Rough justice for ethnic minorities – diversity deficit, or budget deficit?

Labour MP David Lammy, has now completed his commission report into the treatment of black, asian and minority ethnic ('BAME') individuals in the Criminal Justice System.

The report, published this week, makes 35 recommendations chiefly aimed at achieving better representation, as well as a better perception of representation, for BAME defendants, and indeed all parties to criminal cases. Many of the recommendations are perfectly reasonable and well-thought-out.  As usual, the elephant in the room is how to properly arrange and fund all of them in an ongoing era of Ministry of Justice austerity.

Mr Lammy also comes to certain conclusions which may cause offence to hard-working lawyers, and other findings which are plainly controversial.  In general, although his report is well-intentioned, it might well be argued that it too easily sees complex structural problems through the more simplistic prism of ethnicity.

Mr Lammy finds that the disproportionate representation of BAME people among defendants has resulted in a ’chronic trust deficit’.  The average sentences applied to BAME defendants are higher, often because of a lack of faith/trust in receiving a lesser sentence for an early guilty plea:-

“The consistent differences in plea decisions between BAME and White defendants highlight a fundamental challenge for the CJS: a trust deficit in many BAME communities. Many BAME defendants trust neither the advice of solicitors paid for by the government, nor that the CJS will deliver on the promise of less punitive treatment in exchange for prompt admissions on guilt.”

This passage may well cause controversy.  The implication is that “solicitors paid for by the government”, i.e. legal aid solicitors, find it harder to properly gain the trust of their BAME clients particularly if they are not BAME lawyers themselves.

Firstly, if this is really an ethnicity issue and not a more general funding issue, then why single out legal aid lawyers, rather than all lawyers? Is it really suggested that there is trust problem is mainly caused by being perceived as the “State-appointed lawyer”? If so, is that perception really only held by BAME defendants?

Secondly, criminal legal aid practitioners may well respond that they are (i) a highly diverse ethnic group in themselves and (ii) the implication that clients cannot objectively judge the skill and hard graft of the lawyer regardless of her skin colour is simply wrong. Legal aid lawyers know full well that criminal clients (and often, their families) are often smart, rational connoisseurs in good lawyers. This point came across strongly in the recent struggles over “client choice” versus the “too thick to pick” mentality, with client choice winning in fairly short order. Making this same suggestion, but now through the prism of race, is both untrue and unhelpful.

It might indeed be argued, in general, that Mr Lammy’s report has a tendency to construe what are fundamental structural and financial problems in the criminal justice system only in the context of race and ethnicity, such as the following:

“The problem is not a lack of legal advice. Black, Asian and Mixed ethnic defendants are all more likely to request legal advice in police station … Instead, it is that many BAME defendants neither trust the advice that they are given, nor believe they will receive a fair hearing from magistrates. In some cases, this means defendants pleading not guilty and then electing for a jury trial at the Crown Court, rather than be tried in a Magistrate’s [sic] Court, despite the higher sentencing powers available at the Crown Court. In focus groups conducted by the charity Catch 22, researchers identified a lack of trust in legal aid-funded solicitors among both White and BAME offenders as a particular problem. Many questioned the motives of the legal aid solicitors, who were often viewed as representing ‘the system’ rather than their clients’ interests. Offenders commonly believed that solicitors did not have the time or the capacity to advise them effectively in any case”. 

“I’ve spoken to a lot of people where they have had situations where it almost feels like the duty legal team has taken the opportunity to go to trial, when the individual would have been much better off pleading guilty, the odds were stacked against them, but from a solicitor’s point of view there’s obviously financial benefit for them to continue to trial.” BAME prisoner, HMP Thameside

These passages simply cite real problems, but then assume ethnicity as being the cause. This leap is made sometimes because the defendant perceived that race was the main reason for his unjust outcome. Of course, race and cultural difference, inadequate communication between solicitor and client, or even sometimes a basic lack of patience, may indeed have been a problem. However, two far bigger problems here are inadequate time and inadequate funding. The limited time and funding available that legal aid solicitors have, in which to try to consistently achieve professionally compliant work, is nigh-on impossible. If unjust or unfair outcomes follow, it is perhaps understandable that some clients might perceive this is because of something fundamental about themselves e.g. their race. In actual fact, it is far more likely to be something about the environment in which the legal aid lawyer is now forced to work, with one hand tied behind their back.

In relation to the judiciary, a similar point can be made:

“A fundamental source of mistrust in the CJS among BAME communities is the lack of diversity among those who wield power within it”. 

Of course, judicial diversity should be, and is, encouraged. But this is not the same as saying these perceived grievances can primarily be cured by having a more diverse bench. What about the old-fashioned ideas, perhaps court lists being properly managed, judges having more time to read case papers in advance, and local courts not being amalgamated into sausage factories churning through ‘outcomes’ rather than justice?

Once again, it is understandable that a defendant on the wrong end of rough justice might feel the result was linked to his own inherent characteristics such as ethnicity. The perception of a fair system is important. But a responsible report should also address the difference between perception and reality. Sadly, placing too much emphasis on ethnicity lets the declining organisation and funding of the entire criminal justice system off the hook. In this way, it is a shame that Mr Lammy’s report, though commendable is many areas, focuses too much on the diversity deficit - at the expense of the whopping great financial one.