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Despite my natural scepticism, I found myself genuinely impressed by the Lammy Review.”

Posted on 15th December 2017

The Lammy Review was finally published on 8 September 2017. Despite my natural scepticism, I found myself genuinely impressed. But will it be acted on? And will it make a difference?

That over 40 per cent of our youth prison population is from black, Asian or minority ethnic (BAME) background is a scandal. The failure of policymakers to prioritise this issue should leave successive governments hanging their heads in shame.

The problem has no easy solutions. Indeed, many of the issues lie outside the criminal justice system (CJS). People from a black background are more than twice as likely to live in poverty as those from a white background. Black children as more than twice as likely to be in lone-parent families. Black and mixed ethnic boys are more likely to be excluded from school than white boys. The problems start well before a defendant’s first arrest, leaving criminal justice agencies to shut the proverbial barn door long after the horse has bolted.

Lammy has clearly thought long and hard about what the CJS itself can do. One interesting idea is a deferred prosecution model, for low-level offenders to receive targeted intervention before entering a plea. This is genuinely innovative and deserves greater focus. If multinational companies can pay a fine and change their working practices to avoid a conviction, then the model can be adopted to low-level offenders who, if successfully rehabilitated, would avoid prosecution.

Many of the problems are deeper, though. In a previous speech (Justice for all?, 3 July 2017), Lammy adopted Ted Cantle’s ‘parallel lives’ comment about how different ethnic groups co-exist without interacting or understanding each other, but replaced ethnicities with the haves and the have-nots. Surely one of the biggest issues in racial disparity is that the judiciary often fails to comprehend or even seek to understand the lives of the have-nots. As political pressure to be tough on sentencing has grown, focus has moved away from defendants’ backgrounds and how we prevent them from reoffending. The focus on judicial diversity and transparency is therefore welcome.

There may be some truth in Lammy’s assertion that lack of trust from BAME defendants in their own lawyers is one reason they disproportionately do not plead guilty at the first opportunity to get maximum credit. But where is the joined-up solution? The new sentencing guidelines mean credit is lost even more quickly at the first appearance. How do you establish trust if you are afforded five minutes at the court cell door with 10 other clients to see on your list?

The biggest loss of trust, though, is not between defendants and their lawyers, but between the BAME population and the CJS. A March 2017 report by the Centre for Justice Innovation indicated that 51 per cent of people from BAME backgrounds, born in England and Wales, believed the CJS discriminated against particular groups and individuals. This shocking statistic shows that BAME communities still feel the system is eighted against them, from how the Met investigate gangs to sentencing options. It even includes a perceived difference in policing attitudes, for example, to the Notting Hill Carnival (associated with Caribbean culture and ‘black youths’) as opposed to Glastonbury (frequented by the white middle class).

It is striking that the word racism rarely appears in the report. However, Lammy is more subtle and builds on his ‘explain and reform’ principle. If agencies cannot explain the racial disparity in statistics, they need to reform to address the anomaly. That seems to me a clever way of having a reverse burden of proof for institutional racism.

Whatever the rhetoric, the Lammy Review is something on which we all have to build and take effective action in our own professions. We just need to do it at the same time as fighting against racism and for equality in society more generally

This article first appeared on Legal Action, November 2017.

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