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A Racial Justice Approach to Mitigation within Sentencing in the UK

Updated: Dec 14, 2023

A case for the enhanced pre-sentence report in England and Wales, exploring how the Canadian approach to racially disproportionate sentencing outcomes could be fashioned in the UK


In 2021, I was one of the lead contributors to a guide[1] for lawyers committed to ensuring Black lives matter in the Criminal Justice System. In the guide, I highlighted the case of R. v. Morris[2] as a way in which lawyers could use the law creatively to deal with racially discriminatory outcomes in the Criminal Justice System. I still believe, however, that there are many under-theorised approaches from R v Morris[3] and international human rights laws and principles that can be of real benefit to ensuring that sentencing hearings produce racially equitable outcomes. This piece will explore the ways lawyers can practically use this case and international human rights law and principles to do just that.


The case of R. v. Morris[4] sets precedent as to how sentencing judges should account for systemic anti-Black racism when sentencing Black people, including (but not limited to) the use of ‘enhanced pre-sentence reports’ that document the impacts of anti-Black racism.


Canada, unlike the UK, has a history of recognising the unique conditions of Black and Indigenous persons in their sentencing processes and decision-making. The criminal law code in Canada has recognised that there are cases where, in order to determine a fit and proportionate sentence, consideration must be given to an individual’s systemic and social circumstances. In particular, in June 1995, Parliament passed Bill C-41, a bill amending the Criminal Code with respect to sentencing. The new law came into force in 1996 and contained Criminal Code Section 718.2(e), which was intended to ameliorate the high rates of incarceration of Indigenous people. Section 718.2 reads: ‘A court that imposes a sentence shall also take into consideration the following principles: (e) all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders, with particular attention to the circumstances of aboriginal offenders’. These circumstances often extend beyond the person who is being sentenced to include factors such as systemic discrimination and historical injustice. This has been recognised by the criminal courts[5], particularly in the case of Indigenous offenders who have a distinct history of colonial violence endured by Indigenous peoples and has extended to people of African descent. This reparative approach taken to address the ongoing harms of racism, slavery, and colonisation allows judges to consider social contexts in sentencing decisions.


This approach has also allowed for new racial justice mechanisms to be further embedded into the Canadian legal system through the recent advent and use of Impact of Race and Culture Assessments (IRCAs)[6] in sentencing people of African descent. These IRCAs were first introduced in R v ‘X’.[7] These reports provide the court with a detailed understanding of the effects of systemic anti-Black racism on people of African descent and how the experience of anti-Black racism has informed the circumstances of the offence, the offender, and how it informs the offender’s experience of the criminal justice system. These reports also address, inter alia, anti-Black racism and aim to promote tailored and proportionate sentences for Black people. They strive to construct a sentencing methodology that balances the significance of the twin principles of individual responsibility and proportionality, while incorporating the cultural legacies and historical oppressions and their role in the sentencing of Black people.


In the case of R v Morris,[8] Justice Nakatsuru considered the impact of anti-Black racism on Mr. Morris’s life and his social history. The defence presented an IRCA to the court and requested that the authors of this report outline and analyse the research relating to the existence and impact of anti-Black racism in Canadian society in general and the Toronto region in particular.


The facts of the case


In 2014, Kevin Morris, a 22-year-old Black man, was detained, chased, and injured by police officers PC Keefer and DC Moorcroft in a parking lot. The police officers did so as part of investigating a nearby home invasion, but neither Mr. Morris nor the three other young Black men Mr. Morris was with were involved in the invasion. In the aftermath, a jury found Mr. Morris guilty of charges relating to the possession of an unauthorised gun.


The Outcome


At the sentencing hearing, the Crown requested Mr. Morris a sentence of four to four and a half years. Mr. Morris’s defence lawyers requested a sentence of one year. Many of the previous sentences handed down for gun offences relating to criminal activity had usually been at least three years, while other cases for gun offences had been from one to two years. Upon considering the anti-Black racism that applied on a systemic and interpersonal level to Mr. Morris, Justice Nakatsuru sentenced Mr. Morris to 15 months. The sentence was then reduced to one year after taking into account the police officers’ unlawful infringement on the Charter of Rights and Freedoms.[9] In passing down the sentence, the judge noted the following:


In the final analysis, what makes this sentencing different from other cases where leniency was not given is that I have been given a wealth of information to sentence you, information that can be used to take further steps to deal with the over-incarceration of Black people in this country.


This judgement was recently appealed in February 2021 (judgement handed down in October 2021) by the Crown due to the length of the sentence given by the judge. The Court of Appeal allowed the appeal in order to increase the sentence but stated that the approach from the Judge in factoring anti-blackness was the correct one to take. The decision to increase the sentence has been rightfully condemned by the interveners in the case—The Black Legal Action Centre (BLAC)—[10]who state they are disappointed by the decision in the appeal of R. v. Morris, explaining that the Court failed to take a strong stance to ensure that every sentencing judge across the province meaningfully considers anti-Black racism in a consistent way when sentencing a Black people.


