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The Tortoise Take: a wasted year

The Tortoise Take: a wasted year

Friday 30 April 2021

The first of a series on racial justice: almost 12 months since the murder of George Floyd, there has been far too little real change in the UK law and order system


The first anniversary of George Floyd’s murder on 25 May 2020 is fast approaching. Last week, former officer Derek Chauvin was convicted in Hennepin County, Minnesota, of all three counts against him: second-degree unintentional murder, third-degree murder and second-degree manslaughter. 

The horrific video of Floyd’s death – eight minutes and 46 seconds in which the impassive Chauvin choked him with his knee – inspired hundreds of protest rallies around the world, globalising the message of Black Lives Matter and galvanising unprecedented outrage on social media. 

Morally energising as this surge of conscience was, the practical consequences so far have been disappointing. In the UK, the populist right and the supporters of Black Lives Matter have engaged in a vacuous battle of cultural performance, in which more attention has been paid to silencing and “cancelling” supposedly unpalatable voices, than to the practical challenges of racial injustice.

There has also been much too great a focus upon the inequities of American law enforcement, rather than the counterpart perils and disparities experienced by Black Britons.

True, the fact that UK police officers are mostly unarmed means that people of colour in this country do not live in fear of being shot by bobbies on the beat. Yet we have our own deeply ingrained problems of distrust, disparity and injustice to deal with (and it is as well to remember that, proportionately, Black people are more than twice as likely to die in police custody than white people, and that the riots of 2011 were triggered by the police shooting of Mark Duggan, a mixed-race man, in Tottenham, north London). 

There are no grounds whatsoever for self-congratulation. As Hashi Mohamed wrote in a Slow View last week, the recent report by the government’s race commission, chaired by Dr Tony Sewell, was badly briefed, widely discredited and (crucially) threatens “the direction of travel upon which we were set by the late Sir William Macpherson” in his 1999 inquiry into the murder of teenager Stephen Lawrence.

This is the first in a series of Tortoise Takes on practical measures that can be taken to address the problem of racial injustice in this country, ranging from inequalities in the NHS, mental health, the aftermath of the Windrush scandal, and socio-economic disparities. 

We start with three clear examples of steps to address inequities in the criminal justice system:

The judiciary

Without significant representation at all levels of the judiciary and magistracy, people of colour will continue to distrust the criminal justice system – and will have grounds for doing so. The rule of law is a cultural as well as a jurisprudential phenomenon, and cultural change in institutions depends to a great extent upon who holds power, and is seen to hold power.

To date, the government has conspicuously failed to act upon the 16th recommendation of David Lammy 2017 review into the criminal justice system: that ministers “should set a clear, national target to achieve a representative judiciary and magistracy by 2025”. With four years to go before the report’s deadline, there is still a mountain to climb.

According to the most recent government data, only four per cent of judges at High Court level and above are Black or from ethnic minorities. More worryingly, candidates for judicial appointment from such backgrounds account for 25 per cent of applications – but only 12 per cent of those recommended for appointment.

In a letter to the Sunday Times on 25 April, eight judges who officiate in crown, county and tribunal courts called for a parliamentary inquiry into “discrimination, bullying and leadership structures within the judiciary, and of the system for appointment and promotion of judges,” and accused the Judicial Appointments Commission (JAC) of preserving a system that favours applicants from “prosperous traditional backgrounds” who are “well connected”.

The most charitable gloss upon this pitiful performance is that it reflects inertia and inaction rather than bad faith. But – with an increasingly diverse pool of legal talent in this country – the JAC has no excuse not to improve its performance, and radically so.

Robert Buckland, the Justice Secretary, should introduce targets – as Lammy proposed four years ago – with the firm intention of 20 per cent ethnic minority representation on the bench by 2025. 

Parole and prison officers

A common failure of imagination is to think of the criminal justice system primarily with reference to the judiciary and the police forces. In practice, those that are convicted of offences spend much more time with prison and parole officers.

Only 3.4 per cent of prison officers are Black or of ethnic minority background, compared to 27 per cent of the prison population itself. The number of ethnic minority individuals in senior leadership roles in the prison estate is so vanishingly small that it is not listed in the government’s ordinary published statistics. Across the board, the government must set itself a target of 20 per cent ethnic minority representation by 2025.

Again, this reflects a failure of institutional will and tenacity. It may well be true that those from ethnic minority backgrounds have reservations about careers in agencies that have historically treated their communities badly. Yet that’s all the more reason for energy to be expended in attracting them to the prison service and setting closely monitored targets for those engaged in recruitment.

As for the parole service: about 14 per cent of its staff are presently drawn from ethnic minority backgrounds and – again – that should rise to 20 per cent by 2025.

