A deficit of trust
A new (28 March 2017) report from the Centre for Justice Innovation examines racial disparity in the criminal justice system and the consequential effect that many Black and Minority Ethnic people feel the system is stacked against them.
Most strikingly, the report, Building Trust: how our courts can improve the criminal court experience for Black, Asian and Minority Ethnic defendants, describes the perceptions of many defendants from a BAME background that the criminal justice process is “us against them”:
It was me against them… I didn’t trust anyone. I didn’t see anyone with a common background… judges and magistrates, they were the last people I trusted – elderly, white English people and that’s not what I see in society outside.
The last time I saw a black judge, I was watching The Fresh Prince of Bel-Air .
The report highlights the racial disparities in our system. Compared to white individuals, BAME people are twice as likely to be stopped and searched by the police and more likely to be arrested. When going to court, the figures show a defendant from a BAME background is more likely to be remanded into prison before trial. And then more likely on conviction to be handed a prison sentence by the Crown Court. This overall picture hardly inspires confidence. More stop and searches; more arrests, many of which result in no further action; more prison time on remand and longer custodial sentences if found guilty. Little wonder that British-born BAME people’s trust in the justice system is comparatively low. (You can see more detail on these figures here.)
The report argues that trust in the fairness of our courts is key to the legitimacy of the criminal justice system:
Our courts are charged with guaranteeing our fair and equal treatment before the law. But, while the British judicial system has a reputation as one of the fairest in the world, our criminal justice system does not command the trust of our Black, Asian, and Minority Ethnic (BAME) citizens. A majority (51%) of British-born BAME people believe that the criminal justice system discriminates against particular groups and individuals, compared to only 35% of the British-born white population. David Lammy MP, who is currently leading a government review of race and the criminal justice system, has described this as the ‘trust deficit’.
The consequences of distrust
The report points out the unsurprising fact that this lack of confidence fuels vital decisions in court. Defendants from a Black or minority ethnic background more frequently plead not-guilty to charges in the Crown Court than white defendants. Their experiences and perceptions perpetuates a vicious cycle of mistrust. Of course there may be all sorts of good reasons for this plea. But under current sentencing practice, the risk every defendant who enters a not-guilty plea and goes to jury trial is that, if convicted, they receive a longer prison sentence.
This completes a vicious circle of distrust; defendants may plead not guilty because they perceive the system as unfair and then receive a longer system when convicted — apparently proving that it is unfair.
The Centre for Justice Innovation report looks at how other countries have attempted to tackle racial disparity through positive action by the courts.
In New Zealand, there have been significant attempts to deploy restorative justice at court, especially for the Maori population. These programmes typically involve an offender participating in a meeting with members of a community panel, often including Maori elders and the victim. An evaluation found that this can reduce re-offending.
In the USA a number of jurisdictions adopt the procedural fairness approach designed to improve all defendants’ perceptions of the fairness of the court process. Often, improving procedural fairness in court can boil down to simple things. For example, judges and court staff are trained in using simple, plain English, making eye contact, and avoid multitasking (such as looking down at a mobile phone) while speaking to defendants. There is now promising evidence that these strategies can improve the court experience for all defendants, especially those who otherwise have low levels of trust in criminal justice institutions, often people from marginalised ethnic minorities.
In Australia, there have been attempts to connect the justice system with Aborigina/Koori communities. Special courts invite greater participation by the Koori community in the whole court process. Koori elders, Koori court officers and Koori defendants and their families all contribute to the court hearing. There is evidence that Koori courts increase defendant appearance rates and can reduce reoffending.
(Many readers will be familiar with the similar community justice approaches pioneered by the Red Hook Community Justice Centre in New York City.)
The purpose of the Building Trust report is to provide useful building blocks for the wider Lammy review on tackling racial disparity in the criminal justice system. It provides promising evidence that some countries have been able to improve trust and legitimacy in courts while reducing re-offending. It is possible to make the court process feel fairer for everyone.
The report ends with two recommendations:
- That the current government programme of modernisation – online and virtual courts – should prize perceptions of fairness as a measure of their success.
- That our courts must be properly rooted in their communities, for instance, through the adoption of pop-up court hearings in civic buildings such as libraries.
The Centre for Justice Innovation also summarised their findings neatly in the infographic below:
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