How the law disappears Black Lives

Black lives matter, yet the erasure of Blackness has always been a core feature of the law.  To suggest that so-called ethnic monitoring information ought to be routinely recorded in public judgments raises complex ethical questions.  Many will immediately think one of those questions relates to the relevance of Blackness. It does not.  Blackness is always relevant, as a socially constructed marginality distinct even from other forms.  Statistics that demonstrate disproportionate monitoring and mistreatment of Black people at every stage of the criminal justice system make the information indelibly relevant.  It is relevant even where grounds do not exist to make legal arguments, whether under the Equality Act or by using article 14 ECHR in conjunction with another fundamental right.  The ethical complexity arises from those published judgments (once the information is added) inadvertently becoming part of the architecture of monitoring. Monitoring has existed for far longer than the modern algorithms which usually spring to mind when discussing the term.  Litigation is rarely a choice, except for the super rich.  Black litigants, however, often find themselves involved in litigation either to achieve survival, whether literally in the immediate sense, or to free themselves from the death-machines that are Her Majesty’s Prisons, and related settings.  They will have been frequently asked to record their racialised status, whether during prison reception processes, or on legal aid applications.  The data collected demonstrates, without question, that they rarely see any fruits from this monitoring.  Why should court judgments be any different? It may well assist sociologists in their analysis of the law but, again, so what?

Lord Justice Singh, in his 2018 Sir Mota Singh Memorial Lecture, entitled Racial Equality and the Law, included citations of popular authors, from David Olusoga to Afua Hirsch among references to court judgments from majority white common law jurisdictions. He uses this international backdrop to describe the history of legislation aimed at racial equality in the United Kingdom.  Even with all of the progress detailed therein, the elephant of continued inequality crowded the room, as lawyers toasted progress. In her essay The Master’s Tools Will Never Dismantle the Master’s House, originally recorded as comments made at a conference in 1979, Audre Lorde said:

“…I stand here as a Black lesbian feminist, having been invited to comment at the only panel at this conference where the input of Black feminists and lesbians is represented.  What this says about the vision of this conference is sad, in a country where racism, sexism and homophobia are inseparable”. 

We often like to exceptionalise what is happening in the US. Yet it is in the US where intersectional analysis (as alluded to by Audre Lorde above, 10 years before the term was born) was first used to critique courts’ separation of racism from other forms of discrimination.  The term intersectional appears in the Oxford English Dictionary to describe its creator Kimberlé Crenshaw’s theory.  It is conspicuous in its absence, however, from the vocabulary of our courts.  As those same courts have a record – at a rate which exceeds those in the US – of sending Black people to prison, and adjudicating on matters unrelated to the flourishing of Black communities, alienation is inevitable.  The master’s tools will never dismantle the master’s house. Yet the equal rights champions who see toxic institutions like the police as being the solution to sexual violence seem to have little regard to how those institutions are a symptom rather than a solution. It is those same champions that now tell us that Black Lives Matter.

Whilst, in one sense, it is good to see lawyers begin to reflect on “the extent to which Britain was involved in (and benefitted from) slavery and the slave trade“, analysis of the relationship between the past and and the present is a far more distant prospect among us. How the very existence of the law as we know it has always been a violence to Black people. From forcing them to prove their personhood, whether in the 1700s to distinguish them from property, or in the modern day, as they are frequently called upon to do, to be seen other than as harbingers of risk. As navel-gazers across the world pontificate on the availability of habeas corpus to non-humans, we should pause to think how rarely that ‘great writ’ is available to people being so rampantly excluded from flourishing in our society. The truth is that we have never learned to recognise the humanity of those we have othered throughout history.

My experience, nonetheless, is not of people I act for from those communities, and thinkers I learn so much from, suggesting we down tools and do something else.  That does not prevent me from taking calls to abolish the law, as one person has put it, seriously.  But against a backdrop of such persistent mistreatment, in the criminal justice system and beyond, of Black people in this country, we should revise our own roles in the system.  Calls for more prosecutors, better prisons and more bobbies on the beat are being exposed within the Black Lives Matter movement as being intellectually bankrupt.  Theories of intersectionality and abolition will be completely alien to many within our profession.  If we continue to nourish ourselves from the feelings of a job well done, whilst inequality flourishes, our victories will be Pyrrhic.

