14:02, September 08 393 0 theguardian.com

2017-09-08 14:02:03
The Guardian view on race and criminal justice: inequality is unfair to all

Standing on Downing Street, in her first public statement as prime minister, Theresa May vowed to fight injustice. If you are black, she noted specifically, you are treated more harshly by the criminal justice system than if you are white. This was hardly a revelation. Over decades, the inequity evident from arrest through to sentencing has been well documented. But David Lammy’s comprehensive review of the treatment of black, Asian and minority ethnic (BAME) individuals in the criminal justice system in England and Wales is what one supporter calls “an excuse-remover”. Though the picture it paints is complex, it reveals differential treatment as well as outcomes. Commissioned by Mrs May’s predecessor, David Cameron, it gives her the opportunity – and obligation – to turn her words into deeds.

The number of young people offending, reoffending and entering custody has fallen dramatically, but the BAME proportion on each measure is rising. The proportion of BAME youth prisoners increased from 25% to 41% in the decade to 2016. For every 100 white women handed custodial sentences at crown courts for drug offences, 227 black women were jailed. Men from some BAME communities are more likely than white men to be charged with rape and domestic violence offences. And while the review focuses on race, Mr Lammy points out that similar issues affect white working-class men, women and children.

Many of the causes lie outside the criminal justice system. Disparities in school exclusions cannot be levelled by police or probation workers. Communities have an important role to play. Even so, the to-do list for the system is long and daunting. Recommendations include increasing transparency and improving data, in particular monitoring Gypsies, Roma and Travellers – clearly overrepresented in youth custody – and religious identity; Muslims make up 15% of the prison population, but just 5% of the general population.

Equally necessary is to tackle the pervasive lack of trust in the system among BAME people, which discourages them from pleading guilty, losing the possibility of reduced sentences, and may have ongoing impacts: there is evidence that prisoners who believe they are treated fairly are less likely to reoffend on release. The review calls for targets to improve the diversity of judges and senior prison staff. It is hard for a community to have faith when they are in the dock but rarely on the bench; when they sit behind bars but rarely hold the keys.

Mr Lammy goes further. First, he calls for deferred prosecution, allowing low-level offenders to receive rehabilitation before entering their pleas. Those who successfully completed programmes would see their charges dropped; those who did not would still face prosecution. A pilot scheme in the West Midlands found that violent offenders were 35% less likely to reoffend. Second, he says offenders should be able to apply for their criminal records to be sealed. If they could prove that they had reformed, they would no longer need to disclose their records and employers would not be able to access them, though they would still exist. Their prospects of finding work would be much improved; their risks of reoffending diminished.

Though Mr Lammy himself describes these moves as radical, they are not without precedent. They have been used elsewhere; and the principles behind them are not wholly alien to our own justice system. The conditional caution system already allows prosecution to be deferred but enforced if offenders prove non-compliant.

These are not easy sells politically. But this is not just about treating suspects and offenders fairly, although that is both a duty in itself and the underpinning of our justice system. It is also about protecting the community at large. The lie that prison works has long since been disproved – especially when an already grim system is deteriorating fast and not one young offenders’ institution has been judged safe for its inmates. It is striking that, in the West Midlands pilot, victims favoured deferred prosecution over the usual approach, believing it more likely to stop reoffending. And it is encouraging that the director of public prosecutions says it should be considered.

The greatest danger in present circumstances is not governmental cowardice but distraction. Our society cannot afford to keep waiting. Many of these issues have been raised repeatedly. They must now be addressed.