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BAME Bias: The YJB analyses just how deep it goes

Ethnic disproportionality in remand and sentencing in the youth justice system.

The Youth Justice Board (YJB) has commissioned research to expand it’s understanding of ethnic disproportionality using administrative data.

There are undeniable differences between the legal outcomes BAME children are likely to receive in the youth justice system, compared to White children.  Whilst personal and demographic characteristics have an impact on these outcomes, to what extent does this disproportionality demonstrate systemic bias in the justice system?  The YJB investigates whether such disproportionality remains once other relevant factors are taken into account.

In preparing their research the YJB aims to generate robust scientific evidence that can be used to contextualise and guide efforts to redress disproportionality in the youth justice system.

Details

Ethnic disproportionality and over-representation of BAME children in custody remains an enduring problem in England and Wales.  The YJB has conducted a detailed analysis of remand decisions and legal outcomes in order to gain a deeper understanding of the factors that feed into such disproportionality.

The YJB’s aims are twofold:

  1. To understand the true extent of ethnic disproportionality in remand and sentencing outcomes for BAME children, compared to White children.
  2. To assess how far this disproportionality can be explained by personal characteristics or demographic factors (i.e. any other characteristic aside from ethnicity).

In order to determine the extent to which disproportionality is driven by ethnicity alone, the YJB analysed data recorded for cases between October 2017 and December 2019.  With a view to disentangling the relationship between youth justice system outcomes and children’s characteristics and ethnicity, the YJB investigated the impacts of gender, age, residence and type of court on children’s legal outcomes.

The YJB tested the influence of demographic characteristics on various legal outcomes to assess their impact for BAME children.  In many cases, the YJB found that disproportionality is accounted for when offence related factors and demographics are taken into account.  However, in the following key instances disproportionality was still evident:

  1. BAME children experience more restrictive remand outcomes. Black children who receive any type of remand decision are more likely to receive a custodial remand compared to White children. All minority ethnicities appear to be less likely to receive community remand compared to White children.
  2. Black children are least likely to receive an out-of-court disposal, followed by other ethnicities, Mixed ethnicities and Asian children. White children are twice as likely to receive an out-of-court disposal as Black children.
  3. There are harsher court sentences for Black children. On average, Black children’s custodial sentences are 7.5 months longer than that of White children. Asian children’s sentences are 6.8 months longer. Mixed ethnicities receive sentences 4 months longer on average compared to White children.

Neither demographics, offence-related factors nor practitioner-assessed factors can fully explain this disproportionality.  Therefore, two potential conclusions are posed: either, there are biases present in the sentencing of BAME children or there are other factors that could explain this difference (such as plea, type and quality of representation) which the report does not control for.  At this stage, the YJB forms no opinion as to which of these is the correct conclusion, but offers the results of their research for the consideration of those involved in the youth justice system in the hope that it will inform efforts to redress this disproportionality.

Commentary

The questions posed go to the heart of legitimacy and fairness in the Criminal Justice System.  Research has already showed that substantial ethnic disproportionality is driven by policing practice [Shiner, M. Carre, Z., Desol, R. and Eastwood, N. (2019) The Colour of Injustice: ‘Race’, drugs and law enforcement in England and Wales. London: StopWatch UK and Release].  However, such disproportionality persists beyond the point of entry into the court system, and it is important for practitioners and those involved in the justice system to understand the extent of this disproportionality, as well as any potential underlying causes.  It remains crucial that all practitioners (police, YOT officers, lawyers, Magistrates and Judges) are actively aware of the issue of racial disparity and that they question their own unconscious bias wherever possible.

Written by Charlotte Rice, Associate, Paul Hastings (Europe) LLP