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January 2019 - Racial discrimination in the CJS

Minutes of the meeting of the All-Party Group on Penal Affairs, held on 22 January 2019

Speakers 

Mark Blake, Project Development Officer, Black Training and Enterprise Group (BTEG)
Khatuna Tsintsadze, Prison Progamme Director, Zahid Mubarek Trust
Tanya Robinson, Head of Equalities and Lammy, HM Prison and Probation Service

Present

Lord Ramsbotham (in the chair)
Barnoness Masham of Ilton (co-chair)
Baroness Healy
Lord Ponsonby


Lord Ramsbotham welcomed everyone to the meeting, especially the three speakers, two from outside the Ministry of Justice and one from within.  He explained that unfortunately he would have to leave half way through the meeting, when Baroness Masham would take the chair.  He introduced Mark Blake, Project Director of BTEG, who had kindly agreed to stand in for Iqbal Wahhab, the Chair of Equal, who was unable to attend.

Mark Blake began by repeating apologies from Iqbal Wahaab, and explained that BTEG provided the secretariat for Equal. He would be delivering a text provided by Iqbal:

‘My presentation will cover the following: information on Equal and our objectives and priority areas; how those priority areas demonstrate the scale of the problem with regards to ethnic disproportionality across our justice system but also how deeply ingrained the issue is within the challenge of raising trust amongst those groups most affected by the criminal justice system; and some comments on the Government’s response to the Lammy Review and what needs to happen to accelerate progress

Equal is the successor to the Young Review Independent Advisory Group and our core objective is to support the elimination of ethnic disproportionality in the CJS. I want to put on the record my thanks for my predecessor Baroness Lola Young and the tireless work she put into establishing our Independent Advisory Group, my fellow advisory group members, officials from MOJ/HMPPS and our funders Barrow Cadbury Trust, Lankelly Chase and Esmee Fairbairn Foundations.

Equal wants to build on the foundations laid by the Young Review Independent Advisory Group which established itself as a key partner of the MOJ in the implementation of the Lammy Review.  We have agreed five policy priority areas to focus on:  firstly prisons - a fair and just prison system where BAME people are not overrepresented and do not experience poorer outcomes; probationa systematic and cultural change to improve outcomes for BAME communities. This can only be done through sustained improvements in representation of staff, increased valued engagement with communities and community organisations and a higher respect for ‘third sector’ providers; public sector equality duty to use the spirit of the legislation to enforce good practice and policy and procurement processes in all public sector bodies to systematically capture and prevent racial bias; the gangs matrix to support the Amnesty International and Stop Watch report recommendations of removing the Met Police’s gangs matrix and replacing it with a revised multi agency strategy involving civil society organisations in London; and finally justice devolutionEqual are for a CJS who are local, more accountable, connective, and responsive to local communities.

I want to make some brief comments on some of these priority areas.  On the Prison Service, HMPPS has made good progress in responding to the Lammy Review recommendations, establishing an external scrutiny panel to support them in their implementation. However it will be critical that we can see medium to long term shifts in the trends around the handling of complaints, the use of force, the incentive and earned privileges scheme, and security categorisation, in all of which Lammy highlighted deeply ingrained ethnic disparities. In the current context within the prison system this will be extremely challenging. We would also add the challenge of the youth justice system which Lammy described as the area he had most concerns with. We must see a strategic response to the over-representation of BAME children in custody and coming into the system. The recent report from Transform Justice, ‘Path of little resistance: is pre-trial detention of children really a last resort?’ notes that 54% of children remanded in custody are BAME.  Nothing has so far emerged from MOJ or YJB that can be viewed as a strategic response and the trends have been deeply ingrained for more than a decade. It is essential that we see a strategic transparent response to this challenge that fully engages civil society organisations and those affected communities, even more so in the context of the current crisis around serious youth violence.

We welcomed the MOJ’s consultation late last year on the probation service ahead of its retendering exercise for the community rehabilitation company contracts. Putting aside the shortcomings of the Transforming Rehabilitation project, we believe this is an opportunity to increase the involvement of civil society organisations particularly those small community-focused organisations working with BAME groups and faith organisations such as those working with Muslim communities. Equal held a consultation event and made a full response to the MOJ consultation process. Some of the key points from our submission were: a greater focus on those who have high reoffending rates (e.g. black men); strong weighting for equalities in assessing submissions for probation contracts; and the development of BAME led service provision.

The report from Information Commissioner’s Office on the Met Police’s Gangs Matrix database confirmed concerns from previously published independent reports from Amnesty International and Stopwatch that this structure breached legal and human rights guidelines and disproportionately impacted on young black men in a potentially discriminatory manner.  The report from the Information Commissioner should act as a wake-up call for all of our CJS institutions as to the dangers of systemically perpetuating the criminalisation of minority groups. Justice can never be achieved through unjust means. We have now had MOPAC’s response and it’s positive: they have invited the EHRC to have a role in scrutinising the implementation process.

