As part of David Lammy’s review of the treatment of, and outcomes for, Black, Asian and minority ethnic people within the criminal justice system, the MoJ has just (16 November 2016) published a new report: Disproportionality in the criminal justice system.
The report acknowledges that the discriminatory impact of policing and specific policies, such as stop and search, are well evidenced and the subject of considerable debate in this arena, but notes that there is less published evidence on disproportionality from the point of Crown Prosecution Service (CPS) involvement onwards in the CJS.
The reports sets out to identify key pinch-points in the CJS from this point onward, focusing on identifying where disproportionality becomes more pronounced and may therefore warrant further explanatory investigation.
The paper uses the concept of Relative Rate Index (RRI) to identify specific stages, decision points or junctures in the CJS where disproportionality emerges.
Simply put, the RRI is a means of comparing the rates of CJS contact experienced by different groups. A rate was defined as the count of persons experiencing an event or outcome out of the total number of people who were ‘at risk’ for experiencing the event or outcome. Rates for each ethnic group relative to the white ethnic group were compared to determine whether they were significantly different from one another.
The report analyses management information data to show large BAME disproportionate contact occurring at the point of arrest with small contributions to BAME disproportionate contact emerging at subsequent stages in the CJS. Some areas – such as CPS charging and convictions – found white ethnic groups experienced small levels of disproportionate outcomes. Nevertheless, areas within the CJS post-arrest where BAME disproportionality was found to be particularly pronounced included:
- being tried at Crown Court rather than magistrates’ court;
- custodial remand and plea at Crown Court;
- custodial sentencing; and
- adjudications of prison discipline.
Further details on these issues are provided below.
Considering Crown Court trials, all BAME males – both adults and youth – and BAME women were disproportionately more likely than their white counterparts to be committed for trial at the Crown Court. Disproportionality was particularly pronounced for Asian and other ethnic young males, while black and mixed ethnic young females were no different from white young females to be committed to the Crown Court. Specifically:
- Black young males were just less than 60% more likely than white young males to be committed to the Crown Court for trial; and
- Asian young males were just less than 2.5 times more likely and other ethnic young males were just greater than 2 times more likely to be committed to the Crown Court for trial compared to white young males.
In addition to the seriousness of the offence committed, custodial remand and plea could influence custodial sentencing for those convicted at Crown Court. Where the number of cases was sufficiently large for calculations to be made, all adult BAME groups were more likely than the white group to be remanded in custody at Crown and, apart from other ethnic women, to plead ‘not guilty’ in their cases.
For instance, black, mixed ethnic and other ethnic men were more than 20% more likely than white men to be remanded in custody. The difference in plea for adults was particularly striking. Black, Asian and other ethnic men were greater than 50% percent more likely than white men to plead ‘not guilty’ at Crown Court.
It is generally the case that custodial sentencing may be associated with offender age, ethnicity, offence type and court where the case was heard. This report found custodial sentencing for all BAME men and black women committing drugs offences was particularly disproportionate at Crown Court. Indeed, this was the only offence group where custodial sentencing was consistently more likely for all BAME men relative to the white group, and for black women. For example:
- Black men were about 1.4 times more likely than white men to receive a custodial sentence;
- Asian men were 1.4 times more likely than white men to receive a custodial sentence;
- Mixed ethnic men were 1.1 times more likely than white men to receive a custodial sentence;
- Other ethnic men were about 1.6 times more likely than white men to receive a custodial sentence; and
- Black women were about 2.3 times more likely to receive a custodial sentence for drugs offences compared to white women.
For all of the groups highlighted, arrest rates for drugs offences were also disproportionately high. These ranged from black men being 5.4 times more likely than white men to be arrested for drugs offences to Asian men being about 1.4 times more likely. All BAME men were somewhat more likely than white men to be committed to the Crown Court for trial, but conviction rates were marginally lower than, or proportionate to, white men across all groups.
Taken together, this analysis implies that disproportionality in prison for BAME men and black women convicted of drugs offences can be traced back to a combination of disproportionate arrest and disproportionate custodial sentencing at the Crown Court.
Adjudications in prison
The adjudication system allows prison governors and independent adjudicators to address breaches of prison discipline. This analysis showed that black and mixed ethnic men, and mixed ethnic women, had adjudications brought against them at higher rates than white groups.
The rate for mixed ethnic men was a notable 50% higher than for white men.
Nevertheless, no ethnic group had adjudications proven at higher rates than white groups. In fact, adjudications against Asian women were significantly less likely to be brought compared to white women and were about one-third less likely to be proven if brought.
In summary, this analysis of adjudications could imply that even while in prison, BAME prisoner behaviour is more heavily scrutinised.
This MoJ report confirms what most have known for many years, that the criminal justice system is discriminatory at most stages. We will have to wait for Mr Lammy’s report to see what sort of recommendations he makes to address this fundamental unfairness.