As universities across the world undertake to introduce Black studies, and literature from other disciplines, into their curricula, this has drawn – entirely justifiable – laughter and indignation from within the ranks of those scholars who have deep knowledge, but have been prevented from holding deserved positions in the academy.  Our own profession has been disappointingly weak at looking to the failures when it comes to discrimination within its ranks.  It took a young Black paralegal – speaking about the profession’s response to the removal of William Colston’s statue – to drive this home in recent weeks.  What we can do to foreground expertise that the judiciary, largely drawn from especially privileged ranks of people, have demonstrated no appetite for? Even Lord Justice Singh was exasperated by the task:

Some statistics which have been published by the government may be of interest in this context. UK households were divided into five equally sized groups or “quintiles”, based on their income. The average household income ranged from £9, 100 in the lowest quintile to £45, 900 in the highest quintile (after housing costs were deducted). Over half of households from the Asian, black and other minority ethnic groups fell into the two lowest income quintiles. 42% of white British households fell into the two highest quintiles, this being the highest percentage of all ethnic groups. Only 20% of black people fell into the two highest quintiles, this being the lowest percentage of all ethnic groups. The reasons for these differences in income are complex and well beyond my expertise and the remit of this lecture. However, such differences of income may form one of the structural features of our society which I have mentioned”.     

We must not be surprised if the alienation I mention has spread to the ranks of the scholars best placed to bridge the gap between the expertise within the judiciary, and that available from many many decades of writing about Black lives.  However averse courts may appear, lawyers must not be complicit in suppressing this expertise. I do not write here to profess the kind of expertise needed to understand racism, and anti-blackness, in all the requisite ways to prevent it. It has indeed been very disappointing to see fellow lawyers rush to convene events, and crowd online space with their own takes on the last few weeks, without reflecting on how the law might be complicit in the harms we see, who might be better placed to analyse things, and on the trauma caused by transient and performative solidarity. We need to learn before we can teach.

Further Reading/Listening/Viewing:

https://www.thedailybeast.com/bots-are-terrible-at-recognizing-black-faces-lets-keep-it-that-way?ref=scroll

https://www.crimeandjustice.org.uk/publications/cjm/article/%E2%80%98new-punitiveness-context-british-imperial-history

https://www.democracynow.org/2020/6/12/angela_davis_historic_moment

https://blogs.lse.ac.uk/politicsandpolicy/racial-discrimination-in-housing/

Pushing the boundaries of data science ?

My response to the following MoJ blog, as it awaits moderation…

https://mojdigital.blog.gov.uk/2018/04/05/pushing-the-boundaries-of-data-science-with-the-moj-analytical-platform/#comment-67211

__________________________________________________________________________________________

The most important thing, I feel, when writing blogs like this for Government websites is to tell the truth about the effects of data science on your department’s work, both in the past, and at present.

I will be immediately lambasted if I don’t offer the courtesy of gratitude for not only engaging with us mere users of your department’s services, to borrow your own parlance, but also for enabling a comments function for contributions. The latter move in particular is a welcome one.

Beyond that, however, indignation for people like me is undimmed, at the sight of reference to ‘tools to monitor access to justice’, where the context in which those tools have been developed is the elephant in the room. It is superficially exciting to see free text analysis of Parliamentary questions and their responses, but digital innovations like theyworkforyou.com have not stopped Ministers obfuscating when it comes to responses to written questions.

The failure to even mention in passing the scathing critiques of your department’s policies, in court judgments, consultation responses, social media exchanges, bestselling books and elsewhere, is unsurprising. You are promoting your department. That, for me, is why it is almost impossible to read these blogs as anything other than propaganda.

The CEO of HMCTS even appropriated the term “post truth” in one of her blogs, which was enough to impress even the most cynical members of the legal profession. Valiant and swift responses to complaints about the dilapidation of court buildings earned further kudos.

But no reference is made by any MoJ official to the human costs of the juggernaut-like progress towards modernisation, a sinister term with no moral value. We see – and feel – those costs every day.

Open Letter to Governor of HMP Nottingham

Dear Governor
Re: Offer of Support and Solidarity

We, the signatories of this letter, are all professionally and personally linked to Nottingham, with expertise in prisons, punishment and safeguarding against mental ill health.

It has been recently stated that there are as many opinions on prisons as there are prisoners. We are painfully aware of that. We are unlikely to agree unanimously on every idea we have to alleviate the suffering we see among both staff and prisoners across the estate. We are also aware that Governors, more than anything, value autonomy.