Next month is the twentieth anniversary of the launch of the McPherson Report, a landmark in race relations in this country. This would be a good opportunity to reinvigorate the use of the Equality Act framework across CJS. Many of the inequalities around race and ethnicity in our justice system have not had a strong enough focus in the development of relevant policy or the procurement process for major public service delivery. This must change if we are to make sustained progress in addressing ethnic disparities which, following the launch of the race disparity audit by the Prime Minister, the Government is now committed to addressing.

Finally I want to commend the MOJ and HMPPS on the progress that they have made so far around implementing the Lammy recommendations including: progress around a London pilot for a deferred prosecutions scheme; the Gypsy Traveller Roma action plan; and a dedicated team in youth justice to look at BAME disproportionality. But the challenge now as I have highlighted is setting measurable, sustainable progress in the medium to long term.

One over-arching point I would like to make is that of the challenge of trust across our CJS. This is at the heart of all of the policy points I have previously made. We must engage more with those communities and individuals affected by our justice system. Lammy’s Review in my opinion had this issue of trust at its heart and one of his recommendations to establish `Local Justice Panels’ where youth courts can sit in community settings and that can galvanise local community responses is exactly the sort of proposal that can build trust and must be moved forward.  There is a huge disconnect between our justice system and the communities it most impacts on and bridging this divide should be an absolute priority.

As we see in the wider political context, when faith in our democratic and civil institutions wane cynicism takes over and has a corrosive effect. Many of those communities most affected by our justice system are those who are most disengaged. This needs to change. Thank you.’

Lord Ramsbotham thanked Mark Blake very much.  He mentioned that earlier that day he had chaired a meeting of the Criminal Justice and Acquired Brain Injury interest group.  One of the points made was that there was virtually no treatment of acquired brain injury for black and ethnic minorities. That indicated there was a long way to go to catch up.

He went on to refer to the murder of Zahid Mubarek, in 2000, at Feltham YOI. Since then, the Zahid Mubarek Trust had campaigned tirelessly for improvements in the treatment of young black and ethnic minority offenders.  Successive Home Secretaries had failed to hold a review for four years, but the House of Lords had ordered a judicial review, chaired by Mr Justice Keith, which produced 78 recommendations.  Initially the Home Office started implementing some of these, but that died away. The Chief Inspector of Prisons conducted an enquiry into what had become of the recommendations. It was a pleasure to welcome Khatuna Tsintsadze to speak on behalf of the trust. 

Khatuna Tsintsadze thanked the meeting for its kind invitation. ‘The Zahid Mubarek Trust was established by the family of 19 year old Zahid who was murdered by his racist cellmate on the morning of his release from Feltham Young Offenders Institution in 2000. An historic public enquiry into Zahid's death, chaired by Justice Keith, concluded that although Zahid was killed by his cellmate there were a 187 failings of the Prison Service which could have saved his life and could also have provided the necessary support to his mentally ill killer.

The Zahid Mubarek Trust advocates and campaigns for a fair and just prison system. Established to monitor the implementation of the Keith recommendations, the Trust currently works in 11 prisons providing independent monitoring and support to the establishments around equality and diversity issues. We scrutinise discrimination complaints, hold focus groups with staff and prisoners, train and support prisoner equalities representatives, sit at the equalities and use of force management committees and support families. This work is funded by charitable foundations to maintain its independence.  There are no resources available from HMPPS to fund similar work around equalities. 

Today's contribution reflects our 19 years’ experience in championing race equality in prisons. Last year alone, we spent 230 days in different prisons across the country and additionally we provided direct support to over a hundred prisoners and their families, most from BAME backgrounds. For some, Zahid Mubarek is a reminder of past failings that marked a watershed moment in tackling race issues in the Prison Service. For others, Zahid's name is associated with all the hard work and improvements put in place following his death. Also, there are many who question how a murder that took place nearly 20 years ago can still be relevant today.

Given the expertise and experience of the Zahid Mubarek Trust, I'll focus on race equality issues in prisons, and more specifically on why race equality should be at the heart of prison reform.  I believe that today's problems come from yesterday's lack of solutions, therefore I'll look at how learning from the past could help us, moving forward.

The latest published data shows that BAME prisoners are overrepresented in Use of Force incidents, are more likely to be placed in segregation, adjudications and basic IEP level. While this data reflects many ongoing issues in prisons, it is hardly ever seen through the lens of race relations.

