Lammy review: proportion of young black offenders in custody risen from 25% to 41% in last decade

David Lammy speaking at Justice Alliance demo

The lack of trust from BAME defendants in criminal justice was a ‘fundamental challenge’ to the system, according to the findings from the Lammy Review. Eleanor Sheerin reports

The independent review, chaired by David Lammy MP, was conducted over the course of eighteen months, looking into the treatment of, and outcomes for, black, Asian and minority ethnic (BAME) individuals in the criminal justice system in England and Wales.

Lammy, the Labour MP for Tottenham, was asked to conduct the review by then-Prime Minister David Cameron in January 2016, with the aim to establish the facts and make recommendations to ensure everyone in contact with the criminal justice system is treated equally, regardless of race or ethnicity. It addresses all issues arising from the role of the Crown Prosecution Service (CPS), including charging decisions, plea decisions, courts, prisons, and rehabilitation in the community.

The study found that BAME disproportionality in the criminal justice system costs the taxpayer at least £309 million each year, as well as a number of other concerning statistics. For example, the proportion of BAME young offenders in custody rose from 25% to 41% between 2006 and 2016, despite the overall number of young offenders falling to record lows.

The Trust deficit
Meanwhile, evidence shows the rate of black defendants pleading not guilty in Crown Courts in England and Wales between 2006 and 2014 was 41%, compared to 31% of white defendants. This means they lose the possibility of reduced sentences and it raises questions about trust in the system, something that the review labelled ‘the trust deficit’ – BAME defendants simply do not believe that the CPS will deliver on the promise of less punitive treatment in exchange for prompt admissions of guilt, and correspondingly do not have faith in the legal advice that they are given.

BAME defendants are also more likely to elect to be tried by a jury at a Crown Court rather than be tried by a magistrate, despite the Crown Court’s higher sentencing powers, because they have more confidence in the fairness of juries than that of a magistrate. The review labelled the trust deficit as a ‘fundamental challenge’ for the criminal justice system, and called for it to ‘experiment and innovate’ in explaining to defendants their legal rights, as well as finding new ways to work around this lack of trust, such as publishing all sentencing remarks made in the Crown Court to increase transparency.

The review contains over 30 recommendations, including introducing assessments of a young offenders’ maturity, exploring how criminal records could be ‘sealed’, in a nod to the US system, and the setting of a national target by the government to achieve a representative judiciary and magistracy by 2025.

The review also proposed that institutions across the criminal justice system should have to use a ‘explain or reform’ method in relation to racial disparities. ‘If CJS agencies cannot provide an evidence-based explanation for apparent disparities between ethnic groups’, the review recommends, ‘then reforms should be introduced to address those disparities’.

One particularly radical proposal, which is recommended as a short-term solution to the trust deficit, calls for a ‘deferred prosecution’ model to be rolled out, allowing low level offenders to receive targeted rehabilitation before entering a plea. Those successfully completing rehabilitation programmes would see their charges dropped, while those who did not would still face criminal proceedings. The review sees the model as a way to ensure that BAME defendants do not face heavier punishments than their white counterparts, despite the trust deficit, as it provides intervention before pleas are entered rather than afterwards.

The scheme has been piloted in the West Midlands, known as Operation Turning Point, with violent offenders 35% less likely to reoffend. Victims were also more satisfied, feeling that intervention before submitting a plea was more likely to stop reoffending.

Whilst the review has on the whole been welcomed, it has also been suggested that the Lammy Review has only skimmed the surface of the issue of race within the criminal justice system. Joanna Bennett of Hodge Jones and Allen noted that whilst the review talks about what can be done to work round the ‘trust deficit’ between BAME people and the criminal justice system, there is not enough done to explore why that deficit exists in the first place, which would involve looking at the police’s disproportionate actions towards BAME people, who are statistically over-represented in aspects of policing like stop and search (which the review does briefly address), use of force, and deaths in custody. ‘Until those issues that generate mistrust are addressed and there is some accountability,’ she said, ‘it’s difficult to see how real progress can be made.’

Similarly, the Centre for Crime and Justice Studies praised many of the review’s recommendations but expressed its regret at the review’s limited scope, which meant that the disproportionate targeting of BAME people by the police was not explored sufficiently, as ‘the starting point of the disproportionate criminalisation and punishment of black and minority ethnic people is their disproportionate rates of arrest by the police.’

Richard Garside, director of the Centre for Crime and Justice Studies, said: ‘All members of society, regardless of culture, heritage or the colour of their skin should be equal before the law and treated fairly by the various parts of the criminal justice system.

‘It is a disgrace that racial injustice and racist practices remain embedded in our justice system. I hope that the many good recommendations in David Lammy’s review will be implemented quickly, and thoroughly.

This article was published on September 8, 2017