The reason we are writing this open letter is to offer support. Our observations of incidents at HMP Nottingham over months and years have now been further validated in the form of an Urgent Notification issued to the Secretary of State for Justice by Her Majesty’s Chief Inspector of Prisons. Whilst there may not be consensus among us as to whether increased resources will solve the problems found at HMP Nottingham, we wholeheartedly offer our solidarity to all working and living in the prison.

These are some basic suggestions we can make which may not appear in the forthcoming Ministry of Justice’s action plan, but that we hope will complement it:

(1) Offender Supervisors, under cross-examination at parole hearings, have revealed they have never heard of the Care Act 2014. They could be encouraged to read Prison Service Instruction 3/2016, which was specifically drafted to assist with the interpretation of this Act. This is a way of bringing Nottingham City Council into the fold, to alleviate the burdens shouldered almost exclusively by the prison at present, in the provision of adult social care. It also has implications for the availability of support on release, and reducing the eye-watering 4300% increase in recalls seen over the last 20 years.

(2) Adopt a flexible approach to the disciplinary (particularly IEP) regime. For example, if a prisoner is behaving erratically, and needs his television to help him cope with auditory hallucinations, do not remove that television as a disciplinary sanction. This is a real example, which led to a further deterioration in the prisoner’s wellbeing. Another local prison, HMP Leicester, has mitigated some of the inherent suffering of imprisonment acknowledged in the Mandela Rules, by adopting a new approach.

(3) Abandon ‘wing wisdom’ about self-harm. There is continual reference in security reports to ‘attention seeking’. This is a particularly dangerous concept in predicting suicide. Research indicates self-harm is the strongest predictor of death by suicide that we have regardless of the intent of the act thus it is vital to take all self-harm seriously.

(4) Give very serious thought to whether or not prison is the right environment to manage a prisoner’s capacity for self-harm. Many features of safety plans developed for those at risk of self-harm take for granted options available to those in prison. For instance, going for a walk, spending time with a pet or playing an instrument. Ask whether an assessment to transfer a prisoner under section 47-49 of the Mental Health Act 1983 is appropriate.

(5) Utilise screenings, such as WASI-II (for intellectual functioning), S-CLR (for mental disorder) and BISI (for brain injury) which are either not too resource intensive or already funded by the Ministry of Justice, and can assist in appropriately diverting prisoners.

(6) Consider the extent to which prison, particularly for very ill prisoners, has a pronounced effect on life expectancy. These prisoners may well be eligible for compassionate release.

For any of the above suggestions that are not entirely resource neutral, may we offer to run a pro bono legal clinic on a fortnightly basis? If there are difficulties in mobilising third parties, or a need for expert input from other professionals, this would be an effective way of finding a solution. Similar projects have been trialled successfully by other organisations, both nationally and internationally.  The United Nations Office on Drugs and Crime indeed encourages rosters of lawyers to be drawn up to provide advice to inmates for free. In order for this to be sustainable, or more frequent than fortnightly, there of course needs to be proper legal aid funding.

In the meanwhile, we will endeavour to help where we can. We would be happy to meet with you and, if you consider it appropriate, a representative from the Ministry of Justice, to discuss these matters further, either before or after the latter’s publication of an action plan.

Best wishes
 Dr Jennifer Bamford, Senior Forensic Psychologist, Tully Forensic Psychology Ltd
 Professor Rob Canton, De Montfort University, author of Why Punish? An Introduction to the Philosophy of Punishment
 Dr Vincent Egan, Associate Professor of Forensic Psychology Practice, University of Nottingham
 Professor John Holmwood, School of Sociology and Social Policy, University of Nottingham
 Amjad Hussain, Barrister, Trent Chambers
 David Parker, Partner, Carringtons Solicitors
 Kushal Sood, Solicitor Advocate, SL5 Legal and Director of Trent Centre LLP
 Professor Ellen Townsend, School of Psychology, University of Nottingham
 Dr Ruth Tully, Director, Tully Forensic Psychology Ltd

How parole works

WRITTEN WITH ANDREW SPERLING FOR SL5 LEGAL

 

 

