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Race consciousness and the law
The notion that the law should be ‘colourblind’ and ‘race neutral’ is a barrier to eradicating and challenging racist and discriminatory practice.

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The perspectives of defence lawyers

A new (14 March 2023) report from the Howard League “Race consciousness and the law is a new” written by Dr Alexandra Cox of the University of Essex, explores the stark racial and ethnic disparities that exist at all levels of the criminal justice system in England and Wales. It shows how lawyers, who are present at almost every stage of the criminal justice system, are in a unique position to identify and challenge racism, but their knowledge and experience has been under-researched.

The research

The research is based on focus group discussions with 30 legal practitioners (barristers, solicitors and paralegals), most of whom were based in London. The aim of the focus groups was to identify key gaps in knowledge for practitioners interested in engaging in anti-racist practices, identify key areas where anti-racist practices could make a contribution to client engagement and outcomes for Black clients, and to identify barriers to anti-racist legal practice. The findings are organised under the three key headings used below.

Challenges in confronting a “colourblind” legal system

The interviewees spoke about the challenges of practicing in an environment where they knew that their clients’ lives had been negatively affected by racism, but where they felt that they had few avenues to raise those matters as relevant to the criminal case. They talked about facing people in positions of authority in the legal system who would invoke the language of neutrality and colour blindness in the face of stark racial disparities.

In general, practitioners felt that they needed to present their advocacy in a race neutral manner in order to be ‘heard’ by legal authorities. In response to a question about whether practitioners could present evidence about the ways that racism may have shaped their clients’ lives, a barrister responded: 

“you’ve got to tailor to the individual because otherwise, there will be pushback from the courts, if you were simply to say a particular category of defendants or particular category of people must be treated in a particular way”

The police station and the courts as racialised social systems

A number of the practitioners in the focus groups pointed to the accumulated experiences of racism their clients had experienced from an early age, and in social institutions which had shaped their lives even before reaching the police station. Some lawyers spoke of the difficulties and lack of skill in unpicking the accumulation of systemic harms, which weigh on their experiences of simply being in the courtroom and the dilemma progressive lawyers faced when their Black clients demanded white representatives in the belief that this would help their cases be taken seriously.

One interviewee described the ways that these negative experiences were amplified for his clients who face significant forms of racism and prejudice from the moment they walk through

“the front door of the court, how they are dealt with, by the security, how the ushers deal with them, how court staff, how barristers deal with them, how solicitors deal with them, is right the way through. So it’s systemic, right, right through the whole system.”

Evidence and experts

Interviewees consistently argued that the evidence presented against their clients in the courts perpetuated racial stereotypes and myths about their clients’ involvement in criminal activity in ways that have serious consequences for case outcomes. Key factors identified in the research were a lack of experts and evidence to challenge these myths.

There were two themes to emerge in the focus groups about evidence. The first theme was a concern about the overreliance by the prosecution on police experts who perpetuate myths and stereotypes about Black clients. The second theme was a concern about the use of tools like the London Metropolitan Police’s Gangs Matrix or similar databases said to be used in cities like Manchester and Birmingham, in court bail arguments against clients of colour, despite limited evidence that these tools are effective.

One concern expressed by the practitioners was that the kinds of experts who had legitimacy in these courts were actors like police officers, whose expertise largely went unquestioned. They spoke about the dearth of defence experts in the areas of gang policing, and thus the difficulties in challenging police as expert witnesses.

Recommendations

The report concludes with a series of recommendations, four of which are reproduced below. It advocates that legal practitioners should:

  1. Summon the courage to have difficult conversations with clients about their experiences of racism, classism and sexism before the law.
  2. Engage in legal advocacy that is race conscious, as opposed to race neutral.
  3. Develop and cultivate a range of experts who are knowledgeable and have expertise in racialised realities, and who can speak to the accumulation of systemic disadvantages that clients of colour have faced before they have arrived in the system.
  4. Develop and support continuing legal education programmes which focus on equipping practitioners with the resources necessary to confront racialised forms of evidence.

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