April 2017Keir Irwin-Rogers and Millie Shuter

Fairness in the criminal justice system: What’s race got to do with it?

About the authors

Dr Keir Irwin-Rogers

Keir is a lecturer in Criminology at the Open University. Previously he led Catch22’s Dawes Unit research programme, designing, conducting and managing research projects that focus on serious youth violence.

Before joining Catch22, Keir completed a BA in History, an MA in Law, an MA in International Criminology, and a PhD in Criminal Justice with the University of Sheffield. Keir is currently studying for a BSc in Mathematics and Statistics with the Open University.

He has worked with the Sentencing Council for England and Wales, the University of Haifa’s Faculty of Law, and the University of Minnesota’s Robina Institute of Criminal Law and Criminal Justice.

In recent years, Keir has conducted studies on a range of subjects including community sanctions, deterrence, gangs, and sentencing.

Millie Shuter

Millie worked as External Affairs Manager at Catch22, responsible for media, public affairs and stakeholder engagement.

Before joining Catch22, Millie graduated with a BA in Modern Literature and Media from Goldsmiths College, University of London. She spent two years in a communications and public affairs consultancy where she specialised in working with social sector clients.

Millie has also worked in secondary schools and for the youth service as a mentor and personal adviser. Most recently she worked on a residential project supporting unaccompanied asylum seeking children arriving in the UK. This year Millie will begin training to qualify as a social worker.

“If you’re dressed a certain way or you’re from a certain area, you’re getting stopped.” Focus group: BAME participants

Foreword

Chris Wright Chief Executive, Catch22

The Lammy Review launched in January 2016, as a welcome focus on this important issue. Endorsed by the Prime Minister with cross-party support and launched with an extensive call for evidence, there was no question as to whether Catch22 should contribute. Rather the question we asked ourselves was what we could add to this review that would do justice (pardon the expression) to our service users.

As a nationwide delivery organisation, our contribution focuses on ensuring that the voices of those with current and lived experience of the justice system are included in the review.

Catch22 works throughout the criminal justice system, and has done for 200 years. We’re there when young people first get into trouble, and support them in youth justice settings. We run offender management, resettlement and rehabilitation in 20 prisons and

the community, all over the country. This trusted relationship means that we experience first hand the disproportionality of black and minority ethnic (BAME) people in the system.

Many BAME prisoners we work with feel voiceless about issues that profoundly affect their lives - they are the nameless, faceless people behind the annual crime statistics. While policy makers, experts and academics can easily quote crime statistics and reoffending rates, less attention is given to the experiences and views of those on the receiving end of justice. This deprives us all of the valuable, first-hand insight and depth of experience that could enable better policy-making and lead to a fairer, more effective justice system.

To rebuild trust, people must believe that justice is fair and equally applied to all. For that to happen people trapped in the system must be able to understand the system – the rules that govern it, how these are applied. Providing clarity and accountability

for decisions will send us well on our way. To do this we need better trained, more empathetic staff – staff from a range of backgrounds and experiences, staff who are more representative of the people they work with.

In our view, it’s really all about the people. Good relationships are what stand out as making a difference. Staff who take the time to understand an individual’s circumstances and motivations, and actively care about them. Proper relationships built around trust and understanding are what make a difference in people’s lives. If we apply this across the system, I think we’ll see real improvement both in how prisoners feel about equality and fairness, and about the effectiveness of the system as a whole.

You only have to walk down a prison landing to see the overrepresentation of BAME individuals. Now is the time to get to grips with why this is happening, the impact it’s having and crucially, what can be done to eradicate it altogether. This review is

a good opportunity to put right some longstanding wrongs - so that in future we can have a justice system that is fair; one that people trust, one that we can be proud of.

Executive summary

The principles of fairness and justice are intimately bound together. And yet there are many people in England and Wales who think that our criminal justice system is unfair.

We began this research against a well established backdrop of statistics. Research shows that it is BAME groups, most notably those from a Black Caribbean and Mixed White and Black Caribbean background, with the sharpest perceptions of unfairness.1

This report draws data from focus groups with people serving sentences of imprisonment inside an English prison. It focuses on prisoners’ perceptions of (un)fairness spanning the breadth of our criminal justice system, from policing, through to legal advice, sentencing, prisons and penal sanctions implemented in the community. While it explores perceptions of fairness in general, it focuses in particular on issues around racial discrimination.