John Worboys’ release has led to some immediate, and eminently understandable anger, from commentators across the media spectrum.  The release of prisoners serving sentences for sexual offences is a very sensitive subject. Knee-jerk commentaries are best avoided.  It’s not often that parole is in the news so we thought we would contribute with some expertise on how it actually works.  Here are our ten facts:

 

  1. The Parole Board is entrusted by Parliament to make binding decisions about which prisoners are safe to be released.  In this respect they act as a court.  Politicians cannot interfere with this decision.
  2. Prisoners who are given indeterminate sentences must serve a ‘tariff’ or ‘minimum term’ before they are eligible to be released.  The term is set by the sentencing judge and is based on sentencing guidelines.  When that term ends the prisoner is not automatically released. The sentence could last forever if the Parole Board felt that they were too dangerous to be released.
  3. The test for release is whether the prisoner needs to continue to be confined for the protection of the public from serious harm.  This means serious physical or psychological harm. The decision is usually made following an oral hearing.
  4. A Panel of the Parole Board is usually composed of 3 members. Members are appointed by the Secretary of State.  They do not have to demonstrate expertise in risk assessment or working with prisoners. They include former police officers, probation officers, psychologists, psychiatrists, academics, investment bankers, and lawyers.  Whilst historically Panels would have a Judicial Chair, accreditation to become a Panel Chair can now be achieved through a training and examination exercise.
  5. Dossiers of evidence, in cases like Worboys’, tend to be several hundred pages long. They will include risk assessments from a variety of witnesses including psychologists, psychiatrists and probation officers. Evidence may include reports from programmes prisoners have completed. The Parole Board will decide which witnesses need to give evidence.
  6. Victims of offences have the right to provide a statement explaining the impact of the offences upon them. Victims can also attend hearings to read their statements.  The Parole Board has very detailed guidance setting out its duties to victims.  It is the responsibility of Victim Liaison Officers to inform victims of their rights and to consult with Probation Officers about proposed licence conditions.
  7. A prisoner can be represented and can call witnesses, including independent experts, to give evidence in support of his/her application. The Secretary of State for Justice can appoint an advocate to represent his view at a hearing, but rarely chooses to do so.
  8. Prisoners who have been convicted of sexual offences will usually be expected to have completed treatment programmes.  The Sex Offender Treatment Programme – which had been running for over 25 years – was abandoned last year. This followed publication of research by the Ministry of Justice which suggested that it could actually increase risk.
  9. Parole hearings are often very long.  Prisoners and witnesses are questioned in great detail about evidence relating to the risk they may pose if they are released. Parole Board decision letters are not public documents.  They are very lengthy and will provide detailed reasons for the decision.
  10. Recalls to prison, for those released on licence, have increased by 4300% in the last 20 years. The serious reoffending rate for indeterminate sentenced prisoners who are released is around 3%. Any serious reoffending will be referred to the Parole Board’s Review Panel who will investigate the decision-making process and make appropriate findings.

 

The Parole Board (Part 1 of 2)

I wrote notes a while back, after reading a National Audit Office (NAO) report on the Parole Board.  Here they are in a slightly unstructured fashion.  I plan to write some more cohesive pieces in the future, but just experimenting with the medium for now!

The NAO remit is to scrutinise the spending of public bodies and hold Government to account.

Its critique of the Parole Board’s spending implicitly criticises two Supreme Court rulings (1.Osborn, and 2. Faulkner) without making reference to the rationale behind either of them.  Those judgments meditated, respectively, on when it was fair for the Parole Board to hold an oral hearing, and when a prisoner should be afforded redress for delays in that hearing.  The NAO report prompted an evidence session from the Justice Select Committee, which heard only from a narrow range of stakeholders (as they’re regrettably called) in the parole process.

This is not the first time an NAO report has taken on a political tone.  In its 2014 report on foreign national prisoners, charged language was used, as pointed out by an academic subsequently.

OSBORN

By ignoring the rationale of Osborn, the NAO deprived itself of Lord Reed’s key analysis at paragraph 72:

“The third matter to be clarified concerns the cost of oral hearings: a consideration which appears to have underlain some of the changes to the rules and practice of the board which have given rise to the present appeals, and which is reflected in the board’s annual reports, where figures are given for the savings achieved by the refusal of oral hearings in recall cases. The easy assumption that it is cheaper to decide matters without having to spend time listening to what the persons affected may have to say begs a number of questions. In the context of parole, where the costs of an inaccurate risk assessment may be high (whether the consequence is the continued imprisonment of a prisoner who could safely have been released, or re-offending in the community by a prisoner who could not), procedures which involve an immediate cost but contribute to better decision-making are in reality less costly than they may appear. In the present cases, counsel for the board accepted that cost was not a conclusive argument against the holding of oral hearings”.

