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Over the past year, I have worked with the Howard League for Penal Reform on a practical guide for antiracist lawyers. The guide was produced in association with Black Protest Legal Support and an expert advisory board. I was involved as an advisory board member, sharing my experiences of how racial disparity and racism can impact experiences in the courtroom. We came to constructive solutions on how we can effectively challenge it.
The statistics on court outcomes show why this work is needed. The prison sentences handed down to Black people are, on average, 1.4 times the length of those given to white people. Nearly half of Black people who come before the Crown Court are remanded to custody, compared to 38% of white people. A Black person who is charged with a drug offence is 1.4 times as likely to receive an immediate custodial sentence than a white person in the same position.
The youth justice system is even more unequal. At present, nearly a third of children in youth custody are Black. Our justice system recognises that children (and, to a lesser extent, young adults) are less culpable than fully-grown adults and have a greater capacity for change. But Black children are not protected in the same way and to the same extent as white children: Youth Justice Board analysis shows that they are significantly more likely to be remanded to custody than white children, and that this cannot be explained by demographic or offence-related factors.
In response to the data on unequal outcomes, Sentencing Council guidance now advises sentencers to bear racial disparities in mind. As criminal defence lawyers, we also have a responsibility to challenge racism in court.
I have previously written about the need for lawyers to recognise how we, as a profession, contribute to the racism which permeates the criminal justice system. Legal training does not equip us to be antiracist: if anything, it can make it harder for us to recognise and counter racism. For this reason, it is important that we begin by educating ourselves.
Matthew Clair, an assistant professor of sociology at Stanford, has studied how criminal defence lawyers perpetuate racial and class disadvantage in the US. Clair explains that defendants who have grown up experiencing racism, classism and overpolicing are more likely to resist their lawyers or resign themselves to unfair outcomes (and so show little investment in the process). This leads to a poorer quality of representation and worse outcomes: ‘when clients withdraw from their lawyers, lawyers, in turn, often withdraw from their clients’.
We should start by listening to our clients. What experiences have they had with authority and injustice in the past, and how does this impact their perceptions and behaviour in the present? Do they understand that their lawyer is on their side? Do they have any vulnerabilities which have previously been overlooked, such as mental health issues or experiences of exploitation or domestic abuse?
The first section of the Howard League’s guide focuses on racialised social structures, setting out the structural disadvantage which Black people experience in education, housing, healthcare and employment. Lawyers need to be familiar with this broader context and should recognise how it has impacted clients. Too often, Black people’s lived experience is misrepresented and overlooked in court while racialised evidence is accepted as fact.
We often uncritically adopt racialised evidence: persuasive evidence which is directly shaped by the racially stratified system which a defendant lives in. For example, this could be a witness statement which uses generic racial descriptors to describe a Black person rather than describing their specific characteristics.
Police ‘gang’ intelligence is one of the most damaging examples of this. This intelligence is often poorly-evidenced and discriminatory. Earlier this year, the Met removed a thousand young Black men from its Gangs Matrix because a review found that they posed no or little risk of harm. People can be added to the Matrix based on hearsay evidence, or associations which may simply reflect the fact that someone has grown up in the same neighbourhood and attended the same school as people who are already on the Matrix, or even through being a victim of crime.
In 2018, research by Amnesty International found that 72% of people flagged for gang-related violence in London were Black. In comparison, 27% of police-recorded perpetrators of serious youth violence were Black. Given these stark disparities, ‘gang’ intelligence should be approached critically. We should be slow to admit it without knowing what is it based on and the strength of the underlying evidence.
The same applies to joint enterprise prosecutions, which disproportionately target Black people. An ongoing research project has found that young Black men who are accused of joint enterprise offences stay silent in police interviews because they do not understand the law; do not trust the police; and have been advised to say nothing by their legal representatives. Failure to answer questions can then result in an adverse inference being drawn by a jury on the basis that it would have been reasonable for them to have provided explanations in interview. This risks ignoring the reasons why they might mistrust the police. As advocates, we must recognise this and counter these assumptions, this could be through how we take our clients through evidence in chief, encouraging them to set out this background and proffering an explanation to the jury that they can weigh against drawing that inference.
More than one in ten defendants are Black. In contrast, around 2% of solicitors, 3% of barristers and 4% of magistrates are Black. Most significantly, only 1% of judges are Black.
The courtroom is an overwhelmingly white, male and middle-class space. It can make court proceedings feel especially hostile. I have often witnessed my clients being told off for behaviour like looking at the ground or having their hands in their pockets. Court is an intimidating environment to most people, on top of this, cultural expectations inform how – for example – defendants are expected to show emotion such as remorse. Defendants who do not conform to these expectations can be denied the court’s empathy.
Court proceedings can be especially alienating for defendants who are marginalised in multiple, intersecting ways. A 2017 report by Agenda, the alliance for women and girls at risk, describes the ‘double disadvantage’ experienced by Black and women in the criminal justice system. The women who participated in Agenda’s research did not feel listened to in court, did not understand the process and felt that sentencing decisions were biased. Lawyers should counteract this by showing that they recognise injustices in the system and by being honest about the limits of their own cultural understanding.
Abimbola would like to thank Dr Molly Corlett, Legal Project Support Officer at the Howard League for Penal Reform who worked on this article with her.