The report aims to ensure that the voices of those inside the justice system inform the ongoing Lammy Review of BAME representation in the criminal justice system. We wanted to provide the context to the quantitative study, shedding light on people’s lived experiences that lie behind the statistics. Statistics are important, providing stark evidence of racial disproportionality in the system, but statistics can only ever tell a partial story.

The people we work with in prison often feel that they lack a meaningful voice about issues that profoundly affect their lives – they are the nameless, faceless individuals behind the annual crime statistics. We believe that the experiences and first-hand insights conveyed in this report will help to facilitate better policies at a strategic and operational level, encouraging a fairer, more effective justice system.

“The legal aid in this country is absolutely terrible. […] If you have to pay someone to represent you and do their job, then there’s no equality. If you ain’t got the money, you got no evidence against you, you still go down. Someone with a lot more money is gonna walk because he’s paying someone to do the work.”

Focus group: BAME participants

Key findings

We found that prisoners have low levels of trust and confidence in the criminal justice system. Two things mattered more than most:

1. Participants were concerned about a lack of diversity across the full spectrum of criminal justice professions. They believed this increased the risk of stereotypes, prejudice and racial discrimination in decision-making.

In contrast, when the racial demographics of criminal justice professions broadly reflect those of the communities they serve, this can convey a powerful message of equality. It improves the chances of positive interactions between professionals and BAME individuals at ground level. It increases the likelihood of these professions incorporating BAME perspectives at a strategic level.

2. Participants spent the majority of focus group discussions highlighting their frustration with

opaque decision-making across the criminal justice system. In short, people felt that if a decision was likely to have a profound effect on their liberty, then they should be entitled to know not just the outcome of a decision, but how and why that decision was made.

Participants highlighted their frustrations with a lack of transparency across the entire criminal justice process, including, but not limited to: police decisions to stop and search; decisions made by legal representatives; court decisions on bail, remand and sentence severity; prison officer decisions on Incentives and Earned Privileges (IEP) status; and offender manager decisions on post-custodial licence recall.

Opaque decision-making – or the failure to communicate decision-making processes, or the reasons underpinning particular decisions, effectively – contradicts recognised principles of procedural justice. 2

Whilst it is concerning from a broad fairness perspective, opaque decision-making is particularly problematic when considered through a lens of race. Firstly, it opens up potential for decisions to be influenced by racial discrimination, stereotypes or prejudices, as is well-evidenced by an established body of research on decision-making.3

Second, lacking any evidence to the contrary, it increases the likelihood that people from a BAME background may assume racial discrimination has influenced an adverse decision, regardless of whether discrimination actually played a role in shaping the decision outcome.

The key findings relating to particular components of the criminal justice system are as follows:

1.1.1 Policing

• By far, the main policing grievance was stop and search. Many participants reported feeling that

decision-making processes around stop and search were unclear and the reasons for particular stop and searches were based on flimsy evidence that attempted to mask an underlying racial prejudice.4

• Concerns were also raised about a lack of diversity in police forces, particularly in relation to senior positions.5

1.1.2 Legal Aid

• There was a marked lack of trust and confidence in legal aid lawyers from both white and BAME prisoners. Participants believed the primary motivation of legal aid lawyers to be profit, rather than prioritising the interests of their clients.

• This lack of trust and confidence in legal aid lawyers meant that people were less likely to trust the advice they were given, particularly involving decisions around whether or not to plead guilty.

1.1.3 Bail and remand

• Participants believed that judicial decisions to grant or refuse bail were typically arbitrary or based on stereotypes, including potential discrimination on the grounds of a defendant’s race.

• There was a widespread perception that at this stage of the criminal justice system, a number of stakeholders including the police, the prosecution and the judiciary came together to ‘conspire’ against the interests of defendants, undermining people’s rights to a fair and impartial trial process.

1.1.4 Sentencing

• Participants were concerned about a perceived lack of diversity on juries and among members of the judiciary, particularly in terms of race, but also in terms of age and social class. This lack of diversity was thought to preclude

an adequate understanding of the daily challenges faced by many defendants.

• Similar to bail and remand decisions, people believed that decisions around sentence severity were often arbitrary or based on prejudice and stereotypes. Participants seemed to lack any knowledge or understanding of sentencing guidelines that structure and enhance the consistency of sentencing.6

1.1.5 Prisons

• A central source of perceived unfairness was the IEP scheme, which enables or restricts prisoners’ access to a range of material items or services whilst in prison. Participants felt that the rationale underpinning decisions around a prisoner’s IEP status was often opaque. This left prisoners making assumptions about how or why particular decisions had been

made, often resulting in suspicions of racial discrimination.

