An investigation into racial bias in court case outcomes in England and Wales
3 November 2021
In her blog, ADR UK Research Fellow Angela Sorsby, describes how she is using de-identified, research-ready data made available via the Data First programme to investigate both ethnic and gender disparities in experiences of the criminal justice system.
‘The racial bias in our justice system is creating a social timebomb’ was a Guardian headline by David Lammy on publication of his review into bias within the justice system, the Lammy Review, published in September 2017.
Research has found that people of minority ethnic backgrounds are overrepresented within the criminal justice system in England and Wales. This is particularly the case for people who are Black, as they are overrepresented at every stage of the criminal justice process except for caution.
The Lammy Review highlights this as well as the significant cost to the taxpayer of approximately £309 million per year. This overrepresentation results in ‘wasted lives’ and generates mistrust in the criminal justice system among ethnic minority groups.
The Black Lives Matter protests in the UK in 2020 were fuelled by these types of long-standing inequalities. What’s more, a lack of trust in the fairness of the criminal justice system among ethnic minority groups may worsen inequality according to the Lammy Review. The review found this lack of trust makes defendants from ethnic minority groups less likely to cooperate with the police or trust the advice of legal aid solicitors, often resulting in a not-guilty plea in the first instance. Consequently, it found White defendants consistently have a higher guilty plea rate compared to defendants from ethnic minority groups. The severity of a sentence increases if a defendant pleads not guilty and is later found to be guilty.
Furthermore, defendants from ethnic minority groups are more likely than White defendants to opt for a jury trial in the Crown Court rather than a trial in the magistrates’ court. The Lammy Review suggests that this may be due to ethnic minority defendants feeling that they will not receive a fair hearing from magistrates. Although the Crown Court has a lower conviction rate, being convicted in the Crown Court can lead to a harsher sentence.
Lammy points out there is a tendency to dismiss differences between ethnic groups by suggesting that any differences may be due to other factors, such as the age profile of defendants, rather than due to ethnicity itself. Available statistics on this subject don’t generally control for these other factors.
What are the aims and methods of the project?
The de-identified magistrates’ and Crown Court datasets made available via the Data First programme give access to case level administrative data on criminal court use. They include information on things such as age, type of offence, whether there are co-defendants, and more.
I will use regression analysis to establish whether ethnic disparities remain after taking account of things such as age and offence type. In terms of court case outcomes, I will look at whether the case results in a conviction and, where convicted, the severity of the sentence. This will provide more insight into the relationship between the lower conviction rate of defendants from ethnic minority groups and differences between ethnic groups in average sentence length. In addition, I will use mediation analysis to assess the impact of pleading not guilty on the severity of the sentence and the extent to which this explains differences between ethnic groups in sentence severity.
As there are indications that defendants from ethnic minority backgrounds are more likely to elect to be tried in the Crown Court, I will examine whether there are differences between the courts in terms of outcomes. This will provide more information on the consequences of electing for trial in the Crown Court.
To establish whether people from particular ethnic groups are repeatedly acquitted, I will examine the extent of repeated prosecutions of individuals using aggregate data.
In conducting all my analyses, I will establish whether the findings are the same or different for men and women.
What is the potential impact of this work?
I am liaising closely with the Ministry of Justice, the Prison Reform Trust, the Sentencing Council and other third sector and government stakeholders to make sure the analysis is as policy relevant as possible. The analysis will enable policy decisions to be better targeted at reducing disparities by exploring likely explanations for differences between ethnic groups It will also contribute to the principle of ‘explain or reform’ recommended in the Lammy Review by providing further information on the drivers of overrepresentation.