Over the past year, I have worked with the Howard League for Penal Reform on a practical guide for antiracist lawyers. The guide was produced in association with Black Protest Legal Support and an expert advisory board. I was involved as an advisory board member, sharing my experiences of how racial disparity and racism can impact experiences in the courtroom. We came to constructive solutions on how we can effectively challenge it.
The statistics on court outcomes show why this work is needed. The prison sentences handed down to Black people are, on average, 1.4 times the length of those given to white people. Nearly half of Black people who come before the Crown Court are remanded to custody, compared to 38% of white people. A Black person who is charged with a drug offence is 1.4 times as likely to receive an immediate custodial sentence than a white person in the same position.
The youth justice system is even more unequal. At present, nearly a third of children in youth custody are Black. Our justice system recognises that children (and, to a lesser extent, young adults) are less culpable than fully-grown adults and have a greater capacity for change. But Black children are not protected in the same way and to the same extent as white children: Youth Justice Board analysis shows that they are significantly more likely to be remanded to custody than white children, and that this cannot be explained by demographic or offence-related factors.
In response to the data on unequal outcomes, Sentencing Council guidance now advises sentencers to bear racial disparities in mind. As criminal defence lawyers, we also have a responsibility to challenge racism in court.
I have previously written about the need for lawyers to recognise how we, as a profession, contribute to the racism which permeates the criminal justice system. Legal training does not equip us to be antiracist: if anything, it can make it harder for us to recognise and counter racism. For this reason, it is important that we begin by educating ourselves.
Matthew Clair, an assistant professor of sociology at Stanford, has studied how criminal defence lawyers perpetuate racial and class disadvantage in the US. Clair explains that defendants who have grown up experiencing racism, classism and overpolicing are more likely to resist their lawyers or resign themselves to unfair outcomes (and so show little investment in the process). This leads to a poorer quality of representation and worse outcomes: ‘when clients withdraw from their lawyers, lawyers, in turn, often withdraw from their clients’.
We should start by listening to our clients. What experiences have they had with authority and injustice in the past, and how does this impact their perceptions and behaviour in the present? Do they understand that their lawyer is on their side? Do they have any vulnerabilities which have previously been overlooked, such as mental health issues or experiences of exploitation or domestic abuse?
The first section of the Howard League’s guide focuses on racialised social structures, setting out the structural disadvantage which Black people experience in education, housing, healthcare and employment. Lawyers need to be familiar with this broader context and should recognise how it has impacted clients. Too often, Black people’s lived experience is misrepresented and overlooked in court while racialised evidence is accepted as fact.
We often uncritically adopt racialised evidence: persuasive evidence which is directly shaped by the racially stratified system which a defendant lives in. For example, this could be a witness statement which uses generic racial descriptors to describe a Black person rather than describing their specific characteristics.
Police ‘gang’ intelligence is one of the most damaging examples of this. This intelligence is often poorly-evidenced and discriminatory. Earlier this year, the Met removed a thousand young Black men from its Gangs Matrix because a review found that they posed no or little risk of harm. People can be added to the Matrix based on hearsay evidence, or associations which may simply reflect the fact that someone has grown up in the same neighbourhood and attended the same school as people who are already on the Matrix, or even through being a victim of crime.
In 2018, research by Amnesty International found that 72% of people flagged for gang-related violence in London were Black. In comparison, 27% of police-recorded perpetrators of serious youth violence were Black. Given these stark disparities, ‘gang’ intelligence should be approached critically. We should be slow to admit it without knowing what is it based on and the strength of the underlying evidence.
The same applies to joint enterprise prosecutions, which disproportionately target Black people. An ongoing research project has found that young Black men who are accused of joint enterprise offences stay silent in police interviews because they do not understand the law; do not trust the police; and have been advised to say nothing by their legal representatives. Failure to answer questions can then result in an adverse inference being drawn by a jury on the basis that it would have been reasonable for them to have provided explanations in interview. This risks ignoring the reasons why they might mistrust the police. As advocates, we must recognise this and counter these assumptions, this could be through how we take our clients through evidence in chief, encouraging them to set out this background and proffering an explanation to the jury that they can weigh against drawing that inference.
More than one in ten defendants are Black. In contrast, around 2% of solicitors, 3% of barristers and 4% of magistrates are Black. Most significantly, only 1% of judges are Black.
The courtroom is an overwhelmingly white, male and middle-class space. It can make court proceedings feel especially hostile. I have often witnessed my clients being told off for behaviour like looking at the ground or having their hands in their pockets. Court is an intimidating environment to most people, on top of this, cultural expectations inform how – for example – defendants are expected to show emotion such as remorse. Defendants who do not conform to these expectations can be denied the court’s empathy.
Court proceedings can be especially alienating for defendants who are marginalised in multiple, intersecting ways. A 2017 report by Agenda, the alliance for women and girls at risk, describes the ‘double disadvantage’ experienced by Black and women in the criminal justice system. The women who participated in Agenda’s research did not feel listened to in court, did not understand the process and felt that sentencing decisions were biased. Lawyers should counteract this by showing that they recognise injustices in the system and by being honest about the limits of their own cultural understanding.
Abimbola would like to thank Dr Molly Corlett, Legal Project Support Officer at the Howard League for Penal Reform who worked on this article with her.
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