• There was a widespread perception that the best, and sometimes the only way to get prison staff to act on prisoner requests or concerns was to behave aggressively – quiet prisoners, participants reported, were almost always ignored.

• There was a perceived breakdown of order and safety in prisons, which many participants attributed to the loss of significant numbers of prison staff, or the replacement of older, experienced staff members with younger members of staff who lacked the competence or confidence to perform their roles effectively.

1.1.6 Community sanctions

• Participants felt that whilst community sanctions should prioritise a prisoner’s rehabilitation and reintegration, the professionals delivering

these sanctions had become increasingly risk averse in recent years. Participants instead felt that professionals prioritised the functions of monitoring and control.

• Recall decisions were widely regarded as unfair, due to their perceived reliance on inadequate or flimsy evidence. Recall was seen as impervious to challenge, and there was little understanding that there is an administrative process which provides checks and balances to offender managers’ recommendation for recall.

1.2 RecommendationsOur recommendations focus on diversity and transparency. To address these challenges we must increase the diversity in criminal justice professions to better reflect the communities they serve. Simultaneously we must create a culture of openness and transparency to replace the current opaque nature of decision-making.

1.2.1 Increase diversity in criminal justice professions

There is a clear and compelling case for increasing the diversity of criminal justice professionals, above and beyond other areas of employment.

• Further efforts should be made to establish diverse and representative workforces in all criminal justice professions that reflect the demographics of the communities they serve.

1.2.2 Replace opaque decision-making with a culture of transparency

If decisions are likely to have a profound effect on someone’s liberty, then that person should be entitled to know how and why such decisions were made.

• Professionals working across the criminal justice system must effectively communicate general decision-making processes, as well as the reasons underpinning specific decisions, in a timely and transparent manner to the people affected by these decisions.

1.2.3 Further recommendations

Based on the focus group data, we would highlight two further recommendations:

• All criminal justice professions should provide people with appropriate opportunities to

challenge or review key decisions that can profoundly affect their liberty.

• Severe resource pressures are currently hindering the adequate functioning of a range of criminal justice professions, most notably the police and prison services. Staffing levels across the criminal justice system, in terms of both quantity and quality, must be reviewed, along with how best to think imaginatively about how to utilise scarce resources.

1.3 About the research

This report is based on focus groups with people serving prison sentences in England. In total, 26 people were interviewed across four focus groups, one involving BAME gang nominals, one involving white gang nominals, one involving BAME non-gang nominals, and one involving white non-gang nominals.

1. Ministry of Justice (2015) Statistics on Race and the Criminal Justice System 2014. Available at: www.gov.uk; Office for National Statistics (2016) Crime in England and Wales: Annual supplementary tables. Available at: www.ons.gov.uk.

2. Hough, M., Jackson, J., Bradford, B., Myhill, A. and Quinton P. (2010) ‘Procedural Justice, Trust and Institutional Legitimacy’, Policing, 4(3), 203-210; Mazerolle, L., Bennett, S., Davis, J., Sargeant, E. and Manning, M. (2013) ‘Procedural justice and police legitimacy: a systematic review of research evidence’, Journal of Experimental Criminology, 9(3), 245-274.

3. Ariely, D. (2008) Predictably Irrational: The Hidden Forces That Shape Our Decisions. New York: HarperCollins; Baron, J. (2008) Judgement Misguided: Intuition and Error in Public Decision Making. New York: Oxford; Bushway, S. D. and Piehl, A. M. (2001) Judging Judicial Discretion: Legal factors

and racial discrimination in sentencing. Law & Society Review. 35 (4): 733-764; Lynch, M. and Haney, C. (2011) Mapping the Racial Bias of the White Male Capital Juror: Jury Composition and the ‘Empathetic Divide’. Law & Society Review. 45 (1): 69-101.

4. Ministry of Justice (2015) Statistics on Race and the Criminal Justice System 2014. Available at: www.gov.uk.

5. House of Commons Home Affairs Committee (2016) Police Diversity: First report of session 2016-17. Available at: www.publications.parliament.uk.

6. The Sentencing Council for England and Wales (2015) Crown Court Sentencing Survey: Annual Publication. Available at: www.sentencingcouncil.org.uk.

References

“If you was in Brixton or something like that, where there’s a lot of black people, and you come up in a court there, they give you longer really, cos all they see is black people. ” Focus group: White participants

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