By Rachel Hesketh
Last week David Lammy MP published his independent review into the treatment of, and outcomes for, Black, Asian and Minority Ethnic (BAME) individuals in the criminal justice system (CJS). His findings on the extent of disproportionality in the CJS are sobering: England and Wales would have 9,000 fewer prisoners (the equivalent of 12 average-sized prisons) if the prison population was representative of the ethnic composition of the two countries. The overrepresentation of Black people in prisons here is actually greater than in the US.
We were keen to find out what might be driving these figures and help inform thinking on what could be done about it. One possible contributing factor is ‘unconscious bias’ in the CJS – the influence of prejudices that the holder may not even be aware of on the decisions they make. In seeking to understand the role that unconscious biases might be playing, and to contribute to the Lammy Review, we convened an expert roundtable, bringing together members of academic, policy and practice communities to discuss the issues. The discussion centred around three themes: how we might best understand the nature and causes of ‘unconscious’ racial biases, how these biases manifest themselves in the CJS and some possible approaches to mitigating their effects.
Interestingly, the experts we brought together were far from convinced that ‘unconscious’ biases are indeed completely subliminal. Recent work in psychology indicates that people can identify the influence of biases on their behaviour and are able to predict to some extent their scores on implicit attitude tests, while research in neuroscience has established that conscious and unconscious biases are controlled by the same mechanism within the brain. The term ‘unconscious bias’ might also be problematic if it provides a convenient euphemism to avoid talking about racism or encourages people to conclude that they are not responsible for holding racist attitudes and serves to justify discriminatory behaviours. Participants therefore suggested that we use the more general term ‘bias’ to keep the focus on behaviours and outcomes.
So how might racial biases come into play in the CJS? Our roundtable participants saw the judiciary’s lack of diversity as part of the problem; just 7 per cent of court judges and 10 per cent of tribunal judges were BAME in England and Wales in April 2017, and 11 per cent of magistrates identified as BAME. For some judges and magistrates therefore, their only exposure to ethnic minorities may be the defendants who come before them, a skewed exposure that can serve to reinforce pre-existing stereotypes about BAME individuals.
Being in possession of biases is one thing; acting on them is another, and it is harder to act in a discriminatory way if your decisions are being monitored. Problematically, however, the roundtable highlighted that the rulings of magistrates and judges frequently do not face scrutiny, allowing unfair or discriminatory decisions to go unacknowledged and unchallenged. Participants pointed to many reasons for this, in particular that the independence of the judiciary is a highly protected democratic norm that even the media tends to consider off-limits to call into question. On a more practical level, the courts system continues to operate in an old-fashioned and technologically unsophisticated way, meaning much data is not collected systematically or stored electronically and is therefore not available for analysis by researchers.
The experts we convened were clear that increasing the scrutiny and oversight of decision-making in the CJS and raising the diversity of the CJS workforce were important for mitigating the impact of individual biases on outcomes for BAME individuals. These suggestions fed into the Lammy Review’s key recommendations: that more data on sentencing decisions at individual courts be made available, that magistrates’ verdicts be examined in more detail, and that the government resolve to achieve a representative judiciary and magistracy by 2025. These are not radical changes, but they could make a big difference to BAME individuals’ experience and perceptions of criminal justice in England and Wales.
 The recent Daily Mail front-page headline ‘Enemies of the people’, in response to the high court ruling that Britain’s exit from the European Union could not be triggered without a parliamentary vote, provides some counter-evidence to this point, and may indicate that the media is becoming less deferential towards the judiciary.
Rachel Hesketh is a Research Assistant at the Policy Institute.