arrested. Black men were more than three times as likely to be arrested. Mixed ethnicity men were two times as likely to be arrested. BAME women were also more than two times as likely to be arrested.
‘The consequence of these arrest rates’, Lammy noted, ‘is that the caseload passed onto the CPS prosecutors and, potentially the courts and prison system, is already skewed towards particular BAME groups’.
The generally small biases in the justice system from the CPS forward are far outweighed by the foundational biases found in policing activity and arrest rates.
Like the householder who explains a damp patch on the carpet by pointing to the stain on the ceiling rather than the missing roof tile, those who decided David Lammy’s terms of reference chose to ignore where there real problem lies.
Unsurprisingly, much of the debate over his report has been characterised by petty squabbles over second-order problems.
Those who claim to think seriously about possible racial, and other, biases in the justice process need to broaden their gaze.