By Jessica Wilkinson
In discussions about representation in the UK criminal justice system, our focus often turns to those holding positions of authority and influence, including judges, law enforcement officers, and policymakers. It might appear perplexing to claim that ethnic minorities are overrepresented in the UK criminal justice system when considering the statistics. According to data from 2022, the police force predominantly comprises white individuals, with only a small percentage representing black and other minority groups.[1] Likewise, those working within the judicial system portray minimal minority representation.[2] However, beneath this underrepresentation exists an overrepresentation of ethnic minorities in the UK justice system, albeit not in positions of authority and decision-making but rather on the receiving end of the system.
This essay will delve into the concerning overrepresentation of ethnic minorities in the UK's criminal justice system. It will examine the differential treatment experienced by the BAME community throughout the entire justice process, spanning from stop-and-search encounters to rehabilitation efforts. The exploration extends to identifying potential contributing factors, including the underrepresentation of ethnic minorities in authoritative roles and the existence of biases within the system. Subsequently, the discussion will shift towards plausible solutions, drawing insights from the Lammy[3] report. Emphasising systemic reform, the essay will underscore the need for comprehensive education to address and counteract biases and greater crime prevention. Furthermore, it will advocate for innovative measures aimed at bolstering the representation of ethnic minorities within the justice system.
The release of the Lammy Review[4] in 2017 shed light on various aspects of overrepresentation in the UK justice system, particularly within the prison system. It highlighted that despite constituting just 14% of the population, BAME (Black, Asian, and Minority Ethnic) individuals make up a disproportionately high 25% of the prison population.[5] This overrepresentation is not limited to the prison system but is spread across the entirety of the criminal justice system from stop and search to rehabilitation.
Discrimination and prejudice, particularly within policing, creates disparities when looking at the stop and search rates. The high rates of 'stop and search' procedures among BAME individuals, in contrast to their White counterparts, point to this issue. In March 2022, there were 27.2 stop-and-searches for every 1,000 black people compared to 5.6 for every 1,000 white people. Similarly, in March 2022, there were 9.4 stop-and-searches for every 1,000 people with mixed ethnicity and 8.9 for every 1,000 Asian people.[6] This illustrates that the rate of stop-and-searches for minority groups far exceeds those conducted on white people, which in turn increases their likelihood of arrest. The Lammy Review suggested that the high proportion of stop-and-searches for ethnic minorities is rooted in discrimination and racial profiling. In particular, the main goal of stop-and-searches is often concerning trying to crack down on gang activity, and as addressed by the Lammy review, there is a society-wide bias that minorities are more likely to be gang-affiliated, and the police force is not immune to this.[7] Thus, this could offer up some of an explanation as to why minorities are more likely to be stopped and in turn arrested.
When looking at arrest statistics, minorities are significantly more likely to be arrested than their white counterparts. In March 2021, black people were over three times as likely to be arrested as white people, with 29 arrests for every 1,000 black people compared to 9 arrests for every 1,000 white people.[8] This alarming difference provides insight into why there may be such high numbers of minorities being processed through the system. Realities such as this contribute to the overwhelming lack of trust that minorities have in the justice system, especially the police force. Only 64% of black people had confidence in their local police force in 2020 compared to 74% of white people,[9] and this has been on a downward trend for minorities. We will see later how this increasing distrust of the system can have an adverse effect on how minorities are treated within the system.
The disparities exposed by the Lammy Review in the UK criminal justice system, particularly affecting Black, Asian, and Minority Ethnic (BAME) individuals, raise profound concerns regarding sentencing. Black women, post-charging, face a 63% higher likelihood of proceeding to the Crown Court compared to their white counterparts, with Asian women experiencing an even more pronounced disparity at 108%.[10] This trajectory often results in harsher penalties due to the higher sentence power of these courts. A 2017 study underscores these challenges, revealing a 40% 'not guilty' plea rate among BAME defendants in comparison to a 31% rate for white defendants.[11] This again can result in harsher punishments when often an admittance of guilt can result in a lighter sentence.
We can see that many of these issues do materialise into harsher sentences for minorities. Within drug offenses, the odds of receiving a prison sentence were approximately 240% higher for BAME offenders compared to white offenders.[12] This is a shockingly high disproportion and reinforces the point that there is an issue with the treatment of BAME communities within the justice system. Even within crime areas where there is little difference in sentencing outcomes, such as sexual crimes, we can see from the issues previously addressed that even if the sentencing process itself is fair, the lead-up to it can be disproportionately unfavourable towards minorities and impact the sentencing outcome, such as a case being heard in a court with a higher sentencing power.
