“Now is the time to stop talking and take action.” David Lammy MP
A trusted justice system is one that is fair, transparent, and accessible. To have confidence in the justice system, the law must be equally applied to all and there must also be respect for the rule of law. These are core principles and should be applied in any justice system.
Whilst preparing for the delivery of culture and diversity training to those working with children and young persons in the criminal justice system, I went on to consider the issue of equality for children and young persons in the criminal youth justice system.
This led me to remind myself of the findings of the Lammy Review. https://www.gov.uk/government/organisations/lammy-review
This was an independent review of treatment of, and outcomes for Black, Asian and Minority Ethnic (BAME) individuals in the Criminal Justice System in England and Wales. The review was led by David Lammy MP. The review was commissioned by two Prime Ministers and the final report was published in September 2017. https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/643001/lammy-review-final-report.pdf
The disproportionate findings made by the review may not be surprising to those who work in the criminal justice system but show worrying disparities that demonstrate that BAME individual’s disproportionality represented in the criminal justice system and faced bias in parts of the criminal justice system.
A few of the key findings of the review were:
- BAME make up 14% of the population, however BAME men and women make up 25% of prisoners, and over 40% of young people in custody are from BAME backgrounds.
- The proportion of BAME young offenders in custody rose from 25% to 41% between 2006 and 2016, despite the overall number of young offenders falling to record lows.
- The rate of black defendants pleading not guilty in Crown Courts in England and Wales between 2006 and 2014 was 41%, compared to 31% of white defendants.
- BAME defendants are more likely to go to prison for certain types of crime. One finding was that for every 100 white women handed custodial sentences at Crown Courts for drug offences, 227 black women were sentenced to custody. For black men, this figure is 141 for every 100 white men.
Children and Young Persons
- The BAME proportion of young people offending for the first time rose from 11% year ending March 2006 to 19% year ending March 2016.
- The BAME proportion of young people reoffending rose from 11% year ending March 2006 to 19% year ending March 2016.
- The BAME proportion of youth prisoners has risen from 25% to 41% in the decade 2006-2016.
- A third of children in prison have spent time in the care system, 45% arrive with substance misuse problems and 61% have a track record of disengagement with education
The Review made 35 recommendations and concluded that BAME individuals still face bias and overt discrimination in parts of the justice system. David Lammy urged the justice system to take major steps to increase diversity and transparency.
Despite the findings and recommendations of the Lammy Review, statistics show a disturbing increase in the above figures.
For year ending March 2019:
- Black children were over four times more likely to be arrested than white children.
- During the same period, the proportion of minority ethnic children who were first time entrants to the system stayed at a similar level of 25%, compared to 24% in the year ending March 2018.
- On average, 49% of children in custody were from a Black, Asian and minority ethnic background in 2018/19, compared to 45% in the year ending March 2018.
(annual national statistics on race and the criminal justice system can be found at https://www.gov.uk/government/statistics/race-and-the-criminal-justice-system-statistics-2018)
Not surprisingly the above trends are reinforced by the data collected by the Youth Justice Board (YJB), who published a report in January 2021- Ethnic disproportionality in remand and sentencing in the youth justice system.
The report used two years of the YJB’s case management and assessment data to better understand the extent of ethnic disproportionality in remand and sentencing outcomes (including formal out-of-court disposals). It found the following:
- There are more restrictive remand outcomes for Black and Mixed ethnicity children
- There are fewer out-of-court disposals for Black, Asian and Mixed ethnicity children
- There are harsher court sentences for Black children
- Black children remained less likely to receive community remand
Youth Justice
It is quite understandable to see why David Lammy MP said the unless youth justice sees.” fundamental reform, these young people will become the next generation of adult offenders, stuck in a cycle of crime, unemployment and welfare.”
The Lammy Review found that a lack of diversity, can perpetuate a culture of “us and them”
Increased transparency is necessary so that trust in the criminal justice system can be regained. This is not just with the BAME defendants and offenders but also the among the BAME population and the general population as a whole.
