The row over the Sentencing Council’s proposals to mandate pre-sentencing reports for women, ethnic minorities and people possessing any of a shopping list of protected characteristics has rightly ignited a fierce row over equal justice.
But its opponents should be careful not to conflate a wholehearted defence of the principle of equal justice with a defence of the status quo — and the pursuit of genuinely equal justice might involve much more radical change than merely rejecting the Council’s recommendations or even abolishing it.
It should not be surprising that a system gripped by the a priori belief that it structurally discriminates against certain groups should not only see discrimination where there is none, but fail to see it — or actively suppress people who notice it — where there exists discrimination which runs contrary to their preferred understanding.
We can certainly indict the system on the first charge. The evidence that the justice system affects certain groups “disproportionately” is specious, based on an irrelevant comparison between a given group’s representation in court and its share of the overall population. What matters is their share of the criminal population, as I have explained before:
For the operation of the justice system to be prejudiced against a particular group — and it is the operation of the justice system the Sentencing Council is trying to change — one of two things would need to be true: that either a large number of people of that group are being convicted of crimes they didn’t commit, or that a large number of people outside that group are getting away with crimes they did.
Suffice to say, nobody seems able to lay their hands on such evidence. What does seem to exist, however, is evidence of discrimination in the other direction: that juries exhibit strong tendencies towards racial bias and, in particular, discrimination against white defendants.
In a recent article about the retirement of the celebrated jurist (and, not unrelatedly, constitutional vandal) Lord Denning, David Coates set out how his eventual retirement was precipitated by a fierce backlash over his observation that, in the aftermath of the 1980 St Pauls Riot in Bristol, lawyers for the black defendants had used the right to “exclude” jurors to remove white men from their juries:
Each had three challenges. That is 36 altogether. The accused challenged the white men, but not the coloured men nor the women. Eight were acquitted. On four the jury could not agree. The prosecution proceeded no further. The cost was £500,000. This was, in my opinion, an abuse of the right of challenge, to get a jury of their own choice.
Even in the 1980s, this was not a respectable argument to make in public, even for the most respected of judges; Coates describes how not only did it lead to Denning’s retirement, but the offending passage was even scrubbed from his book, What Next in the Law.
Doubtless the Sentencing Council and its supporters would argue in any event that there was some form or other of racial justice in ensuring that black defendants were, as much as possible, tried by black (or at least, non-white) jurors. One might even argue that such thinking is more true to the origins of the jury system, where the whole point was that the twelve did know the accused and so could, in theory, make a better-informed assessment of the evidence.
But in fact, what evidence we have about structural racial bias in juries points in completely the opposite direction. According to a 2007 Ministry of Justice report, “Diversity and Fairness in the Justice System”, both white and ethnic-minority jurors are consistently more likely to convict white defendants than non-white ones.
That in itself ought to be a powerful rebuke both to the logic behind the Sentencing Council’s proposals and to reckless allegations of a prejudiced justice system, which could have led to juries creating a real bias to try and correct a fictitious one. But the actual numbers reveal something much more concerning:
However, when juror ethnicity and defendant ethnicity were considered together, more significant differences emerged. As Figure 6.4 and Table 6.2 below illustrate, jurors of different ethnic backgrounds reached significantly different verdicts depending on the race of the defendant. BME defendants were less likely to be found guilty than White defendants, whilst the White defendant was much more likely to be found guilty by BME jurors than White jurors. (Page 164)
To give you an idea of what “much more likely” means: on a simulated non-racially-aggravated Actual Bodily Harm charge, BME jurors found a white defendant guilty 71 per cent of the time, and a BME defendant guilty just 17 per cent of the time — this is an experimental setting where no case particulars could justify the split.
The Ministry of Justice dubbed this “same-race leniency” but as Coates noted, this was an absurd bit of Blair-era newspeak: white jurors were actually more likely (albeit not radically more likely) to convict a white defendant than a non-white one.
For whatever reason, government has not seemed inclined to follow up this particular line of enquiry. Certainly, structural bias against white defendants did not seem to be one of the “burning injustices” that so exercised Theresa May when she commissioned the Lammy Review, and the Right Honourable Member for Tottenham didn’t spot it.
But even if the direction of the bias is still an uncomfortable one to discuss in polite society, the mere fact of it has dire implications for the legitimacy and viability of the jury system.
The law is whatever twelve people decide it is
Remember that to true believers in our ancient-and-hallowed common-law wisdom-of-the-ancients legal system, juries are not simply deemed the most effective way of assembling a panel to assess the evidence in a particular case (an argument which in any event cannot withstand the nonsensical process of subjecting 12 laypeople to a multi-year financial fraud trial).
Rather, a jury is the very tip of the spear of the justice system. Whatever the wording of statute or the will of Parliament, in a given courtroom the law is ultimately whatever twelve randomly-selected people decide it is. So-called “jury nullification”, where a defendant is let off because the jury sympathises with them or agrees with their cause, is explicitly defended as part and parcel of the system.
(Its logical counterpart, which we might call “jury damnation” — sending down an innocent person because you don’t like them or oppose their politics — is, typically, not discussed.)
I won’t pretend to personally have ever found that just or sensible. But what might have been defensible as the hallowed tradition of a united national community cannot endure in a society increasingly defined by communitarian division. If some defendants are structurally likely to get more lenient treatment from juries on the basis of the colour of their skin, that is a straightforward and fundamental affront to the principle of equality before the law — and there would be no difficulty accepting that if it were white defendants getting convicted at one fourth the rate of non-white ones.
