David Lammy’s Review of Criminal Justice: My Talk on Sentencing in 1993

I felt that I had moved 25 years back in time when I read today:

“The Labour MP for Tottenham, David Lammy, is to head a new government review into discrimination against black and ethnic minority people (BAME) in the criminal justice system.

Announcing the appointment of Lammy, the son of Guyanese parents who was brought up near the Broadwater Farm estate prime minister David Cameron said the review would address ‘possible sentencing and prosecutorial disparity’. He added:

‘If you’re black, you’re more likely to be in a prison cell than studying at a top university. And if you’re black it seems you’re more likely to be sentenced to custody for a crime than if you’re white. We should investigate why this is and how we can end this possible discrimination.’

At present BAME individuals make up over a quarter of prisoners, yet are only 14% of the wider population of England and Wales.

Latest official figures also show they make up a disproportionate amount of Crown Court defendants (24%), and those who are found guilty are more likely to receive custodial sentences than white offenders (61% compared to 56%).

The review will address issues arising from the point of arrest onwards, including through the court system, in prisons and during rehabilitation in the community, in order to identify areas for reform and examples of good practice from the UK and beyond.

Lammy, who was the first black Briton to study at Harvard and went on to become a barrister, has been asked to report back in spring 2017 with recommendations to address the problem.”

Sadly, if his terms of reference only begin when an alleged offender is at “the point of arrest”, he will get nowhere near to identifying the main causes of the current disparities.  But at least it is a start, and as a former junior minister in what is now the Ministry of Justice, David Lammy will be far too wise not to be very well aware of the fact that the disparities in treatment begin long before the “point of arrest”.

I will have more to say on this topic as his review gathers pace (how much by way of skilled and monetary resources is he being given to underpin  the massively important work he has undertaken?) but for the time being I will limit myself to republishing a lecture I gave on these issues in March 1993 to a very mixed ability audience (in one corner, the good and the great of Bristol society; in the other the top scholars in the science of sentencing, drawn from all over the world, who were attending a residential symposium organised by professor Rod Morgan on sentencing grids, sentencing tariffs and other phenomena of that ilk).

I was at that time concerned with the importance of judicial leadership from the top, a matter which was marked symbolically half a year later when the Lord Chief Justice chaired my Kapila Lecture, which is already on this site.  A lot of the attitudes we encountered in those days on the Bench are now past history (I hope), but I suspect that these concluding comments of mine are as relevant today as they were then:

“When we published our first annual report last autumn, we set out in two pages what we considered to be the aims and objectives to which training in this field should be directed, and the context in which the training must take place if it is to have any hope of success.  For example, in addition to clarity about the objectives, there must be total commitment from those at the top of an organisation of the need for this training, an uncluttered understanding of its purposes, a proper ring-fenced budget and sufficient resources allocated to the training task, and clear lines of communication between those responsible for the training and those who are responsible for leading the relevant sections of the judiciary and the magistracy and the tribunalcy, so that they all know what is going on and approve it.  Those who have much more experience in race relations than I have were good enough to tell me that the clear principles and objectives we had set out for training the judiciary and the magistracy should be studied by everybody in public and private sector institutions who has responsibility for cross-cultural training within their organisations.

The show is, therefore, still on the road, although we still have a very long way to go. I said that I would finish with a few comments which might have a wider relevance in the context of this sentencing symposium. What I have been talking about is modern standards of judicial education in a very fast-moving world. I have no doubt that some older members of the judiciary were very badly bruised by much of what they have read and heard in the media about the performance of the judiciary over the last three or four years, in the same way that I remember my own father, a conspicuously honest and hard-working Home Secretary, was badly bruised by the abuse which hit him in the early 1960s when society’s attitudes to authority were altering and younger people were impatient for change. If people think it is important to have an independent judiciary which is sensitive to changes in society and to people’s changing aspirations, then I believe that investment in modern judicial education has got to be taken infinitely more seriously than it has ever been taken before in this country.”

How much has the training budget of the Judicial College been cut in the last ten years?  Ditto with the police, the prosecutors and the probation service (or what is left of it)? These deep-seated and challenging problems cannot be solved by platitudes from the top accompanied by a lack of resources in the engine-room.

