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The Lammy Review: good ideas, but too many polite words

Posted on: 8th September 2017

Comment from Joanna Bennett, Civil Liberties solicitor and Raj Chada (below) Criminal Defence partner.

Today, David Lammy published his Review of the treatment of Black, Asian and Minority Ethnic (BAME) people in the criminal justice system and offered 30 recommendations to help produce better outcomes for the disproportionate number of people within this group arrested and charged.

The overwhelming sentiment in the Review is that any improvement to the system depends on fairer treatment of BAME people within it – by listening to their assessment of judges, listening to their concerns in prison, by making the legal system easier to understand from the outset.

All the recommendations are positive and, if executed as proposed, would, you would hope, lead to improvement. But there are two fundamental issues highlighted but not tackled by the Review that, in my mind, will undermine progress.

One is the notion that the youth justice system is a success story. How can it be when figures prove we are clearly failing our young BAME?

The other is tackling the trust deficit between BAME and the criminal justice system. This deficit hardly comes as a surprise when BAME communities are over represented in every negative aspect of policing from stop and search, use of taser/force (as illustrated by the most recent figures) to deaths in custody/following police contact.

Disappointingly, the report does not discuss why mistrust exists in the first place. Until those issues that generate mistrust are addressed and there is some accountability, it’s difficult to see how real progress can be made.

Note on Lammy Review from a criminal justice system by Raj Chada

Firstly, the review and any attention to this issue is welcome; that 40 per cent of our youth prison population is from an ethnic minority is a scandal and the failure of policymakers to prioritise this issue means successive governments should hang their head in shame.

There are certainly some ideas here, though – for example, the roll out of 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 deferred prosecutions can work for multi-national companies that pay a fine and change their working practices to avoid a conviction, then the model can be adopted to low level offenders that if they are successfully rehabilitated they will avoid prosecution.

But Lammy risks concluding with polite words and waffle in other areas. The “trust deficit” is a paramount issue – but where are the recommendation that will actively give us a more diverse judiciary and legal profession?

In a previous speech, Lammy adapted Ted Cantle’s “parallel lives” comment about how different ethnic groups co-exist without interacting or understanding each other. Lammy replaced ethnicity with “the haves” and “the have nots” who now have parallel lives. Surely one of the biggest issues in racial disparity is the utter failure of the judiciary to understand or even seek to understand the lives of those from the “have nots”.

As political pressure has cranked up to be “tough on sentencing”, the chance for a greater enquiry as to how the defendant got there in the first place – and what we do a society to prevent him/her from reoffending – is lost and the result is the catastrophe known as the prison population.

There may be some truth in Lammy’s assertion that lack of trust from BAME defendants in their own lawyers is one reason such defendants 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 that credit is lost even more quickly at the first appearance. How do we establish trust if you are afforded 5 mins at the court cell door with 10 other clients to see on your list. Processing defendants does not lead to developing a system of trust – yet that is what the MoJ wants lawyers to do.

Ultimately, this battle requires more than just checks, balances and monitoring in the criminal justice system. It requires us to help individuals through support and intervention, to hold individuals to account through community mechanisms and to develop that individual so that he has sense that he or she belongs and has a stake.

The solution as to why so many BAME youths do not feel they have that stake is political not legal: An active well-funded state that exists to help all its citizens, not just one section would benefit everyone, not just BAME communities.

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