Not long ago, I was asked what race equality has to do with the current challenges in our prisons, including 'disproportionality'. It is clear that 'race relations' is seen as an additional challenge to the already struggling prisons, rather than as part of the solution. Not only does this pose a missed opportunity, but it also hinders us in addressing the root causes of disproportionality in the first place. It stops us utilising 'race equality' as a powerful tool for rehabilitation, reducing violence and improving resettlement outcomes.

To quote an ex-Director General of the Prison Service in 2008, Phil Wheatley: "Race is an integral part of managing prisons – it is a key part of our work and a key part of how we make everything else work. Getting race wrong is a danger to society, duplicates resources and wastes time and money. It also sours relations between prisoners and staff – the key component in securing control, order, and a reduction in re-offending".  These were his opening words of the Race Review 2008 - a ground-breaking report of the Prison Service on how to run a successful prison.    

During the Race Review, the Prison Service was transparent, accountable and honest about its failings, challenges and achievements. It took five years of hard work for the Service to put in place some basic processes and systems to embed race equality nationwide. Despite this success, it did not transform the negative experience and perceptions of black, Asian and minority ethnic staff and prisoners. It was seen as just the beginning of further work - a foundation to address this challenge. So, what was that foundation made of and how strong is it today?

Last year, we conducted research into changes since the publication of the Race Review ten years ago. Here are some findings from our study:   In 2008, 111 out of all 127 establishments across England and Wales had trained full time race equality officers; 107 prisons had external scrutiny of their race incident complaints; race equality training was a mandatory residential course for staff; a race equality policy (PSO 2800) was issued, with 12 mandatory outcome-focused actions; and a key performance target on race was introduced measuring various aspects of delivering race equality, including prisoners' perceptions.

Today, equality officers across all 120 establishments are often cross deployed, most of them doing only a part-time job without training, covering not just race but 9 protected characteristics. Only 28 prisons maintain external scrutiny and we are doing 11 of them;  equality training is now an on-line course with no obligation to complete; the current equalities policy has only four overarching mandatory actions for prisons and is outdated, having expired in 2015. The current performance indicators for prisons do not include race equality outcomes.  In summary, there is a striking difference between where we were 10 years ago and where we are now. This difference also has practical implications for the treatment and outcomes for BAME prisoners as the challenges of the past still remain today.

Last year, over a quarter of the prison population were from a minority ethnic group. It's an appalling statistic but not surprising to those of us working in the system long enough to remember that the figure was the same 10 years ago. For nearly 20 years, BAME prisoners have been continuously reporting more negatively about their experience in prisons, the disproportionality around IEP level, segregation, use of force and their relationships with staff.

The Race Review 2008 highlighted a greater disproportionality in the number of black prisoners in the UK compared to the United States. Yet, more recently, it took the Lammy Review to remind us about this worrying disparity. The Lammy Review calls for the implementation of similar processes and systems that were implemented in the past but never sustained. They alone were not enough to overcome disproportionality before and would not be enough now. As illustrated in our research, systems are weakened when race equality slips down the agenda within the criminal justice system, as other seemingly more important issues are prioritised.

We need to ask some pertinent questions about the similarity of the findings from the recent reviews and reports with those published nearly two decades ago.  I believe it is not lack of knowledge about what needs to change but a lack of long term vision and accountability that are at issue.  A long-lasting change requires strong and effective leadership and a sustainable shift in culture. In my view, this is where the significant challenge remains. It's not easy but not impossible. We can start by not treating race relations as divorced from the basic operational requirements in prisons. We need to bring race equality and fairness into the core business of reducing violence, improving rehabilitation outcomes and reducing re-offending. Government agencies need to demonstrate a commitment to transparency and accountability in addressing these issues.

The cost of not addressing the negative experience and perceptions of BAME prisoners is much greater than investing in building positive staff-prisoner relationships. In our view, it is the fairness, equality and humanity of the system that saves lives, transforms experiences and serves the purpose of incarceration’. 

Sir David Ramsbotham thanked Khatuna Tsintsadze and welcomed Tanya Robinson, Head of Equalities for HM Prison and Probation Service, and charged with implementing the Lammy Report, who had been in post for a year.

Tanya Robinson thanked Sir David for his introduction. ‘When I came into post, the Lammy Review had taken place and the report was published in September 2017. I lead on thirteen of the recommendations from the report, covering mainly prisons.  From my perspective, coming into this role, it is something that HMPPS is taking seriously. At the onset, we put together a programme board.  Each of the recommendations is owned by different areas of the business.  I am the director of that programme and we hold each area to account.  So for example we have a Complaints Department who lead on the complaints recommendation, and when they come up with what they plan to do to fix or address the issues raised by David Lammy, these go through our panel as well as the external advisory scrutiny panel, some of whose members are in this room. Because of their experience working in the field, and being independent, they are able to scrutinise the way we are planning to roll this work out, and they can let us know when we are not getting it right.