 

Sentencing and the Ethnic Minorities

The Colston Lecture, given as an after dinner speech during the Colston International Sentencing Symposium at the University of Bristol on 5th April 1993

As you may know, Section 95 of our new Criminal Justice Act imposes on the Home Secretary, a member of the executive, a quite new duty to communicate information at least once a year directly to judges and magistrates with criminal justice responsibilities which may help them to perform their duty to avoid discrimination on the grounds of race or gender or other improper ground.

Tonight I will start by telling you something about the message contained in research and statistical evidence about the treatment of people from ethnic minorities by the courts of England and Wales. I will then say something about the steps which the Judicial Studies Board, with the advice of my new Advisory Committee, is taking to address these issues. And I will end by saying a few things, in an individual capacity and not on behalf of the Board, which I have joined only recently, which may be of some relevance to the proceedings of this Symposium as a whole.

First, some statistics. The total ethnic minority population of Great Britain is now just over 3 million, or 5.5% of the total. The proportion in some of our inner cities is very much higher, particularly among the young. Over half of them were born here and know no other home. The main groups are the 840,000 Indians, who came from India and East Africa, 500,000 Afro-Caribbeans, 475,000 Pakistanis, 200,000 black Africans, 160,000 Bangladeshis (a rapidly increasing group), the same number of Chinese, and over 500,000 who are miscellaneously categorised as “other”. Adult settlement is now virtually at an end, apart from family members, and most of the recent large increases can be attributed to new births in this country.

There are some striking differences both between these groups and within them. In contrast to the Indians, who by and large come from professional, trading and entrepreneurial families, whose success rate in employment and education in this country is every bit as good as their white counterparts, the Pakistanis come for the most part from a very poor part of northern Pakistan, and the Bangladeshis come from poorer backgrounds still: their difficulties are compounded by the fact that the language of the native province of most of them, Sylheti, has no written form. Both the Pakistanis and Bangladeshis are facing formidable difficulties both in education and in getting jobs.

The Afro-Caribbeans fall somewhere between these two extremes, although the unemployment figures for young Afro-Caribbean males between the ages of 16 and 24 make grim reading.

In 1963, the year when I was called to the Bar, the comparative figures would have been tiny, and the scene in our larger city courts today is quite unrecognisable when I compare it with the scenes with which I was familiar when I first started to practise thirty years ago. This enormous change, with people from so many different and diverse cultures coming to settle in a country within a single generation, was bound to create formidable challenges for the institutions of that country, and the judiciary and the magistracy have just as much to learn as those in many other British institutions if they are to maintain their reputation for treating everybody fairly. As a former chairman of the Bar’s Race Relations Committee, I am bound to comment from my experiences then that those who are responsible for our schools and universities have also got a great deal of learning to do in this area of equality of treatment.

It was, therefore, perhaps, inevitable that research and statistics in the criminal justice system would throw up some messages which make fairly uncomfortable reading as our criminal justice agencies struggled to accommodate people from different cultures, with habits and religions and languages and, often, mannerisms of body language, with which they were unfamiliar and with which they did not immediately empathise. The burning of Brixton in 1981 was an early outward and visible sign of the difficulties of the issues we were going to have to tackle; and all through the 1980s there have been signs that the police, the probation service, the prison service, the magistracy and the judiciary have all got a lot of learning to do if Lord Scarman’s warnings are to be heeded properly. He wrote about the damage to the social fabric caused by racial disadvantage, and we need to go on taking active and imaginative steps now to ensure that his words are not going to be true prophecies of really appalling things to come in terms of the tensions which arise when vulnerable people perceive that they are receiving unfair or unequal treatment by those in authority over them.

Relevant prison statistics have been published since 1985.  Most of the figures I will give you do not distinguish between U.K. residents from ethnic minorities and visitors to this country who are in custody, such as convicted drug couriers. The total figures also lump together prisoners on remand and inmates in young offender institutions with sentenced prisoners. In the age groups which give rise to most concern, between the ages of 15 and 25, the proportion of the ethnic minority population to the population as a whole is believed to be just over 6%. In theory, one might expect to find an ethnic minority prison population of 6%, with a small weighting to include visitors from overseas. In fact the proportion in some young offender institutions is over 35%, and the Governor of Brixton Prison told me when I visited his prison last September that the average daily count there varies between 35% and 40%. The Chief Inspector of Prisons said in 1991 that one young Afro-Caribbean in ten could expect to be incarcerated in a prison service institution before he is 21, in contrast to a figure of 1 in 25 for whites.