The issues continue after sentencing, with many minorities reporting mistreatment within prisons and there being a discrepancy between rehabilitation opportunities for minorities versus white people. BAME inmates are statistically more likely to experience negative experiences according to a study detailing the prison experience between 2016-17. For example, 11% of male ethnic minorities reported being victimised by staff due to their race or ethnic origin compared to only 2% for white people.[13] Even when removing racially charged violence, BAME men still reported more violence at 36% in comparison to only 29% of white people reporting the same thing; the data for women follows this trend.[14]These statistics become even more alarming when considering the fact that a lot of minorities are reluctant to report these infractions, with significantly lower response rates from those that identify as BAME when it came to BAME men only 1,513 responded whereas 4,866 white people responded. There was a similar disproportion in responses when it came to women. Therefore, this shows that minorities are not only having negative experiences but also do not feel comfortable enough to vocalise them. In addition, it could also mean there is a possibility that the number of minorities that experience a negative experience in prison is significantly higher. We also see issues with rehabilitation opportunities for those within prison who are BAME. For example, 46% of BAME have access to prison jobs compared to 56% of white people having access; whites also had more access to time outside of their cell and offender behaviour programmes.[15] This may explain why the reoffending rate for minorities is significantly high alongside other factors. In particular, BAME individuals, especially young people, exhibit higher rates of reoffending. For instance, the youth reoffending rate is 46% for those recorded as Black, 38% for those recorded as White, 38% for those recorded as another ethnic group, and 33% for those recorded as Asian.[16]
In order to fully understand the issue at hand and potential solutions, it is important to address in greater detail some of the potential causes for the overrepresentation of ethnic minorities in the criminal justice system. The underrepresentation of minorities in law enforcement and those working within the legal system, notably among lawyers, plays a pivotal role. Statistics reveal that in 2022 only 18% of lawyers in firms are of BAME background.[17] This underrepresentation is more glaring in the courts, with a significant gap between the backgrounds of defendants and judges.[18]
Moreover, efforts both before and after imprisonment could also play a role in the issue. In particular, the high youth offender rates within the BAME community may reflect a disengagement with these communities and a lack of effective measures in place to steer minorities away from crime. This issue persists after imprisonment with inadequate rehabilitation measures within the system that perpetuate these issues and result in reoffending. This multifaceted problem requires a holistic approach to address its root causes some of which will be touched upon in this essay.
The Lammy Review has offered a comprehensive set of 35 recommendations, emphasising the need for drastic reforms to address these issues systematically.[19] Lammy addresses the need to educate those within the justice system to combat prejudices and improve processes while working to diversify the workforce. The review also suggests introducing more race-blind elements into the justice system to mitigate biases and ensure fair treatment. Lammy also draws attention to the need for more data and transparency, as some vital information, such as religion, is not collected and used in statistics, hindering a comprehensive analysis, and understanding of representation issues. Recommendations are also made on the need to try and increase representation in law enforcement and those working in the justice system such as looking into why there is a lack of applications from those within the BAME community for jobs within the system and looking at near-miss applications from those within the BAME community for position within the system such as judges. Finally, it raises the need for more effective engagement with BAME communities especially the youth to reduce the risk of offending and reoffending. Although this is only a summary of some of the recommendations, overall Lammy advocates for the implementation of a range of systemic changes to eliminate biases and disparities acknowledging that there is no simple fix for this issue.
In conclusion, the issue of the overrepresentation of ethnic minorities in the UK justice system is deep-seated and multifaceted, demanding a comprehensive effort to address systemic barriers and biases. It is vital to work towards a more equitable and fair justice system in the UK that ensures equal treatment for all its citizens. Statistics provide clear evidence of an enduring problem within the UK's justice system. The issues discussed and the data underscores the disparity in treatment and outcomes for BAME individuals within the system. This is a complex issue and requires a holistic approach to address the systemic barriers and biases that perpetuate these disparities. Ultimately, the goal is to create a more equitable and fair justice system in the UK, where all individuals are treated fairly and without bias.
