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Every part of the criminal justice system needs to change – and that includes defence lawyers

Posted on 6th December 2016

David Lammy’s findings about black defendants raises uncomfortable questions for defence lawyers, says Raj Chada

The emerging findings from David Lammy MP’s review should make all of us who work in the criminal justice system pause to reflect. It is not that the statistics are particularly surprising or shocking. As a cynical activist remarked after the publication of the Stephen Lawrence report, he hardly needed a lengthy public inquiry to tell him that the Metropolitan Police are institutionally racist, so I hardly need a committee of the great and the good to tell me that BAME (black and minority ethnic) individuals are over represented in the criminal justice system.

Nevertheless, it is a fact of public discourse that often it is who is saying a particular thing, and on what evidence, that is as important as what is being said. So, for Lammy to publish the finding that young black men are 56 per cent more likely than their white counterparts to end up in a crown court trial, is potentially hugely important, because it forces us all to ask the really important question – why?

It is not just the police, prosecutors and judges who need to ask that question. Defence lawyers need to ask it, too.

I found reflecting on that point a difficult and uncomfortable exercise – but a necessary one. The defence profession cannot exclude itself from the analysis of what is going wrong. While blatant racism has much reduced over the last 50 years, more subtle prejudice is still at work. Any interaction with another individual involves making some sort of appraisal of them. To say otherwise, is to deny the human imperfections we all have. We identify with people who look and sound like us; people we think could have been our colleagues or indeed our family – our sons and daughters. Our perceptions may be influenced by what happens in the society that we live in and by the press that we read. None of this is to say that we are all invariably racist; it is simply to say that combating prejudice means more than the absence of vindictiveness towards others. It means being conscious of potential differences and being aware of our own possible bias. Defence lawyers are no different from anyone else.

Using that prism – and indeed my own experience – the biggest determining factor in treating people differently is not race. It is class.

The criminal justice system is not seen as a system for fairness for all, but as a system that regulates the behaviour of the poorest in society. Defence lawyers are seen as part of that system much as everyone else. Middle class clients are treated differently and demand different levels of service. Empathy risks outweighing professionalism. There is a challenge for defence lawyers as to whether they ‘try harder’ when the client seems a bit like them. Defence lawyers game the system as well. They know that the more they can present their client as middle class and the more middle class character references they can offer, the better they are likely to fare in front of judge or jury. Race is hardly irrelevant within this context. It would be foolish to deny the greater pockets of black and Asian communities that make up the most deprived communities in the UK – so by extension a greater proportion of BAME communities may well be getting a worse service from defence professionals.

Two issues occur to me. First, apart from the statistical consequence of greater deprivation, is race irrelevant to the nature of the representation that clients get? The emphatic answer to that question is no. Race is an additional factor, particularly in offences that can be (wrongly) associated with one particular ethic group. Consider the classic case of possession of a bladed article. Your client will run self defence.

Does it make a difference if your client is a middle class white professional? Do lawyers take a different stance if the client is an unemployed white man? Are they more likely to advise of the difficulties in the case and recommend a guilty plea? What about if it is an unemployed black youth? How does that compare with an unemployed white man? I would like to say, it makes no difference, but I have been in court on too many occasions, seen too many convictions, looked at too many transfers, where the race of the defendant seemed to affect the advice given to him.

The second issue is whether one of the solutions to this conundrum is greater diversity in the profession, at both judicial and defence level. The emphatic answer to this question is yes. There is, though, a caveat here. We can never allow, let alone desire, a system whereby choice of lawyer is governed solely by their race – an apartheid system of law firms – black lawyers/firms for black defendants ; Asian lawyers/firms for Asian clients. As a BAME lawyer myself, I know that we must be as good as, if not better than others. I want people to choose me for my professional skill, but I hope that my experience and background allows me to display the empathy that is so vital for so many of our clients. Both sides of that equation are important. Indeed, is there a risk some BAME clients have fallen into the trap of looking at race alone, without looking at professional expertise? Does this contribute to the standard of service that they get?

None of this is easy. Many of my colleagues throughout the profession are like me, from a liberal/left political persuasion where fault invariably lies with the state and the courts. It is heresy to suggest that we look inwards as well. But reflect we must. If 41 per cent of youth prisoners in the UK are from minorities backgrounds, then each part of the criminal justice system needs to change – and quickly.

This article originally appeared in Legal Voice on 1 December 2016.

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