An additional structural problem facing the service has been its semi-privatisation by Chris Grayling – an unmitigated public policy disaster in which the management of large numbers of released offenders has been contracted out to the conveyor-belt supervision of private companies.

In March, Her Majesty’s Inspectorate of Probation found that the service’s emphasis upon racial equality – such as it was – had declined considerably since the Grayling reforms of 2014.

The reversal of the Grayling reforms should feature prominently in the next Queen’s Speech.

Stop-and-search

If racial inequality in the criminal justice system has a front line, this is it – as is repeatedly demonstrated by high-profile incidents such as the mistaken pulling-over of Labour MP Dawn Butler in August, and the handcuffing and search of athlete Bianca Williams and her partner in October.

In the words of Baroness Doreen Lawrence, Stephen’s mother, last year: “If a person cannot drive around in their car without being asked, ‘Where did you get the money from to buy this car?’, it is ludicrous in today’s society.”

Black people are 18 times more likely than white people to be searched under Section 60 of the Criminal Justice and Public Order Act 1994. According to data from 2019-20, they are also 5.7 times more likely to be subjected to force, including the use of tasers.

As Her Majesty’s Inspectorate of Constabulary and Fire & Rescue Services reported in February: “In too many forces, officers and staff are not being provided with the skills they need to understand how they come across in everyday interactions. Nor are they being shown how they can build rapport to help prevent conflict and escalation in order to secure public cooperation and reduce the need for conflict management, de-escalation and the use of force.”

It is certainly true that the reflex call for more “education and training” is often made all too lazily in response to public policy problems. In this case, however, it is warranted. Far too many forces do no more than give officers “e-training” – a euphemism for quickly consumed YouTube videos – in the hope that they will be cured of unconscious bias and learn in an hour or two how to defuse a potentially racially-charged interaction. This is a hopelessly inadequate way of dealing with the institutional racism identified by Macpherson in his 1999 inquiry.

In February, the inspectorate very politely called for training to be more  “skills-based than topic-based”. What this means is that police officers need to be robustly instructed in the street-level practicalities of stop-and-search more than they need lectures on the political philosophy of diversity, intersectionality and “white fragility”. The practical application of stop-and-search powers is what matters, not the underpinning sociology.

What’s more, the case for the use of Body Worn Video (BWV) cameras is now unanswerable. The forensic value of video evidence was graphically demonstrated by the centrality in the Chauvin trial of the cellphone recording of George Floyd’s murder by the passerby, Darnella Frazier, who was only 17 at the time. 

BWV is already widely deployed by UK police forces, but its use should now be made mandatory by primary legislation. There also needs to be much greater clarity about when video devices should be activated – the present rules vary by region – and the assumption should be that the recorders are switched on except in specified circumstances (meal breaks, long car journeys, and so on).

The public’s entitlement to see video content affecting them under Right to Access Requests should also be clearer and more swiftly enacted. Transparency breeds trust.

These are only three of many areas in which racial inequality in the criminal justice system could be radically improved. The binding strategy should be a remorseless emphasis upon the practical, the detailed, the measurable, the granular. 

For a year, the populist right and social justice movements have fought a war of words, a stand-off of performative outrage. By the second anniversary of George Floyd’s death, there should be a healthy inventory of practical achievement in the UK to report. Enough sound and fury: it is time to act. 

Dissenting voices

“The term [‘institutional racism’] is now being liberally used, and often to describe any circumstances in which differences in outcomes between racial and ethnic groups exist in an institution, without evidence to support such claims. The Commission therefore feels that misapplying the term racism has diluted its credibility, and thus undermined the seriousness of racism, where it does exist, in contemporary Britain. Where ‘institutional racism’ is used too casually as an explanatory tool, it can also lead to insufficient consideration of other factors which are also known to drive such differences in outcomes.” Commission on Race and Ethnic Disparities, March 2020

“… yet again, near the point of victory everything seemed to sour. Just as things appeared better than ever before, the rhetoric began to suggest that things had never been worse. Suddenly – after most of us had hoped it had become a non-issue – everything seemed to have become about race.” Douglas Murray, The Madness of Crowds: Gender, Race and Identity (2019)

“The ‘institutional racism’ prattle would melt if it were ever subjected to the enlightened rationalism that is supposed to be the university’s reason for being. But that is Western culture, and our leaders don’t do Western culture anymore.
What do they do? Marxism and voodoo, mainly. When you cannot cite hard evidence for the cosmic propositions you swear by, it can only be because we’re beset by ‘false consciousness’ that prevents us from perceiving how whiteness and West-ness have corrupted us.” Andrew C. McCarthy, National Review, September 19 2020