For Black, Asian and other Minority Ethnic (BAME) people in England and Wales, justice is elusive. That is the overwhelming message to emerge from the Lammy Review, launched on 8th September 2017 at the Royal Society for the Arts in London. Presented as an ‘independent review into the treatment of and outcomes for Black, Asian and Minority Ethnic individuals in the Criminal Justice System (CJS)’ the report painstakingly revisits the perennial theme of racial and ethnic discrimination within the CJS.
The review was commissioned in February 2016 by the then Conservative Prime Minister David Cameron and was enthusiastically endorsed by his successor Prime Minister Theresa May. From the outset, the review is meticulous in being “evidenced led”, interrogating previously unavailable official data sources alongside academic and CJS organisations’ reports and outputs. In addition, the methodology saw the report author David Lammy MP undertake numerous “site visits” to international jurisdictions added to extensive consultations “closer to home” with Voluntary and Charitable Sector (VCS) groups, CJS practitioners and people who have been in prisons or who have been subject to community-based supervision and interventions.
Before going on to consider the overall findings from the review it is necessary to pre-emptively deal with a number of obvious concerns. The Lammy Review was always going to be vulnerable to the charge of yet another government review, to be politically used and abused and then kicked into the long grass. It risks becoming another research report which initiates much debate but little action, such as the previously (state) sanctioned reports into the deaths of Stephen Lawrence and Zahid Mubarek and the countless other black and brown bodies who fatally encountered the CJS of England and Wales. Such scepticism was affirmed on seeing the parameters of Lammy’s review when it became apparent that the Police Force fell outside of its remit.
As a Site of Resistance, encounters with the police are the critical first (blue) line in processes of criminalisation. Brutal police–community relations have hitherto been a central concern to black and brown communities who are subject to over-policing, under-protection and death by policing. It is the police, who define the objects to be policed. It is the police, whose discretion initiates the unceremonious pull of black and brown bodies into the ‘justice’ system. Consequently, to attempt to understand racial disparity in the CJS without reference to the Police Force is akin to trying to empty an overflowing bath whilst the water tap is still running, a futile endeavour.
As regrettable as it may be, we must accept that the bizarre organisational and governance structures of the UK government departments impeded the inclusion of the Police Force. Moreover, I agree with review authors that had the Lammy review included the police, then it would have simply reaffirmed what Lord Macpherson concluded some 18 years ago. That the police is an institutionally racist organisation.
Getting real. The central finding is Racism(s)
What Lammy and his team have provided is a deep expose of differential treatment throughout the CJS of England and Wales. From the Crown Prosecution Service through to the Prison Service, there is racialised disproportionality. For example, BAME people who now make up 13% of the general population of England and Wales comprise 25% of the prison population. Further, the proportion of young BAME people in prisons has increased from 25% to 41% over the past ten years. This occurring at a time when officially recorded levels of crime have been falling.
Most tellingly, racialised disproportionality was most marked at the point of arrest. So despite the exclusion of the Police Force from the review, the undoubted pervasiveness of the Police as THE driver for racialised disproportionality is exposed by Lammy. So much so that,
‘The statistical analysis for this review found that ‘the system itself (from the CPS onwards) did add some degree of disproportionality’, but ‘rarely at the levels seen in arrest differences.’ (LammyPage 18, emphasis added)
And the levels of disproportionality presented in the Lammy review truly are stark.
- For every 100 white men convicted of violence against the person and placed in a high security prison, there were 160 black men and 121 Asian men.
- Similarly, for every 100 white men convicted of theft offences, there were 186 black men.
- For possession of weapons offences (again for every 100 white men), 80 more black men and 60 more Asian men were convicted and placed in high security prisons.
- Most stark, for every 100 white men convicted for public order offences, there were 417 black men and 631 Asian men serving custodial sentences in high security prisons.
Surely now such findings necessitate that those social science disciplines, empiricised upon realists’ impulses, dispense with the ‘empirical haggling’ which has to date facilitated a denial of racism, enabling ‘racisms touch’ (Tate 2016) to be ‘defined away’ and dismissed as a relic of times gone by. This is not about a particular black or Asian criminality which requires a distinct response, but the differential treatment by an institutionally racist system.
Lammy’s review demands a shift away from those discourses which conceal the racialised tendencies of the ‘justice’ system of England and Wales. Whilst politically unpalatable and clearly understated, what Lammy reveals is that the institutional racism conjured in the Macpherson report (1999) and concealed within Scarman’s report (1981) endures today in 2017. The political inertia to address institutional racism within the justice system has resulted in 9000 more BAME people warehoused in the prisons of England and Wales (page 3). The failure to address CJ discrimination has resulted in BAME people not being treated fairly, or where necessary assessed for the personal, social and economic ‘needs’ that they endure, but for the risks they are imagined to pose.
“Justice has been stolen.”
For countless black and brown people throughout England and Wales, justice has been stolen. For many, there is an institutional unfairness inherent within the justice system. There is distrust of a system, which despite its official claims has never sought to protect black and brown bodies and has only sought to punish them. As communities mourn the recent deaths of Edson da Costa, Darren Cumberbatch, Shane Bryant and Rashan Charles, who all died between June and July 2017 following encounters with the police, we discuss trust in the justice system. Within this context it is unsurprisingly that 51% of BAME people believe that the ‘CJS discriminates against particular groups or individuals’, compared to 35% of white respondents. Consequently, Lammy’s finding of a disparity in guilty pleas between BAME and white people should also be situated within this reality.
We have always known that BAME people are more likely to be stopped and searched, more likely to be arrested, charged, over-punished and imprisoned. We know that there are black and brown people currently serving custodial sentences for offences that they did not commit (Williams and Clarke 2015). The injustice of the ‘justice’ system is embedded within our collective memory for having never delivered justice.
Explain or Reform
Of the 35 recommendations, there is one in particular that stands out. Lammy introduces the principle of ‘explain or reform’, requiring this be immediately adopted by the Justice Minister. The recommendation is bold, demanding that those CJS practitioners, managers and organisations who are responsible for the management and supervision of BAME people explain the decisions that eventuate discrimination. Yet, Lammy may inadvertently have misread his own report. The discrimination revealed within this review is far deeper and even more entrenched than the simple interpersonal bias implicit in relationships between practitioner and offender. Racial discrimination extends beyond the police cells, the courtrooms and the prison walls. Racialised discrimination is entrenched within the very structures of British society.
The justice system is one of a number of Sites where racism becomes manifest. Where the principle of explain or reform is directed at CJS agencies alone, then this will absolve the Justice Minister, HM government and the State of their ‘responsibility’. Until political pressure is placed upon the State to explain or reform then the institutional racialisation revealed within the Lammy review will endure. Lammy presents us with a reminder of the continuities of racial injustice. It has again reminded us that the CJS in England and Wales is a primary Site of Resistance within which we must strive to erode deep-seated racialised discrimination.
Tate, S. (2016) ‘I can’t quite put my finger on it’: Racism’s touch’. Ethnicities, Vol 16(1), 68-85.
Williams, P. and Clarke, B. (2016) ‘Dangerous Associations: Joint enterprise, gangs and racism’. London: Centre for Crime and Justice Studies.
Blog Author Patrick William, Twitter @PatrickWillia17