People accused of minor crimes should be given the option to accept an out-of-court settlement without pleading guilty, in order to address the “glaring racial disparities” in the criminal justice system, a new report says today.
Making out of court disposals – including cautions, fines, treatment programmes and curfews – available without a guilty plea would make the criminal justice system work better for Black, Asian and minority ethnic people, the Social Market Foundation (SMF) think-tank said.
The SMF made the recommendation in a briefing paper examining the “disproportionality” in the criminal justice system’s treatment of people from different ethnic groups. Ethnic minorities are 16% of the population of England and Wales, but 23% of people arrested and 27% of the prison population.
A key driver of that disproportionate prison population is the longer sentences given to BAME people convicted of crimes. Those sentences are longer partly because BAME defendants are more likely than white ones to plead “not guilty”, because they do not trust lawyers or magistrates’ courts to deal with them fairly if they accept guilt.
As a result of that lack of trust, some BAME defendants who are convicted in crown court miss out on sentence reductions offered to offenders who plead guilty and avert the need for a full trial.
Changes in the law and policing are needed to address the “trust deficit” between BAME Britons and the criminal justice system, the SMF said.
Pleading “not guilty” also means that BAME defendants are less likely to be eligible for ‘out of court disposals’ since those routes generally require a formal guilty plea. OOCDs can involve cautions, treatment and counselling programmes, paying compensation to victims, restrictions on movement, and punitive fines.
Requiring a guilty plea for an OOCD means some BAME people accused of crimes miss out on a chance to resolve their situation without a criminal trial, and risk ending up with a prison term for relatively minor offences.
The SMF said ministers should address this by amending the Police, Crime, Sentencing and Courts Bill now before Parliament to make out of court disposals available without a guilty plea.
Police forces in the West Midlands and London have experimented with offering OOCDs without a guilty plea, resulting in reduced reoffending and harm. (See Notes)
Aveek Bhattacharya, SMF Chief Economist, said:
“Earning trust in the criminal justice system is a critical part of the process of building a society in which everybody feels they are treated fairly and equally. At present, though, there are glaring disparities between different ethnic groups in their experiences of the system which are both a cause and a consequence of mistrust. Using the current Police, Crime, Sentencing and Courts Bill to encourage greater use of non-prison options that can address the causes of offending would be a step in right direction.”
The SMF paper, which drew on private conversations with senior officials, politicians and lawyers, was sponsored by AIG. The SMF maintains complete editorial independence.
In addition, the briefing makes a number of further recommendations for policymakers to tackle racial disparities:
- Focused efforts to recruit more ethnic minority magistrates and judges.
- Reducing the detention of young ethnic minorities, especially on remand.
- Reviewing the process of legal advice for ethnic minority defendants, so that communication is better tailored to individual’s needs.
Dr Rhodri Williams, Head of International Public Policy at AIG, said:
“AIG’s commitment to criminal and social justice reform is a major theme of our global corporate citizenship agenda, and reflects our desire to make a positive difference in the communities we serve. So we are proud to have supported the work of the Social Market Foundation in highlighting inequities and disadvantage in the criminal justice system.
By focusing attention on the need to address the relationship between the “trust deficit” and unfair outcomes, this important report is a timely and constructive contribution to evolving policy thinking”.
- The SMF briefing, Earning trust, will be published 15th December 2021 at 09:30 am at smf.co.uk/publications/earning-trust/
- This briefing was sponsored by AIG. The SMF retained full editorial independence.
The most prominent such trial is West Midlands Police’s ‘Operation Turning Point’ scheme project, which waived the requirement of an admission of guilt in order to be eligible for an out of court disposal. Under the scheme, a person would meet with the offender management team within 72, and usually within 24, hours of being arrested. Together they would agree and sign a ‘turning point contract’, setting out a set of actions, including a pledge not to re-offend and measures to address the causes of re-offending, such as attending drug or alcohol treatment. Evidence suggests Turning Point, and similar initiatives, reduce harm and reoffending relative to court prosecution. Moreover, they have also been found to provide the victims of crime with more satisfaction and confidence in the process compared to having to ensure a trial.
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