Official statistics show that the proportion of the prison population from ethnic minorities rose steadily from 12.6% in 1985 to 16.1% at the end of 1990. A breakdown in these figures shows that most of the rise could be attributed to a 2 1/2% rise in the number of prisoners in the largest category, those of Afro-Caribbean origin. The proportion of female prisoners who come from ethnic minorities also rose steadily during the same period, to a top figure of 30%, half of whom were convicted of drug offences. These statistics are all fairly raw. The proportions for both males and females went down slightly in 1991, and I know a lot of work is now being done to understand better what lies behind the raw figures.

I first became interested in these matters in 1990. I remember when I discussed them then at seminars with judges from other comparable countries, France, Germany and the Netherlands, Canada, Australia and the United States, they all observed that the position in their own countries was very similar and was equally worrying. On the other hand, those who attended the conference at Edinburgh that summer on Race and Gender Issues in the Criminal Justice System will remember that this was a phenomenon seen only in those countries in which white people were the dominant majority, and that the new countries of the Commonwealth had experienced no similar disparities, so far as their own minorities, including white people, were concerned.

When one turned to the research studies, they produced a confusing picture. Either the sample was too small, or the scale of the problems involved in dividing out all the significant variables apart from ethnic origin was beyond the resources of the researcher. Three Crown Court studies, published in 1982, 1984 and 1988, purported to give Crown Court sentencing a relatively clean bill of health, but I remember counselling caution about these studies three years ago, either because they were conducted a very long time ago or because, in relation to the 1988 study, the sample was tiny and was spread across 180 Crown Court centres, some of whom had relatively few ethnic minority defendants.

At other seminars I have taken up time summarising the results of some of these studies, and for the last twelve months we have been supplying a 16-page summary I have prepared of all of them to all the judges and recorders who attend the Board’s residential training seminars. Time does not allow for this this evening.

The main messages I picked up from these studies were that odd things had been happening in a number of magistrates’ courts; that the probation service was not always providing the courts with as wide or well-informed a range of community sentencing options for ethnic minority offenders; that some courts were less ready to accept their recommendations, when they were made, in relation to ethnic minority offenders; that a number of ethnic minority offenders appeared to move up the sentencing tariff to custody more rapidly than their white counterparts; and that some unexplained differential treatment appeared to be occurring in some courts, not in relation to those sentenced to 18 months’ custody or more, but to an intermediate range where a lot depended on the fine-tuned use of discretion by the individual sentencer. In addition, black people’s greater tendency to opt for trial by jury and to contest their guilt at trial meant that when sentenced by a crown court judge they were being sentenced by a court with greater powers which could not give them credit for a plea of guilty.

Last December the results of a very large research study of crown court sentencing were published. This had been conducted by Dr Roger Hood of Oxford University on behalf of the Commission for Racial Equality. It covered the outcome of all the cases involving ethnic minority defendants in five crown court centres in the West Midlands in 1989. The results for this cohort was matched, so far as males were concerned, against the results of a comparable, randomly selected cohort of white defendants sentenced by the same courts in that period: all the 447 female cases, including 90 from ethnic minorities, were also included in the study.

Dr Hood found that his research confirmed to a very substantial degree the earlier findings that the over-representation of Afro-Caribbeans in the prison system was a result of their over-representation among those convicted of crime and sentenced in the Crown Courts. 80% of this over-representation could be attributed to conviction rates and the characteristics of the offences concerned. Of the remaining 20%, two-thirds was attributable to the loss of a discount for a plea of guilty, and the remaining 7% was unexplained even after 15 different variables had been taken into account during a very complex multivariate statistical analysis. His second main finding was that once all other factors had been taken into account, black male defendants in the West Midlands had a 5% to 8% greater probability of receiving a custodial sentence than their white male counterparts, and that substantial differences in sentencing practices between different judges led to these discrepancies being considerably higher in relation to some individual sentencers.

