Recent statistics from the Ministry of Justice and NGOs show that children and young people from BAME backgrounds remain disproportionately overrepresented in the criminal justice system.
The MoJ’s statistics for 2016/2017 show that BAME young people (those aged between 10 and 17) made up almost 45% of the custodial population. 54% of BAME young people made up the average population of those remanded in custody pending trial or sentence. The Howard League for Penal Reform assessed that BAME young people accounted for 60% of all child arrests by the Met in the year to November 2017 – in an area with a 40% BAME population.
Demography plays its part in these statistics. BAME young people, including first or second generation immigrants, are more likely to come from backgrounds involving inadequate housing, poverty, school exclusions and addictions: the social and economic conditions which can often give rise to crime. But there’s another side to the story beyond these embarrassingly widespread economic inequalities: the continued influence of institutional racism in all decision-making processes in the criminal justice system.
The Lammy Review demanded an evidence-based explanation for the over-representation of BAME young people in the criminal justice system. Why are BAME young people disproportionately susceptible to being stopped and searched, arrested, convicted and imprisoned? The government’s response? A 28-page document including an admission that the ‘disparity has widened [without a] systematic inquiry into what might be driving it’.
BAME youth continue to be disproportionately targeted by police’s wide-ranging stop and search powers. The powers are not totally unfettered; the most commonly used powers require ‘reasonable grounds’ for suspicion, although this is somewhat of a moveable feast. The unclarity of what constitutes ‘reasonable grounds’ for lawful police action translates into a culture of targeting BAME people at a disproportionate rate.
The government’s recent statistics show that between 2016/2017, Black people were 8 times more likely to be stopped and searched than White people; and 14 times more likely to be stopped and searched under so-called ‘suspicion-less’ powers. These numbers aren’t coincidental. They point to endemic racism.
Much of the civil unrest in August 2011, sparked by the killing of Mark Duggan, was explicitly directed as a protest against police mistreatment of BAME people. It resulted in around 3000 arrests. The Conservative government quickly tried to suppress people’s demand for accountability. It associated the unrest and its participants not with the cumulative effects of economic downturn and police victimisation, but with gang-related crimes.
David Cameron promised a ‘concerted, all-out war on gangs and gang culture’. His method? Launching the Met Gangs Violence Matrix in 2012. This operation involves a collaboration between the Home Office, local authorities and other agencies to ‘combat’ gang-related crimes by intelligence gathering and data sharing.The intelligence gathered has different uses, one of which is to guide where police exercise their stop and search powers. Informed by the intelligence, police patrol particular postcodes, neighbourhoods and estates; and disproportionately target Black people.
According to findings from Amnesty International’s report: 78% of those on the Matrix’s list are Black and 9% are other ethnic minorities. 72% of those flagged for gang related violence are Black. 40% of those flagged have no police intelligence linking them to violence in the past two years, and 35% have never committed a serious offence. 80% are between the ages of 12 and 24, with 15% being under 12.
Muslims, Sikhs and other non-White young people have been subject to ‘suspicion-less’ stop and searches under anti-terrorism legislation. Earlier this year, the West Yorkshire Police were afforded new powers to stop individuals to obtain their fingerprints on the spot if the relevant criteria are met, to check them against roughly 12 million criminal and immigration databases.
The House of Commons held a debate on 23 May 2018 about the disproportionate use of stop and search powers against BAME individuals. Conservative MP, Philip Davies, tried to justify these stark disparities using 2016 murder statistics. Black people, he explained, “are more likely to be murderers [and] are more likely to use a knife or a sharp instrument to kill”. He went on: “The fact is that for certain categories of offence – murder, drug offences, and so on – Black people and people from ethnic minorities are more likely to be guilty than White people. That is a fact.” Little is said about the crimes of their White counterparts, and the socio-economic factors which can exacerbate social conflict. Davies played heavily on an old racist trope – linking being BAME to violent criminality, and using that to justify heavy-handed policing. The cycle continues. In 2017, statistics confirmed that the Metropolitan Police disproportionately use force against black people in London – from handcuffs to CS gas to life-threatening force.
