The Humanity of Regenerative Law: how pluralism will heal us — Times Award Essay

Critical exposition

Almost thirty years have passed since the racist murder of Stephen Lawrence. The event was a watershed in legal history as it exposed fundamental weaknesses of the criminal justice system (CJS). Six years of campaigning by Baroness Lawrence led to a public inquiry that deemed the Metropolitan Police — the UK’s largest police authority — to be guilty of ‘institutional racism’. Coined in Sir William Macpherson’s report (1999), the term became a cornerstone for anti-racism and contributed to equality reforms like the Race Relations (Amendment) Act (2000). Such reforms represented a paradigm shift in race relations in the UK and helped the country transcend from the race riots of the ’80s and casual bigotry of the ‘no blacks, no dogs, no Irish’ variety. There were rumours that Britain was becoming a post-racial society.

Then in May 2020 came a discordant ring. News of George Floyd’s murder at the hands of US law enforcement reignited global conversations around race relations. Like in the event of Stephen Lawrence, George Floyd’s treatment by the police was an affront to the rule of law. It was a stark reminder that the life of a black man can be typecast as not deserving the same level of respect and protection by officers of the law. Of course, issues of stereotyping and unconscious racial bias are less explicit and commonplace. Nevertheless, we must accept that they still disadvantage litigants in civil, criminal and immigration cases, and hamper the prospects of aspirant lawyers.

Just under 14% of practising barristers and 15% of first-six pupils in 2019 were from BAME backgrounds, according to the Bar Standards Board (BSB). According to the Lammy Review (2017), black people are six times more likely to be stopped and searched by the police than white people. But it is not just the police that appear to be guilty of racial bias. So, too, is the judiciary. The Lammy Review showed that BAME defendants were 240% more likely to be given a prison sentence for a drug offence than white defendants. Black people make up 3% of the general population yet account for 12% of prisoners and 21% of children in custody. All of those black prisoners, including the children, were sent to prison by a judge rather than a jury, which suggests that our judges have a deeper bias issue than our juries.

These disconcerting statistics naturally raise the question: how should the law and the legal profession respond? In summary, I will argue that we must adopt a pluralistic approach to generate a fair consensus. Like the proverbial human cell that renews itself after injury, our generation has the opportunity to restore trust and confidence in the CJS despite its long history of racial bias. I propose we do this in three ways.

Embrace complexity

Lord Chancellor and Secretary of State for Justice, Robert Buckland, rightly asserts that the CJS is ‘not a single entity’ but rather ‘an ecosystem of interconnecting and mutually dependent parts’ (Ministry of Justice, 2020). The complexity of the CJS presents challenges that are impossible to be resolved through any single intervention. As such, we need interdisciplinary conversations and partnerships — from mental health professionals and economists to charities and grassroots communities — and implement a plurality of initiatives. This includes publishing sentencing remarks in the Crown Court in video, audio and written format. This would address the ‘trust deficit’ identified by Lammy by making justice more transparent, pandemic-proof and comprehensible for victims, witnesses and offenders. Digitisation is a costly but worthwhile investment. Second, I recommend compulsory unconscious bias training for the Courts and practitioners. The first step to behavioural change is recognition. By requiring judges and practitioners to confront and reflect on their own biases we can reduce their impact. Another outcome is that judges will learn to adapt their style of communication to suit the different cultures of those appearing in court.

Commit to responsible innovation

It is a truism that navigating the challenges before us will not be feasible if we retain the mindsets and fallacies that created them. Take, for example, the Gangs Violence Matrix (GVM): an intelligence tool used by the Metropolitan Police to identify and risk-assess gang members across London. Two major issues with the GVM are (1) it treats knife crime primarily as an enforcement issue and (2) it conflates criminals and victims of gang-related crimes. (1) is problematic because this approach only deals with the eventual manifestation of the problem rather than the underlying causes. To address disproportionality you must address deprivation. (2) is problematic because the demographics of those on the database do not reflect reality: 78% are black yet black people are responsible for 27% of serious youth crime (Amnesty, 2018). There is no denying that innovation through data collection serves a purpose. The danger, however, is in treating trivial factors like one’s music preferences as emanations of one’s criminality. When datasets are conferred this level of symbolic value, they threaten to pass as incontrovertible proof of causal relationships that are empirically invalid. By deferring agency to the data and elevating it to the level of the symbolic, it has the ability to incriminate unfairly.

Uphold individual sovereignty

Like an infinitely reconfiguring Rubik’s cube, we’re all a puzzle of identities that shifts with time, space, experience and context. Group identity is a useful starting point since many of our experiences are analogous. However, the BAME community is not a monolith. To improve representation in the legal profession, we have to avoid excessive intellectualisation and engage with the intricacies of the individual through contextual recruitment. The core skills that a lawyer requires e.g. communication, teamwork, resilience, are substantively irrelevant to one’s identity group. By providing one with equal opportunities to strengthen these skills through e.g. work experience, scholarships, mentorship, the stereotypes normally associated with one’s group identity have less weight, which reduces inequality of outcome. By working regeneratively, we can change perceptions and create the conditions for individuals and communities to adapt, evolve and thrive.

Word count: 994

References

  1. Amnesty International UK, 2018. Trapped in the Gangs Matrix. [Blog] Available at: <https://www.amnesty.org.uk/trapped-gangs-matrix> [Accessed 1 November 2020].
  2. Bar Standards Board, 2019. Diversity At The Bar. [PDF] Available at: <https://www.barstandardsboard.org.uk/uploads/assets/912f7278-48fc-46df-893503eb729598b8/Diversity-at-the-Bar-2019.pdf> [Accessed 1 November 2020].
  3. Bialasiewicz, L. and Eckes, C., 2020. ‘Individual sovereignty’ in pandemic times — A contradiction in terms?. Political Geography, p.102277.
  4. Byron, A. and Wilkins, T., 2020. Business as unusual: Will the pandemic lead to a lost generation of diverse talent?. [online] Available at: <https://bit.ly/3fNjIf5> [Accessed 1 November 2020].
  5. Macpherson, W., 1999. The Stephen Lawrence Inquiry. [PDF] Available at: <https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/277111/4262.pdf> [Accessed 1 November 2020].
  6. Manji, I., 2019. Don’t Label Me. New York: St Martin’s Press.
  7. Ministry of Justice, 2020. Tackling Racial Disparity In The Criminal Justice System: 2020 Update. [PDF] Available at: <https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/881317/tackling-racial-disparity-cjs-2020.pdf> [Accessed 1 November 2020].
  8. Saini, A., 2019. Superior: The Return Of Race Science. London: 4th Estate.
  9. 2017. The Lammy Review. Available at: <https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/643001/lammy-review-final-report.pdf> [Accessed 1 November 2020].
  10. Warden, J., Ford, R. and Bates, R., 2020. Regenerative futures. RSA, [online] Available at: <https://medium.com/rsa-journal/regenerative-futures-b245c74b4f27> [Accessed 1 November 2020].
  11. Wilson, A., 2020. In Black And White: A Young Barrister’s Story Of Race And Class In A Broken Justice System. London: Octopus Publishing Group.

Dylan Kawende FRSA

Founder @ OmniSpace | UCLxCambridge | Fellow @ Royal Society of Arts | Freshfields and Gray’s Inn Legal Scholar | Sci-fi & Beard EnthusiastFollow

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