Once again, it was in cases of medium seriousness that the unexplained differences mainly arose. All the unexplained differential was now arising in the case of black defendants over the age of 21, and it occurred solely among black offenders who were unemployed. At one centre, which consisted of four courts in widely dispersed locations, the unexplained differential was considerably higher than the average, and a major part of this occurred when black defendants were convicted with one or more other black co-defendants. Overall, unexplained differential sentencing was more marked, on average, among part-time crown court recorders than among full-time circuit judges.

The results of a study like this create great difficulties and great challenges for those who are responsible for leading and for training the members of an independent judiciary. The difficulties are even more acute because Dr Hood is not at liberty to reveal to us the names of any of the judges or recorders whose sentencing practices appeared to be out of line, and also because the local judges were forbidden to talk to him, much as some of them wished to do so, during the course of his study. For example, I have heard anecdotally that there was a plethora of very frightening “steaming” incidents by groups of black youths in the court centre which encountered most criticism, and this was tackled by tough deterrent sentences for what on paper might not appear to be particularly serious offences. Dr Hood did not have access to any of the judges’ sentencing remarks, and I have no idea whether this sort of evidence would have made any difference to his findings. They do, however, make a difference to the willingness of local judges to accept his findings, although all, I think, would acknowledge that this report raises serious issues which need to be addressed.

This is where the Judicial Studies Board comes in. For eighteen months I have chaired a new ethnic minorities advisory committee of the Board, composed of 5 white, 6 black and 7 Asian members. Only three of us are judges and three others are justices of the peace, and we have brought together into one place a group of men and women, lawyers and lay alike, of vast experience in the dynamics of cross-cultural relations in this country. Some of them are, in other contexts, very experienced trainers. We have not only over 600 full-time and 1,200 part-time judges as our potential clientele. It also includes nearly eighty stipendiary magistrates, 29,000 lay magistrates and over 20,000 who sit in administrative tribunals.

So far our work has been fairly low profile. The whole committee insisted at the outset that it was not going to go up front to tell people doing difficult jobs how to do them better.  They needed to learn a lot about the culture in which judges and magistrates did their work, and our first priorities were to do a lot of careful thinking about the aims and objectives of training in this novel field, to analyse the training needs of judges and magistrates, and in the meantime to raise awareness, without hectoring, that there were useful and practical things which could be picked up by listening carefully to what we had to say.

For this reason, the bulk of the work in addressing judges and magistrates has so far fallen on me, usually accompanied by one or two other members of the committee. Since September 1991 I have addressed 23 residential seminars organised by the Board, and Patricia Scotland QC has addressed two more. I have also addressed 15 conferences of magistrates, magistrates’ clerks or mixed criminal justice audiences, and I have bookings with magistrates at Gloucester, Coventry, Bexley, Teesside and Redbridge, as well as six more judicial seminars and three multi-disciplinary conferences, between now and mid-June.

The theme of these talks now runs on familiar tracks. Administering justice fairly to people from different cultures to one’s own is difficult, and there are seven main things people need to remember. Use of language (don’t call people “coloured” or “half-caste”); practical advice about names and naming systems; practical advice about oaths and oath-taking; warnings about salient features of different cultures (like the significance of the extended family in many cultures); the dangers of misunderstandings over the spoken word; the dangers of misunderstandings over body-language; and the need to avoid offensive stereotypical generalisations. These talks have been supplemented by an increasing amount of practical written advice about the subjects covered in the talks, together with summaries of up to date statistics and research evidence.

Soon we will be moving into a second experimental phase, when my talk will be supplemented by a session conducted by an experienced trainer in this field, when judges and recorders will discuss case-material in small groups. This will on the whole be directed to illustrations of typical scenes when things are going off the rails, in the eyes of ethnic minority participants, all unbeknownst to most white people in court, and experienced facilitators drawn from ethnic minorities will be taking part in each of the groups. If this goes as well as the earlier talks have gone, we hope to build on this new model, so far as possible, in our future work.

