Children and Young People in Custody (Part 1): Entry into the youth justice system Contents

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6Racial Disproportionality

66.Racial disproportionality in the youth justice system has been raised repeatedly throughout this inquiry. In this chapter we examine disproportionate rates of change within the youth justice population, racial disparity in diversion from formal criminal justice processing and the use of remand for children from a Black, Asian and Minority Ethnic (BAME) background.

The youth justice population

67.The number of children entering the system has continued to fall, but has not done so at the same rate for children of different ethnicities. The YJB state that:

“The number of White children receiving a caution or conviction decreased by 79% in 10 years, compared with a 55% decrease for BAME children over the same period. These different rates of decrease mean that the proportion of BAME children in the YJS is almost double what is was 10 years previously (27% in the latest year compared with 14% 10 years ago)”.81

68.The latest statistics show that the proportion of Black children cautioned or sentenced has been increasing over the last 10 years, from 6% in the year ending March 2010, to 11% in the year ending March 2019. The proportion of Black children given a sentence or caution is almost three times higher than the proportion of Black children in the 10–17 population, who make up 4% of the population. Children from a Mixed ethnic background are also over-represented compared to the general 10–17 population - they account for 8% of those receiving a caution or sentence compared to 4% of the general 10–17 population.82

69.Offences committed are given a gravity score, depending on their seriousness, between 1 and 8. Table 1 shows the proportion of proven offences by gravity score band and demographic characteristics.

Table 1: Proportion of proven offences by gravity score band and demographic characteristics, England and Wales, year ending March 2019

Source: Youth Justice Board, Youth Justice Statistics 2018/1983

70.As of May 2020, 51.9% of the youth custodial population were from a BAME background (29% Black, 11.7% Mixed, and 11.2% Asian and Other84), compared to 27% in 2009.85 The general 10–17 population is 82% White, 4% Black, 4% Mixed and 10% Asian and Other.86 87 Justin Russell, Chief Inspector of Probation told the Committee that:

“Very few young people of any ethnic group end up in the criminal justice system now. Fewer than 1% of all young people are on the case load of any YOT, and that is fewer than 1% of both BAME and white children. For those young people who are on the case load, there is disproportionality in a significant number of YOTs, and that disproportionality increases as you get further into the system. The proportion of out-of-court disposals that are BAME is about a quarter, whereas, as you said, 50% of the custodial population are now from a BAME background.

“Over the last 10 years, we have seen a number of indicators coming down. The number of arrests of young people of all races has been coming down, as has the number of cautions and the number of young people going into custody, but it has been coming down much quicker for white children than it has for BAME children, in particular for black boys. That is a real concern. Somehow the system seems to be better at diverting white children away from the formal criminal justice system than it is for BAME children and young people. That is the big thing that needs exploring, I think, going forward”.88

71.In 2017, David Lammy MP, published his review on the treatment of, and outcomes for, Black, Asian and Minority Ethnic individuals in the Criminal Justice System. He wrote:

“My biggest concern is with the youth justice system. This is regarded as one of the success stories of the CJS, with published figures showing that, compared with a decade ago, far fewer young people are offending, reoffending and going into custody. YOTs were established by the 1998 Crime and Disorder Act, with a view to reducing youth offending and reoffending and have been largely successful in fulfilling that remit. Yet despite this fall in the overall numbers, the BAME proportion on each of those measures has been rising significantly”.89

72.The Ministry of Justice told us of work done to address points raised in the Lammy Review:

“In April 2018 the Ministry of Justice created a dedicated youth disproportionality team focused on explaining or changing disproportionate outcomes for BAME children in the justice system … . The Youth Custody Service has identified addressing disproportionality as a priority for 2019/20. They have put in place an Equality Delivery Plan to investigate disproportionality and identify where reforms can be made if any disparities cannot be adequately explained”.90

73.The commitment to “explain or reform” was widely welcomed, but some have raised concern that it has not gone fair enough. EQUAL told us that “The Lammy Review made it clear that if the CJS could not explain racial disparities they must reform in order to rectify them (explain or reform). However, there are a number of departments that have failed to do so… This lack of willingness to embrace the principle of explain or reform is evident in the lack of positive data two years on from the Lammy review”.91 Laurie Hunte, Criminal Justice Programme Manager, Barrow Cadbury Trust, told us “One of the things it [the Lammy Review] did was to point a way forward for the explain or reform principle. I do not believe enough organisations have really embraced that as a priority”.92 The Standing Committee for Youth Justice note that:

“The Lammy Review recommended criminal justice agencies must adopt the principle of ‘explain or reform’ for addressing disparities between treatment and outcomes of ethnic groups. But there is little evidence the principle has been adopted, particularly in relation to custodial sentencing and placements. There has been no explanation for the increasingly disproportionate child custody population, and the situation continues to worsen.”93

74.We are aware of the work the Ministry of Justice and Youth Custody Service have done since publication of the Lammy Review to address disproportionality. The youth justice population has changed considerably in the past 10 years, but children from BAME backgrounds continue to be disproportionately represented, with outcomes getting worse in some areas. We are particularly concerned about the disproportionate number of children held in custody who are from BAME backgrounds - 51.9% of the whole cohort as of May 2020. Race disproportionality is significant and fundamental, visible in every part of the youth justice system. We recommend that the Ministry of Justice set out what resource has been allocated to addressing disproportionality. We are not convinced that disproportionality has satisfactorily been “explained or reformed”. The Ministry should also provide the Committee with detailed research setting out why these communities are so disproportionately represented in each part of the system, including the cause of their disproportionate imprisonment. The Ministry should set out what action is being taken and resources allocated.