This is a role I would not have taken up if it was not going to bring about change.  I welcome the Lammy Review because it highlights what we already know in terms of disproportionality within prisons and probation.  We have got 117 prisons, and I am ensuring that what we are doing is backed up by data – not anecdote, hearsay, and one-off reports.  We now have sight of the data that looks at IEPs (incentives and earned privileges), complaints and adjudications.  I am holding the prison group directors and governing governors to account in terms of disproportionality within those prisons.  There is a clear and disproportionate negative outcome for BAME prisoners.  So we are doing a lot of work to raise the agenda of equalities. It has been said earlier that there seems to be waves as to when the focus is on race and equality.  There are eight other protected characteristics, so we have to ensure that there is equality and diversity for all. But the biggest disproportionality is for BAME prisoners: we know that. So this is where the focus for Lammy is.  There is a lot being put behind this, and it is being taken seriously.

Data is one of the key areas we are working on, and getting that data out on a regular basis.  Another issue we have, which I think is inherent in the Prison Service anyway, is about the diverse mix of staff – or the lack of it. Within the cities, it is easier to recruit BAME staff to work in prisons.  But in the more remote areas it is more difficult to do that. So there is a real disproportionality in terms of the staffing group versus the prison population, and this was raised in the Lammy recommendations. What was stated is that that should align to what the prison population is.  That is not necessarily going to be possible – I am going to be honest about that.  If you are looking at somewhere where the population of the area is predominantly white, it is going to be difficult to recruit BAME prison staff.  However, the population within those prisons has still got a high proportion of BAME prisoners.  So there is work that needs to be done around cultural understanding and training. We have now just been signed off to have some mandatory training put in place. It will be online initially, with a view for it to go out face to face. The problem we have is that we have 51,000 staff and to get a budget to train that number of staff is quite difficult. So we have to have a balance.

There is one recommendation from David Lammy around the senior leadership as well. If we have a diverse senior leadership cadre then that will help the culture change in the different grades of staff.  So we have committed to aligning our senior leadership to the BAME working population, which is currently at 14%. Again this is not going to be an easy task. We have just put a recruitment campaign out for four BAME leadership managers who will be looking at different areas of the business to understand the talent we have within, so that they can be drawn out and promoted where possible.  We also have someone who is going to be recruited to MoJ recruitment, specifically looking at ways in which we can draw and recruit from the BAME community.  Historically, prison specifically has not been a desirable employment option for the BAME community.  So we are trying to raise its profile, and highlight the exciting opportunities there can be within. Again, that is not necessarily going to be an easy task.

So we are working towards the Lammy recommendations, and we are looking at the staffing side as well because it is clear that staff do not necessarily understand the cultural differences between their lives and those of BAME prisoners.  I have spoken to prison officers directly, and off the record they have been very open about not understanding the difference.  We have a huge task on our hands and I am not going to say things are going to change overnight.  But with this review, and with the momentum that is behind us at the moment, I am encouraged by the way that Michael Spurr, our Chief Executive, is taking on this agenda and has given me the space to be able to go out, to speak to governing governors, and to raise its profile.

Probation I think is more under the radar in terms of understanding the issues of disproportionality. Lammy did not give specific recommendations that targeted probation, but he did talk about disproportionality in pre-sentence reports, and the sentencing recommendations within that.  So we have picked that up and we are working with our national probation colleagues to ensure that we are monitoring outcomes and trying to understand where the bias is in terms of what proposals are put to the court, especially for young black males.

Another area that came out, that was not a specific recommendation – I think it was mentioned earlier – was around Gypsy Roma Traveller. The issues for this community are slightly different than for other BAME groups.  We are working with the traveller movement to ensure that we have an understanding of what is needed to align what is required for that group for each of the recommendations.  That did not come off the ground straight away but I think we are in a good position now. We are engaging well with the external group and I think we are making some progress.

We have got a huge diverse group of prisoners and not such a diverse group of staff.  We have got 83,000 prisoners and 190,000 people in the community. There is a lot of work to be done.  I would close by saying that I would not personally want this review just to be another review that has taken place, where we would look back in ten years’ time and say ‘which of these recommendations has been implemented?’ or ‘what work has been done with these?’  I want us to be in a place where we can look back and say ‘actually those recommendations were taken seriously and they brought about change.’  Thank you’.

Lord Ramsbotham having left the meeting, Baroness Masham thanked Tanya Robinson very much for her presentation. She recalled her time as a Board of Visitors member involved with a young offenders’ institution in Yorkshire some years ago, and a member of the prison health group, in Parliament.  She mentioned that disabled people in prison had big problems too.  She mentioned an asthmatic from the YOI who had died from an asthma attack, having received no care and attention from staff.  She was also concerned about the situation of transgender people in prison. She hoped proper attention would be paid to dealing with the discrimination they might face too.