It was perhaps not within the NAO’s remit to think of costs in such a holistic way.  If that is the case, one must question the relevance of the NAO in wider public debate.

FAULKNER & STURNHAM

The NAO’s 2nd criticism, namely that prisoners were being paid compensation for parole delays, was enthusiastically taken up by the Daily Telegraph.

Telegraph articles (in general, but this one in particular) deprive prisoners of their humanity.  We are meant to imagine scheming and violent individuals being enriched at the expense of an overworked judicial body doing its best.    The reality, based on the thousands of cases members of the Association of Prison Lawyers have dealt with, is that this image is a grotesque caricature of the vast majority of individuals applying for parole.  The word dangerous in the headline is disingenuous as it refers to individuals entitled to compensation notwithstanding the fact they were refused parole.  It is one thing to say they have some work to do before they can satisfy the test for release, and another to say they are dangerous. Whilst a small minority remain dangerous, there are many shades of grey in between.

The mischief, I accept, of that article cannot be laid at the NAO’s doorstep.  Their focus on compensation, however, again perhaps due to the body’s limited relevance to wider debate, ignores compensation’s function.  Compensation is in fact an inapposite term.  The award to prisoners is known as just satisfaction, and it is at a deliberately low level due to its symbolic, rather than restitutionary nature.  It was perhaps best expressed by the Honourable Mr Justice Blake in Guntrip:

“Some may express concern that hard pressed public funds are being awarded to a man serving imprisonment for public protection and thus, by implication, not deserving sympathy. In that regard, the underlying facts are important. We repeat that the punitive part of this claimant’s sentence was to serve a minimum term of two years imprisonment; this was completed in 2007. In the time that has passed, for a second time, the court has found unwarranted delay in a consideration of his case by the Parole Board, the only body that can release him. It is not in the least surprising that he has become frustrated and untrusting, even more so now that the type of sentence passed upon him is no longer available to the court. Although that frustration cannot start to justify his serious misbehaviour (which has caused those reporting on him to be understandably concerned about the risk that he poses to the public), the system requires prompt consideration of the cases of those being detained, well beyond the punitive term, only because of that risk. If that consideration is not afforded to these prisoners, there is an increasing danger that the risk they pose to the public will be enhanced by their continued incarceration rather than diminished. The only acknowledgement of the failings in the system can be an award of damages”.

The timing of the NAO report has not provided for enough time to assess the long term deterrent effect of the damages scheme.  It has, by the NAO’s own concession, forced a recruitment drive.  Will it in time deter unnecessary adjournments, and improve decision making?

The Parole Board has understandably, particularly since Osborn, devoted numerous public statements to its immediate effects on their resources.  It would be a huge disservice to the Supreme Court, however, if tribute was not paid to their consideration of the benefits to prisoners, and society as a whole, from an increase in oral hearings.

As for the damages for delays, the NAO report is of limited value for those interested in understanding the topic.  The systematic problems in ensuring report completion by Offender Managers led the Court of Appeal to make the following suggestion in Vowles:

“There is another aspect in which the Parole Board is further disabled from complying with its obligations to make a speedy determination, as it has no specific statutory powers to enforce its case management directions. It is difficult to see how it can properly and actively manage cases without such a power. A party can of course apply for a witness summons to the High Court or County Court under CivPR 34.4, but that is of very limited relevance in enforcing compliance with directions, such as the service of reports. It is plainly essential that the Parole Board be given such a power. In the interim, as a significant number of the directions of the Board require action by the MoJ or NOMS, there is no reason, pending the introduction of such a power, why the MoJ and its agency NOMS cannot give an undertaking to the Parole Board to comply with its directions and appropriate administrative or disciplinary action taken by the MoJ and NOMS against employees who do not comply with the directions of the Parole Board”.

One final suggestion is for a review of individual panel member fees.  If they are paid a fee per appearance this creates – at least an appearance of – a perverse incentive to adjourn.  More appropriately designed salaries would negate this.  Re-aligning fee structures would take time, however, so even if this is how remuneration works, amending it may not be an immediate solution.