In 1999, the Macpherson report came to ‘a clear core conclusion of racist stereotyping’ in the criminal justice system. 20 years on, the disproportionate use of stop and search powers against BAME young people, racial profiling and discrimination are still overtly supported by some in the government.
Stop and searches are just the start. Taking drugs-related incidents as an example, positive searches often result in charges such as possession or possession with intent to supply illegal drugs. In the year 2016/2017, 34% of Black offenders and 28% of Asian offenders were convicted for drug offences, while the rate for White offenders stood at 15%. For all sorts of offences, BAME young people are much more likely to be arrested and charged than their White counterparts with these kinds of non-violent offences.
Indeed, in drugs cases, the police and Crown Prosecution Service (CPS) should be alive to the real potential that the encountered young person has been trafficked by a criminal gang to transport and distribute illegal drugs. The National Crime Agency said, in 2017, 65% of forces reported this form of child exploitation.
If any such trafficking indicators are present, the young person should be referred to the National Referral Mechanism for a two-stage assessment on whether or not they have been trafficked. A prosecution should not proceed before the NRM’s final decision.
If the young person is a trafficking victim, the CPS would need to reconsider whether there’s a public interest in the prosecution. (A trafficked young person has a statutory defence if a sufficient link can be drawn between their being trafficked and their committing the offence, and a reasonable person with the relevant characteristics in the same situation would have committed the offence.)
If taken, these steps would satisfy, at the most basic level, the UK’s compliance with its domestic and international obligations to prevent human trafficking and re-trafficking. Too often, no such referrals are made. In these situations, a BAME child carrying drugs is a cause for further BAME young people who may be trafficking victims to continue being prosecuted, convicted, and deprived of state protection.
The influence of institutional racism also shows itself in relation to charging decisions around so-called ‘gang-related’ crimes. Intitiatives like that Matrix operation, which already targets BAME youth, are encouraged to get results: AKA to prosecute and convict as many young people as possible. In the Matrix Operation, successful prosecutions are one of the performance indicators of the operation. According to Amnesty International, evidence suggests that the CPS often uses intelligence gathered in the Operation, and is supplied with Operation-sourced information before making charging decisions. This creates the real possibility that some of the CPS’ charging decisions are directly or indirectly based on data gathered by an inherently racist operation. It is also unclear how effectively, if at all, the CPS scrutinises the content, credibility and reliability of the data and it sources. What matters are the results: how many BAME young people they can put behind bars in order to appear ‘tough on crime’.
The MoJ’s statistics from 2016 show that once, convicted, Black, Asian and mixed ethnicity young people were more likely than White young people to receive custodial sentences for a range of specific offence groups by 71%, 86% and 35% respectively.
This should come as little surprise. While BAME groups are overrepresented in the statistics for stop and searches, arrests, convictions and custodial sentences; they are under-represented in the judicial system. Judicial Diversity Statistics for 2017 show that at 01 April 2017, only 7% of the 83% of the judges who declared their ethnicities were BAME.
Some changes have been introduced; revised sentencing guidelines for youths came into force on 01 June 2017, and the guidelines for weapons and knife related offences came into force on 01 June 2018. They outline the overarching principles of the youth justice system: to prevent re-offending and to uphold young people’s welfare. They give sentencing judges and magistrates scope to consider the young person’s disadvantaged socio-economic and familial backgrounds, and negative experiences of authority and discrimination as mitigating factors.
But will these guidelines be meaningfully considered, particularly given the majority-white make-up of the people making those decisions? It can’t be denied that some executive and judicial officials are still consciously or subconsciously racially biased. Will they deliver equal treatment under the law when the systems which bring people before a judge in the first place are deeply racialised?
Xenophobia, discrimination and intolerance aimed at BAME groups continue to lurk around in our criminal justice system – whether through the prejudice of individuals, or the structural effects of poverty and marginalisation. UK justice is not blind, and certainly not colour-blind.