Encouraging News
The Ministry of Justice confirmed its pledge to increase confidence in the Criminal Justice System by publishing “Tacking Racial Disparity in the Criminal Justice System”, (February 2020) by
making a commitment to various changes including providing support for victims from BAME by developing guidance for Police and Crime Commissioners around effectively supporting racial and ethnic minorities through the local victim support services they commission.
More recently the Working Party of JUSTICE published its report on Tackling Racial Injustice: Children and the Youth Justice System on 25 February 2021, seeking to examine the causes of BAME disproportionality in the Youth Justice System (YJS) of England and Wales. Their key recommendations are seen to help build what is described as a child-first approach into the justice system
Youth Offending Teams (YOTs)
YOTs or now often called Youth Offending Service (YOS), they were established by the Crime and Disorder Act 1998, with a view of reducing youth offending and reoffending. It is to the credit to those who work in YOTs that this overall outcome has been achieved. Despite the overall decline in youth offending, the BAME proportion continues to feature significantly.
It is essential that there is an understanding of specific needs, experiences and culture of BAME to reduce that feeling of “us and them” as described in the Lammy Review
What is required for change to support BAME children and young persons
- Greater support for Children
Children and young people facing the criminal justice system require greater support whether they are being presented to before a youth offender panel or the criminal youth court. For that reason, parents are required to attend for those that are under16.
The Ministry of Justice has acknowledged a need to ensure that parents can access appropriate resources to understand and navigate the system, to facilitate and encourage them to support their child and to challenge the decisions and actions of their child, where necessary
- Support for Children and young persons who are looked after
Children who are in the care of the local authority are owed a duty of care from their corporate local authority parent Guidance states that it is good practice and beneficial that the child/young person’s allocated social worker accompanies them to the youth court. When this is not possible members of the YOT teams should use their best endeavours that if the social worker is not able to attend then as a best alternative will try to gather as much information about the child/young person so that the child/young person can be supported by the YOT worker.
- Understand and trust the process
The MoJ revealed that children and young people do not always understand the process in the police station and beyond. Intense emotions can make it hard for young people and their parents to trust and/or process the information given to them at this point. Effective communication with children and young people is crucial to reduce anxieties and to help them and their parents to understand and engage in the process.
The MoJ has committed to exploring ways of reducing the time young people spend in custody, as well as improving the support that is provided.
- Early legal advice
MoJ acknowledged that children and young people do not always utilise their right to legal advice. Whilst police inform children of their entitlement to free legal advice, children do not always understand what this means, the solicitor’s role or how this could benefit them. With effective communications this may change, and children and young people will understand the real significant of seeking early legal advice and support.
- Change in Culture of Assessments
To build trust with BAME individuals, there needs to be a change in culture which can only be achieved with effective communication, awareness of one’s owns unconscious biases and awareness of BAME individuals’ specific needs
The YJB’s analysis of data found that both remand decisions and legal outcomes are affected by practitioner assessments. This means that any potential bias in practitioner assessments of risk and vulnerability translates into disproportionality in both remand and sentencing outcomes. This clearly reveals that disproportionality in practitioner assessments may translate into disproportionality in both remand and sentencing outcome.
An understanding of diversity means recognition of both visible and equally importantly non-visible differences. Such differences can lead to differences in ability to trust, experiences, values, attitudes, ways of thinking, behaving, communicating and working. In turn all these have an impact on decision making.
Assessments are a key tool in understand those differences. For an effective assessment the practitioner must first acknowledging existence of his/her own unconscious biases. Change is necessary but can and will only come about with an acceptance of the impact of those unconscious biases
Child centred approach
Focusing on the child’s needs, background and experiences are key to any effective assessment. This enables the court/panel/professionals to have a clear understanding of the child’s needs and as described by JUSTICE a child first approach.
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