[1] Home Office, 'Police Workforce' (GOVUK, 26 May 2023) <https://www.ethnicity-facts-figures.service.gov.uk/workforce-and-business/workforce-diversity/police-workforce> accessed 13 October 2023 [2] Ministry of Justice, 'Diversity of the judiciary: Legal professions, new appointments and current post-holders - 2022 Statistics' (GOVUK, 13 July 2023) < https://www.gov.uk/government/statistics/diversity-of-the-judiciary-2022-statistics/diversity-of-the-judiciary-legal-professions-new-appointments-and-current-post-holders-2022-statistics> accessed 13 October 2023 [3] David Lammy, 'The Lammy Review ' (GOVUK, 8 September 2017) <https://assets.publishing.service.gov.uk/media/5a82009040f0b62305b91f49/lammy-review-final-report.pdf> accessed 13 October 2023 [4] David Lammy, 'The Lammy Review ' (GOVUK, 8 September 2017) <https://assets.publishing.service.gov.uk/media/5a82009040f0b62305b91f49/lammy-review-final-report.pdf> accessed 13 October 2023 [5] Ministry of Justice and National Offender Management Service, 'NOMS annual offender equalities report: 2015 to 2016' (GOVUK, 24 November 2016) <https://www.gov.uk/government/statistics/noms-annual-offender-equalities-report-2015-to-2016> accessed 13 October 2023 [6] Home Office, 'Stop and Search ' (GOVUK, 10 August 2023) <https://www.ethnicity-facts-figures.service.gov.uk/crime-justice-and-the-law/policing/stop-and-search/latest> accessed 13 October 2023 [7] Ministry of Justice, 'Black, Asian and Minority Ethnic disproportionality in the Criminal Justice System in England and Wales' (GOVUK, 13 January 2020) <https://www.gov.uk/government/publications/black-asian-and-minority-ethnic-disproportionality-in-the-criminal-justice-system-in-england-and-wales> accessed 16 November 2016 [8] Home Office, 'Arrests ' (GOVUK, 12 May 2022) <https://www.ethnicity-facts-figures.service.gov.uk/crime-justice-and-the-law/policing/number-of-arrests/latest> accessed 13 October 2023 [9] Office for National Statistics, 'Confidence in the local police ' (GOVUK, 12 May 2021) <https://www.ethnicity-facts-figures.service.gov.uk/crime-justice-and-the-law/policing/confidence-in-the-local-police/latest> accessed 13 October 2023 [10] Ministry of Justice, 'Black, Asian and Minority Ethnic disproportionality in the Criminal Justice System in England and Wales' (GOVUK, 16 November 2016) <https://www.gov.uk/government/publications/black-asian-and-minority-ethnic-disproportionality-in-the-criminal-justice-system-in-england-and-wales> accessed 13 October 2023 [11] Cheryl Thomas, 'Ethnicity and the Fairness of Jury Trials in England and Wales 2006-2014' [2017] (11) Criminal Law Review 860-876 [12] Ministry of Justice, 'Associations between ethnic background and being sentenced to prison in the Crown Court in England and Wales in 2015' (GOVUK, 16 November 2016) <https://www.gov.uk/government/statistics/associations-between-ethnic-background-and-being-sentenced-to-prison-in-the-crown-court-in-england-and-wales-in-2015> accessed 13 October 2023 [13] Chief Inspector of Prisons, 'HM Chief Inspector of Prisons for England and Wales Annual Report 2016–17' (GOVUK, 18 July 2017)<https://www.justiceinspectorates.gov.uk/hmiprisons/wp-content/uploads/sites/4/2017/07/HMIP-AR_2016-17_CONTENT_11-07-17-WEB.pdf> accessed 13 October 2023 [14] Chief Inspector of Prisons, 'HM Chief Inspector of Prisons for England and Wales Annual Report 2016–17' (GOVUK, 18 July 2017)<https://www.justiceinspectorates.gov.uk/hmiprisons/wp-content/uploads/sites/4/2017/07/HMIP-AR_2016-17_CONTENT_11-07-17-WEB.pdf> accessed 13 October 2023 [15] Chief Inspector of Prisons, 'HM Chief Inspector of Prisons for England and Wales Annual Report 2016–17' (GOVUK, 18 July 2017)<https://www.justiceinspectorates.gov.uk/hmiprisons/wp-content/uploads/sites/4/2017/07/HMIP-AR_2016-17_CONTENT_11-07-17-WEB.pdf> accessed 13 October 2023 [16] Ministry of Justice, HM Prison and Probation Service, Youth Custody Service, and Youth Justice Board for England and Wales, 'Youth Justice Statistics 2014/15 England and Wales' (GOVUK, 28 January 2016) <https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/495708/youth-justice-statistics-2014-to-2015.pdf> accessed 13 October 2023 [17] Solicitors Regulation Authority, 'How diverse is the solicitors' profession?' (Solicitors Regulation Authority, 27 June 2023)<https://www.sra.org.uk/sra/equality-diversity/diversity-profession/diverse-legal-profession/> accessed 13 October 2023 [18] Ministry of Justice, 'Judges and non-legal members of the judiciary' (GOVUK, 13 January 2020) <https://www.ethnicity-facts-figures.service.gov.uk/workforce-and-business/workforce-diversity/judges-and-non-legal-members-of-courts-and-tribunals-in-the-workforce/latest> accessed 13 October 2023 [19] David Lammy, 'The Lammy Review ' (GOVUK, 8 September 2017) <https://assets.publishing.service.gov.uk/media/5a82009040f0b62305b91f49/lammy-review-final-report.pdf> accessed 13 October 2023