When we published our first annual report last autumn, we set out in two pages what we considered to be the aims and objectives to which training in this field should be directed, and the context in which the training must take place if it is to have any hope of success. For example, in addition to clarity about the objectives, there must be total commitment from those at the top of an organisation of the need for this training, an uncluttered understanding of its purposes, a proper ring-fenced budget and sufficient resources allocated to the training task, and clear lines of communication between those responsible for the training and those who are responsible for leading the relevant sections of the judiciary and the magistracy and the tribunalcy, so that they all know what is going on and approve it. Those who have much more experience in race relations than I have were good enough to tell me that the clear principles and objectives we had set out for training the judiciary and the magistracy should be studied by everybody in public and private sector institutions who has responsibility for cross-cultural training within their organisations.

The show is, therefore, still on the road, although we still have a very long way to go. I said that I would finish with a few comments which might have a wider relevance in the context of this sentencing symposium. What I have been talking about is modern standards of judicial education in a very fast-moving world. I have no doubt that some older members of the judiciary were very badly bruised by much of what they have read and heard in the media about the performance of the judiciary over the last three or four years, in the same way that I remember my own father, a conspicuously honest and hard-working Home Secretary, was badly bruised by the abuse which hit him in the early 1960s when society’s attitudes to authority were altering and younger people were impatient for change. If people think it is important to have an independent judiciary which is sensitive to changes in society and to people’s changing aspirations, then I believe that investment in modern judicial education has got to be taken infinitely more seriously than it has ever been taken before in this country.

I have just come back from a week in Canada, studying with my vice-chairman the arrangements which have been made for judicial education in Ottawa and in Vancouver. Our week finished with a three-day conference, founded on all the best modern training techniques – videos and visual aids and role-play assisted by actors, and participative groupwork and so on – for 300 of the 330 provincial court judges in the four provinces and two territories which comprise Western Canada, all led by their chief judges. I was told in Ottawa that the annual amount spent on sending federal court judges to conferences like this Symposium had gone up from a million Canadian dollars to nearly three million dollars in the last five years, and that two or three federal judges are picked each year for a six-month sabbatical in a university or similar institution of learning, with great mutual benefit both to the judge and to the institute which receives him or her.

In Ottawa I also watched a race relations training video which will soon be sent to all judges which was made with the help of a grant from the federal government of a hundred and twenty-five thousand dollars, and the contact we saw at the sponsoring department was lavish in his praise for the quality of the work being done by Canadian judicial trainers in this field.

In addition to their two main judicial institutes each being situated cheek by jowl with the faculty of law in a major university, one of them is preparing short training modules for judges all over Canada on subjects as diverse as gender equality and stress management, computers for judges and family violence, caseflow management, criminal procedure and sentencing, and, quite apart from having the facility to attend conferences like this at public expense, Canadian judges have access to up to eight days of high quality refresher training each year, in contrast to the three days of residential training every five years, supplemented by one local training day each year, which is all that is provided for their English counterparts.

I realise that I am talking about a change of culture towards judicial education, but the prevailing culture is changing fast. I realise, too, that I am talking about a very substantial increase in investment on the judiciary, because there are not nearly enough judges: a third of our Crown Court trials are conducted by part-time judges, and every day a judge spends out of his court for training adds to the appalling backlog of cases awaiting trial. But if a country is concerned with the quality of the justice provided in its courts, I would suggest, from my experience of my last four and a half years as a high court judge, quite apart from my experiences a fortnight ago, that money spent by their official training board on making judges think and in opening their minds to the thinking of others may be much better invested than shackling them with the paraphernalia of externally imposed sentencing commissions and sentencing councils presumably appointed by the political party in power for the time being.

I believe that the story of my advisory committee may be worth careful study, because this has shown quite clearly that an advisory committee of outside experts, picked by a judicial institution and chaired by a high court judge, poses none of the supposed threats to the independence of the judiciary which are posed by a number of different models, and because it is operating within the culture of the judiciary itself it is far more likely to effect long-term change.

I am grateful to the organisers of this conference for giving me this opportunity of talking to you. As you will have realised, I regard judging as far too important to be left to the judges by themselves, but I believe that the debate about finding the best way to help us do our extremely difficult job has still got a long way to go. I am pleased to have been given this chance of contributing to the process.

 

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