Race and diversion from formal criminal justice processing

75.Diversion schemes have played a part in reducing the number of children being formally processed in the criminal justice system, but some note that this has disproportionality benefited White children, compared with their Black, Asian and Minority Ethnic counterparts. The latest youth justice statistics show that first-time entrants (FTEs) from a White ethnic background represent 75% of the whole population, down from 85% a decade ago; in the same period, the proportion of FTEs from a Black background doubled from 8% to 16%. The proportion of FTEs from an Asian background has increased from 5% to 7% over the same period, whereas the proportion of FTEs from ‘Other’ ethnic backgrounds has remained stable at 1%.94

76.It is difficult to point to a single factor that has contributed to this disparity, but Clinks, Barrow Cadbury Trust and EQUAL, in their joint evidence submission to the Committee, raise concerns about the challenge the criminal justice system faces in diverting Black, Asian and Minority Ethnic children from formal criminal justice processing and state that:

“The extension of stop and search, an emphasis on the gang narrative defining young black people as a risk, as well as the mandatory custodial sentencing aimed at deterring knife crime - which as SCYJ highlight, leads to many children imprisoned for possessing, but not using knives - has made it harder for organisations to deliver prevention and early intervention work that is aimed at minimising contact with the justice system. These policies are also damaging to any trust that the justice system would try to build with BAME children making them less likely to engage and impacting how their ‘attitude’ is perceived by staff, reinforcing unfair and punishing treatment.”95

77.Jessica Mullen, Director of Influence and Communications, Clinks, told us: “We know from feedback from voluntary sector organisations working in that space that they see black and minority ethnic children more often overlooked for diversionary routes, and they perceive that to be because those children are perceived as risky and unmanageable. Then we see the statistics of over-representation lengthen throughout the later stages of the system.”96 However, without centrally collected data on diversion rates, it is difficult to know who is getting diverted and who is not.

78.It is not clear whether diversion schemes disproportionately benefit White children compared with their BAME counterparts, nonetheless, the figures on first-time entrants to the system are concerning. Without centrally collected data on diversion rates, we cannot gain an accurate picture on who is being diverted and who is not, and it is therefore difficult to understand whether diversion schemes are being disproportionately used. In adopting our previous recommendation that the Ministry of Justice and Youth Justice Board work together to collect data on informal diversion schemes, the two bodies should include demographic information in that data.

BAME children and Remand

79.Children from Black, Asian and Minority Ethnic (BAME) backgrounds are a high proportion of those remanded to custody. As with other aspects of the system, concerns have been raised about the disproportionate nature of the figures.97 For the year ending March 2019, 57% of children in youth custody on remand were from a BAME background.98 The latest statistics on youth justice show that “over the last 10 years the proportion of children from a White background remanded in youth custody has seen a general downward trend, falling from 62% to 43%, the lowest level in the last ten years.”99 The proportion of children from a Black ethnic background has increased to 33% compared to 22% a decade ago.100

80.Witnesses were asked what was contributing to the high levels of BAME children being remanded to custody; Shadae Cazeau, Head of Policy, EQUAL told us:

“The bail grounds that the court uses when thinking about bail are whether the person will surrender or fail to do so, and whether they will commit further offences or interfere with witnesses. As I said earlier, if we think about risk perception, if the court feels that a person is risky, and if that unconscious bias is interpreted by the judge to perceive the person as risky, the chances are they will perceive them as somebody who will not surrender to bail, or who will interfere with witnesses or potentially commit further offences. That may lead to them being remanded as a result.

“You can see the link between what the grounds are for bail and potentially how that impacts on a judge. A young black male, for example, who is accused of being involved in a specific type of violent incident, might be perceived as somebody who needs to be remanded. It is the grounds and the risks associated with them that have an impact on disproportionality in remand.”101

81.Enver Solomon, Chief Executive Officer, Just for Kids Law, stated that:

“If you think about the disproportionate numbers of those with a BAME background who also come from disadvantaged backgrounds, who are less likely to have good-quality legal representation, there might be poorer-quality decision making. It might be less likely for a case to be made for the young person to be released under investigation and less likely that the YOT is pushed forward with a robust package on bail. Those are all factors that contribute.”102

82.Transform Justice, asked: “Are more BAME children pleading not guilty? Is there unconscious bias in decision-making? Are the offences of which BAME children are accused particularly likely to attract remand? These questions beg urgent answers from the government and judiciary.”103 The Youth Justice Board note: “we have commissioned research to better understand why disproportionality occurs at the points children are remanded or sentenced. This research is due to be finalised at the end of August 2020.”104

83.BAME children are disproportionately remanded to custody and some of the children remanded to custody, will not then go on to receive a custodial sentence. The Youth Justice Board should update the Committee on the findings of their commissioned research. We agree with Transform Justice, that the disproportionate use of remand has not satisfactorily been explained, and we recommend that the Ministry of Justice provide an explanation of why the levels of BAME children being remanded to custody are disproportionately high. This explanation should include comparative data on the numbers of BAME children and other pleading guilty and differences in the types of offences of which BAME children and others are accused, in particular where they are likely to result in remand in custody. The Ministry should also set out the steps it is taking to prevent unconscious bias in decision-making.