Bringing anti-racism into the courtroom
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Louise Heath
Lockdown has been difficult for everyone. But, frankly, it has been harder for those from Black and Asian communities. As confirmed in the ethnicity section of the government’s review, Disparities in the risk and outcomes of COVID-19 (Public Health England, 2 June 2020), when compared with white people, Black males are 4.2 times more likely to die from a COVID-19-related death (page 40); people of Bangladeshi ethnicity have around twice the risk; and other ethnicities are at between 10 and 50 per cent higher risk of death (page 45). BAME community members are more likely to live in overcrowded housing, in deprived areas, and to have jobs with a higher risk of exposure (page 40). We are also more likely to be born abroad, which can add barriers to accessing welfare, for example, through cultural and language differences. It reads as a list of the manifestations of structural racism.
Then, against that background, those from ethnic minority communities have been disproportionately targeted by the police during lockdown: we are 54 per cent more likely to be fined under the new regulations; the first conviction under the Coronavirus Act 2020 was against a Black woman, Marie Dinou, and was quickly shown to be wrongful; we’ve seen the police fail to take action in the death of Belly Mujinga; we watched Desmond Mombeyarara being tasered by Manchester police in front of his young son; we've seen Met police officers take selfies next to two murdered Black women.
All of which has been compounded by American news: seeing and hearing of Breonna Taylor being shot eight times by the police in her own home with no prosecutions being brought; Ahmaud Arbery being killed while jogging in his hometown; Christian Cooper having a white woman, Amy Cooper, fake terror and attempt to call the police on him while he was birdwatching in Central Park; and the terrifying video of George Floyd being killed while an officer kneeled on his neck for 8 minutes 46 seconds.
We’ve had to take all of this in while being unable to hug anyone from outside our households. For many, therefore, the cry of Black Lives Matter has not been a choice, but an outpouring of pain. Things simply have to change and the burden of the work needed to effect that must be shared. These are not our problems; these are problems for everyone. For too long, I have participated in a criminal justice system that fails to reflect on what it does to further racism. We often criticise policing, but what do we do in court?
Criminal behaviour order applications are regularly made referencing points like the number of times a defendant has been stopped and searched, without contemplating the fact that Black people are 40 times more likely to be targeted in this way by police. Gang association is often the subject of bad character applications, even though the gangs matrix and categorisation of gang ‘intelligence’ is heavily criticised by very well-respected human rights charities (for example, Amnesty’s Trapped in the matrix report (May 2018)). Defendants with no previous convictions are regularly accused of gang association due to being in the back of a YouTube video; or their older brother, cousin or friends being associated with gangs – friends they’ve made from being in the same school or from the same estate.
Many times, I’ve seen defendants being reprimanded for looking at the ground or having their hands in their pockets when addressing the court, without recognition that these are young people intimidated by an unfamiliar and intimidatingly pale and stale environment. I’ve seen cases prosecuted on the basis of identification evidence that simply categorises a person as ‘IC3’ without going into further detail about skin tone or shade. How often do we see the use of school records for ‘poor behaviour’ forming the basis of cross-examination of witnesses and defendants to show propensity towards negative behaviour, without recognition of the fact that Black children are over-punished in the school system? How many times have we seen a police officer say they’ve stopped someone (Black) because they can smell cannabis when the case is nothing to do with drugs, yet the rest of that officer’s evidence is still relied on, as though that is acceptable?
If we as a profession were committed to being anti-racist, wouldn’t there be more hesitation before even agreeing to make these applications or to rely on such evidence? Wouldn’t we read more and do more to be socially aware of the realities of life for those that appear in our courts at a disproportionately high rate? Wouldn’t we question the system more often and be less willing to go along with practices simply because ‘that’s the way it is’?
We could start by absorbing the contents of the many public reports setting out in Black and white the experiences of people from ethnic minority communities: The Scarman Report (November 1981); The Macpherson Report (February 1999); Report of the Independent Review of Deaths and Serious Incidents in Police Custody (January 2017); The Lammy Review: final report (September 2017); The Race Disparity Audit (October 2017, revised March 2018); The Timpson Review of School Exclusion (May 2019); The Windrush Lessons Learned Review (March 2020); and Disparities in the risk and outcomes of COVID-19 (June 2020).
The legacy of this time has to be a more informed and considerate criminal justice system, and for that to happen, we need to get to work.

About the author(s)

Description: Abimbola Johnson - author
Abimbola Johnson is a barrister at 25 Bedford Row chambers specialising in criminal and regulatory defence. She was the winner of the 2018 Diversity...