REPRESENTATION IN THE CRIMINAL JUSTICE SYSTEM

REPRESENTATION

The Cambridge Dictionary defines ‘representation’ as "the fact of including different types of people, for example in films, politics, or sport, so that all different groups are represented".

In the context of criminal justice, the inclusion of people from all racial and ethnic social groups is critical for ensuring that everyone who comes into contact with the system experiences fairness, justice and equality.

In the CJS in England and Wales, though, there is a glaring paradox on the subject of representation.

OVER-REPRESENTATION

In his 2017 review, David Lammy found that “despite making up just 14% of the population, BAME men and women make up 25% of prisoners, while over 40% of young people in custody are from BAME backgrounds”. 

So whilst there is a distinct over-representation of people from BAME communities in the Criminal Justice System (CJS) as prisoners and defendants compared with the general population, there is a marked lack of representation among those who hold power within it, such as the judiciary, magistracy, court lawyers, etc. 

LACK OF REPRESENTATION

In comparison to the 14% of the general population who identified as BAME in the 2011 census, Lammy found that staff identifying as BAME accounted for only 6% of police officers, 6% of prison officers, 7% of the judiciary and 11% of magistrates. It is crucial that this divide be understood and corrected. Allowing the situation to remain as it is leaves too much room for unconscious bias, racism and misunderstandings between different population groups to affect the process of justice.

THE NEED FOR CHANGE

Such a lack of representation among those who hold power in the criminal justice system poses a threat to justice itself.

Without diversity and inclusion at every stage of criminal justice, that is representative of the general population, the system risks the continued loss of trust, respect and confidence of each community it is there to serve.

Improving representation is crucial if the culture of ‘us and them’ and the trust deficit between people of ethnic minorities and the justice system is to be corrected. There are racial disparities in leadership positions at every level of the CJS. Below is a closer look at the picture at its highest level, the judiciary, and amongst the general public, juries.

A CASE IN POINT: THE JUDICIARY

In January 2020, a law-reform and human rights organisation, JUSTICE, conducted an update on their 2017 “Increasing Judicial Diversity” report. In it, they acknowledge some improvement in representation among judges, such as the increase in BAME applicants to the judiciary since 2017. However, the fact that this has not translated into actual appointments of BAME applicants demonstrates that the rate of change is too slow.

Further up the system, JUSTICE reports that there are no BAME Supreme Court judges, nor have there ever been. As such, “the senior judiciary remains predominantly made up of white, male, able-bodied and privately educated barristers”. This is problematic on multiple levels.

Alongside a list of recommendations for correcting their troubling findings, JUSTICE’s report emphasises why they must be heeded urgently:

“[Judges] can take away people’s liberty, their children, their homes and their rights. That this power is currently held by such an unrepresentative cohort of judges – however meritorious – is a matter for acute public concern”.

A CASE IN POINT: jury verdicts

Following the Lammy Review, two female criminal justice organisations, 'Women in Prison' and 'Agenda', were asked to elevate the voices of women within the report. They published “Double Disadvantage”, sharing personal accounts of women’s experience in courts, prison and on release. One section focuses on the impact of diversity on jury verdicts:

“Participants were asked if they felt that trial by jury was a fair way of deciding a case and whether all people are treated equally by juries. [...] None of the women thought it was a fair way of deciding if someone is guilty or not. The women who had been tried by jury raised concerns about the gender, ethnic and age make-up of their juries and in particular concerns that they were dominated by older, white males. Indeed, some said that they had all-male juries. The women felt that older men, who were not of their ethnic background, would have less understanding about their lives and may be subconsciously biased against them.

‘I had a pretty old jury and I was thinking well I’m young and I’m black, hmm … What are my chances?’”

What’s being done to tackle racial disparity?

Since the Lammy Review, which set out many recommendations directly relating to achieving greater representation, there has been an increase in scrutiny and accountability from the Ministry of Justice. In February 2020 the MOJ published a report entitled “Tackling Racial Disparity in the Criminal Justice System”.

Secretary of State for Justice, Robert Buckland, writes: “It is crucial, if everyone is to have confidence in our system, that the people working in it reflect the diversity of Britain today. [...] Ultimately, racial disparities do not just hold back individuals in our society, they prevent us as a nation from realising our true collective potential".

The report shows the “positive steps” being taken towards the targets set out in the Lammy Review, but progress is slow and not holistic enough.

LAMMY’S RECOMMENDATIONS

Some of the recommendations made in the report relating to greater representation in the CJS are as follows:

"3: The default should be for the Ministry of Justice (MoJ) and CJS agencies to publish all datasets held on ethnicity, while protecting the privacy of individuals. Each time the Race Disparity Audit exercise is repeated, the CJS should aim to improve the quality and quantity of datasets made available to the public."

"4: If CJS agencies cannot provide an evidence-based explanation for apparent disparities between ethnic groups then reforms should be introduced to address those disparities. This principle of ‘explain or reform’ should apply to every CJS institution."

"16: The government should set a clear, national target to achieve a representative judiciary and magistracy by 2025. It should then report to Parliament with progress against this target biennially."

"28: The prison system should be expected to recruit in similar proportions to the country as a whole. Leaders of prisons with diverse prisoner populations should be held particularly responsible for achieving this when their performance is evaluated."

"29: The prison service should set public targets for moving a cadre of BAME staff into leadership positions over the next five years."

what next?

Continue putting pressure on central and local government through emails to keep CJS representation on their agenda.

Diversify the media and information you absorb to ensure your own influences are representative and inclusive of social groups outside of your own.

Register to vote — individuals are selected for jury duty from the electoral register, we must do what we can for juries to be diverse and representative too.

Some Articles and Reports about Representation in the CJS:

What it’s like being a Black Lawyer working in the UK’s Criminal Justice System in 2020 by Abimbola Johnson, published by ELLE online magazine (2020)

Is the Judiciary getting less diverse? by Lester Holloway for the Runnymede Trust (2016)

Increasing Judicial Diversity: An Update by JUSTICE (2020)

Tackling Racial Disparity in the Criminal Justice System: 2020 Update by the Ministry of Justice (2020)