Right to a fair trial: Sold to many, redeemable by the few

Right to a fair trial: Sold to many, redeemable by the few

Unless you were in hiding for the last five months, you could not miss the eruption of protests all across the world. Sparked by George Floyd’s death in police custody in the United States, outcries for justice spread to encompass other developed nations who quickly pointed the finger elsewhere but were slow to recognise their own shortcomings. In the UK, typical phrases such as, “that only happens in America” or, “at least we’re not as bad as the States” are synonymous with rhetoric on judicial reform. 

George Floyd’s killers are being charged with second-degree murder or aiding and abetting murder. However, devastatingly low numbers of police killings actually result in convictions. This raises the question: is the right to a fair trial actually possible? Does Article 6 really guarantee the right to a fair trial for everyone? 

“Does Article 6 really guarantee the right to a fair trial for everyone?”

Examining issues of systemic racism and prejudice becomes increasingly complicated as we consider our own unconscious biases. Our unconscious biases show that our background, previous experiences, societal stereotypes and cultural context directly impact the decisions we make without us even realizing it. 

We can see this more clearly when we look at our criminal justice system from several angles, starting with race:

Race 

Race in the UK is a longstanding contentious issue. It’s widely accepted that civil rights should be advocated in health and education – so why not the criminal justice system? 

On the streets 

Between April 2018 and March 2019 there were four stop-and-searches for every 1,000 White people, compared with 11 for every 1,000 Asian people and 38 for every 1,000 Black people. Between March 2020 and May 2020, the Metropolitan Police carried out 22,000 searches on young black men during the lockdown. More than 80% of these stop-and-search procedures between March to May lead to no further actions.  Why does this happen?  

“Between March 2020 and May 2020, the Metropolitan Police carried out 22,000 searches on young black men during the lockdown.”

For starters, a police officer has the power to stop and search you if they have ‘reasonable grounds’ to suspect you’re carrying:

  • illegal drugs
  • a weapon
  • stolen property
  • something which could be used to commit a crime

However, when racial bias infers that some groups are more likely to be stopped on suspicion of participating in illegal activity, this assumption feeds its way through the judicial process and impacts civilians’ right to a fair trial, thus contradicting the fundamental principle of Article 6: “innocent until proven guilty.”

Trial 

Racism doesn’t stop with pavement pat-downs. When it comes to the hearing process, people of colour are also less likely to get a fair trial and more likely to get a tougher prison sentence.

Check out this chart of US pretrial populations by race:

https://www.prisonpolicy.org/blog/2019/10/09/pretrial_race/.

See a problem? There are a few: first, the pretrial population has shot up in the last 15-20 years. Second, the pretrial population has overwhelmingly more people of colour despite making up a much smaller percentage of the overall population. Third, there is very little available data on current statistics. 

As we mentioned, biases aren’t limited to arrest or pretrial statistics – they run all the way through the courts and judicial processes. According to a 2000 paper from the University of Michigan entitled “Race in the Courtroom: Perceptions of Guilt and Dispositional Attributions”, 

“One can easily imagine that explicit reference to issues of gender could have very different effects on men and women in a given situation, that highlighting the relevance of sexual orientation could affect heterosexual and gay people differently, and so on. Based on the results of the present studies, it seems that a group’s solidarity and status within society could be an essential variable for predicting the way in which people make decisions about ingroup and outgroup others.”

So what does it mean? Groups are prone to act in protection of, or solidarity with, members of its own group. So what does this mean in the states, where the pretrial prison population is 62.6% people of colour, but juries are not? Even juror dismissal can be racially biased. This process naturally creates fear and suspicion around the criminal justice system for those not in  a majority population. According the the same University of Michigan study:

“It is also worth emphasizing that the present studies suggest that White jurors (and by extension White police officers, White judges, White lawyers, etc.) still demonstrate bias in cases where racial issues are not emphasised, justifying Black jurors’ skepticism about the fairness of the criminal justice system.”

Incarceration

In the Lammy Review, MP David Lammy concluded that within the UK there is a disproportionate number of BAME prisoners compared to their representation within society. 

“Despite making up just 14% of the population, BAME men and women make up 25% of prisoners, while over 40% of young people in custody are from BAME backgrounds. If our prison population reflected the make-up of England and Wales, we would have over 9,000 fewer people in prison – the equivalent of 12 average-sized prisons. There is greater disproportionality in the number of Black people in prisons here than in the United States. This issue is not isolated to the UK. “In the US, 1 in 35 African American men is incarcerated in his lifetime, compared with 1 in 214 White men. In Canada, indigenous adults make up 3% of the population but 25% of the prison population. In Australia, Aboriginal and Torres Strait Islander prisoners make up 2% of the population, but 27% of prisoners. In New Zealand, Maoris make up 15% of the population, but more than 50% of the prisoners.”

“More than half the children sentenced to juvenile detention in Australia are Aboriginal.

Whilst it is true that others die in police custody, black people account for 8% of these deaths whilst accounting for only 3% of the population. In the past three decades more than 400 Aboriginal people have died in police custody despite findings and recommendations from a national inquiry back in 1991. When looking at the full spectrum across these disproportionate deaths, it is clear that race affects one’s experience from the time of arrest to conviction. 

“In the past three decades more than 400 Aboriginal people have died in police custody”

The effects of over-policing and resultant repercussions are throughout the criminal justice system. This builds mistrust between minority groups and law enforcement who scarce believe a fair trial is possible. 

So the question remains: is a fair trial possible? If we are going to uphold the principles and values that Article 6 was designed to achieve, it must be used in tandem with Article 14 – Protection from Discrimination. Robust systems that challenge unconscious biases, encourage scrutiny and eliminate prejudice are essential otherwise the right to a fair trial will only apply to the privileged few. 

Race is one lens, but there are many others. Next in the series we will look at Religion.