Report highlights negative impact of ‘colourblind’ justice

The widespread adherence by the legal system to the notion that the law should be ‘colourblind’ and ‘race neutral’ is a barrier to eradicating and challenging racist and discriminatory practice, new research published by the Howard League for Penal Reform reveals.

Race consciousness and the law, a report written by Dr Alexandra Cox of the University of Essex, explores the stark racial and ethnic disparities that exist at all levels of the criminal justice system in England and Wales. It shows how lawyers, who are present at almost every stage of the criminal justice system, are in a unique position to identify and challenge racism, but their knowledge and experience has been under-researched.

The research, conducted with 30 legal practitioners from across England and Wales, found that legal authorities’ demands, both explicit and implied, that lawyers be ‘race neutral’ poses barriers in highlighting or addressing disparities. Practitioners spoke about the opposition they faced in the courts when highlighting the roles that race and ethnicity may have played in key decision-making by legal authorities, particularly the police.

Anita Dockley, Research Director at the Howard League for Penal Reform, said: “We have seen time and again how far our criminal justice system is from eradicating racism. This vital report highlights the significant barriers that Black people continue to face, and how their experiences and realities continue to be used against them.

“Five years after the Lammy Review and over 20 years after the Macpherson report, it is beyond time that Black people were given a fair justice system, free of bias, that they can trust.

“Through crucial work done by practitioner focus groups and research, this report provides a blueprint highlighting the key areas where urgent work is needed, and lays out the steps that must be taken to begin tackling the systemic disadvantages that Black people are facing.”

The report recommends that lawyers should engage in ‘race conscious’ advocacy, which acknowledges their clients’ often-negative experiences in the system and leverages existing expertise on structural racism. As ‘insiders’ to the system, defence practitioners in particular have vital access to legal procedures, negotiations, practices, and legal cultures and cultural codes which are inherently racialised; but also to their clients’ lives and experiences in the system – both of which ought to be utilised to address the barriers their clients face.

While their positionality affords benefits, the report also highlights that lawyers were conscious of the difficulties in establishing and maintaining trust with clients from ethnic minority backgrounds, sometimes being unable to prevent their clients from withdrawing from the relationship. Solicitors and barristers emphasised the challenges in addressing systemic harms, while facing distrust from clients who had been continually failed.

The report emphasises that there is a lack of financial and educational support to help lawyers challenge and eradicate racism in the criminal justice system in England and Wales. In order to begin addressing these inequalities, the lawyers highlighted the need for legal advocacy and legal education programmes to equip practitioners with necessary resources. They also stressed the importance of cultivating expert witnesses who can help to elucidate and contextualise the ways that systemic racism manifests, and who can speak to the realities of systemic disadvantage faced by clients before entering the system.

The report is based on data collected during four hour-long focus groups that took place in February 2021. Thirty legal practitioners from across England and Wales participated, including 15 criminal defence barristers and eleven solicitors. The remaining participants represented a range of roles in the court system, including paralegals and a volunteer in the criminal justice system.