Robyn Maynard, in Policing Black Lives, notes that ‘Black existence in public space is itself seen as criminal and thus subject to scrutiny, surveillance, frequent interruption and police intervention’.[11] This is of particular importance as Black communities in the UK remain over-policed through racially disproportionate stop and search,[12] which allows for Black communities to be funnelled through the criminal justice system. Black communities in the UK only make up 3% of the population but represent 13% of the adult prison population.[13] Currently, 59% of children on remand are Black.[14] The Lammy Review as far back 2017 highlighted the anti-Blackness within the judiciary when it comes to the disproportionate sentencing of Black males.[15]


International Human Rights Law Overview


The International Convention on the Elimination of All Forms of Racial Discrimination (ICERD),[16] ratified by the UK on 7 March 1969, establishes the obligations of State parties to respect and ensure racial equality and the right to be free from racial discrimination. Several other human rights treaties also contain prohibitions on racial discrimination and other forms of discrimination, including the International Covenant on Civil and Political Rights (ICCPR),[17] to which the UK acceded in 1976.


Under international human rights law, anti-Blackness is an infringement of the rights of people of African descent. Due to this, there must be scope to make arguments based on international human rights law when dealing with anti-Blackness in the courtroom. The ICERD[18] was created to deal specifically with racial discrimination within a specific human rights mechanism. The treaty in and of itself can be relied upon by countries where the ICERD treaty was ratified to make submissions in respect to failures to comply with international human rights obligations. The UK may not invoke ‘the provisions of its internal law as justification for its failure to perform a treaty’.


The UK’s wide ranging international human rights law commitments include an obligation to ensure racial equality and eliminate racial discrimination. This obligation not only arises from its commitments under the ICERD, but also from its other human rights treaty commitments; nearly every human rights treaty contains a provision on non-discrimination. Article 2.1 of the ICCPR makes it clear that the rights recognized in the Covenant are to be recognised without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth, or other status.[19] Article 2.2 of the ICESR outlines similar obligations with regard to economic, social, and cultural rights.[20]


The Committee on the Elimination of All Forms of Racial Discrimination (CERD) also produces General Recommendations that offer analysis of relevant provisions and practices of the U.N. treaty bodies. Since 1972, the CERD has issued general recommendations in order to provide guidance to States parties in understanding the provisions of the Convention and thereby assisting them in implementing the Convention fully based on their reporting to the Committee.


International Human Rights Law: CERD Recommendation No. 36


General recommendation No. 36 (2020) on preventing and combating racial profiling by law enforcement officials[21] is an extensive document the UK must use to further understand how it can comply with its international human rights obligations.


Paragraph 24 of General Recommendation No. 36[22] states that:


Under article 6 of the Convention, States parties have an obligation to assure to everyone within their jurisdiction effective protection against any acts of racial discrimination. Accordingly, States parties must take preventive measures in order to ensure that public authorities and public institutions do not engage in practices of racial profiling. Article 6 also requires States parties to ensure to everyone within their jurisdiction effective remedies against any act of racial discrimination. States parties are obliged to ensure that their domestic legal order contains adequate and effective mechanisms through which to assert that racial profiling has taken place and to bring such a practice to an end. States parties must furthermore guarantee the right to seek just and adequate reparation or satisfaction for damage suffered as a result of racial discrimination in the form of racial profiling.


The General Recommendation makes plain that racial profiling is in violation of the prohibition of racial discrimination. It also outlines how racial profiling is committed through certain official patterns and activities, such as arbitrary stops, searches, identity checks, investigations, and arrests.


General Recommendation No. 36[23] establishes that racial profiling runs contrary to non-discrimination and equality before the law as foundational principles of international human rights law, as well as to the ‘very idea of the Convention’.


The UN Special Rapporteur on Racism also notes that several international human rights mechanisms have concluded that racial profiling is both a manifestation of systemic racism and a contributor to the perpetuation of societal racial stereotypes, prejudice, and bias. The CERD’s General Recommendation No. 36[24] conceptualises racial profiling as both an individual and a structural violation. The CERD found that racial profiling and broader societal racism, including hate speech, are closely interrelated, in that stereotyping and hate speech can lead to law enforcement officers engaging in racial profiling and profiling can in turn increase stigmatization and promulgation of ethnic stereotypes.


International Human Rights Law: CERD Recommendation No. 34


General recommendation No. 34[25] adopted by the Committee concerns Racial discrimination against people of African descent. It requires that ‘people of African descent shall enjoy all human rights and fundamental freedoms in accordance with international standards, in conditions of equality and without any discrimination’.[26] Paragraph 15 notes that States should ‘strengthen existing institutions or create specialised institutions to promote respect for the equal human rights of people of African descent’.[27]


What could racial justice lawyering look like under current sentencing guidelines in the UK, and how can lawyers use R v Morris to inform mitigation arguments and approaches to Pre-Sentence reports?


Within the sentencing principles that currently exist, I believe that there is scope for lawyers to use the law and sentencing guidelines creatively to build a framework of analysis that can begin to address the issue of disproportionate imprisonment within Black communities in the UK.


For us to do this, lawyers must understand that the law is not neutral. Critical legal theorists have expanded on this by explaining that the law is the mechanism for legitimising the existing hierarchy of social relations and thus, crystallising existing patterns of domination.


Racial justice in the courts, therefore, requires the law to be decentralised, moving away from the perception that all charged persons before the court are white and male. Instead, the courts allow for an equitable approach that ensures fairer outcomes for racialised persons. In the case of R v Jackson 2018,[28] the sentencing judge Nakatsuru took such an approach. See paragraph 86:


Taking judicial notice of the historical and systemic injustices committed against African Canadians and African Canadian offenders is preferable to a strict adherence to the traditional rules of evidence which will only serve to advantage the status quo. The offender should not be burdened with the requirement to bring such evidence, usually in the form of expert evidence, to their sentencing when these social and historical facts are beyond reasonable dispute.


Current sentencing guidelines


The sentencing guidelines have sections within them that can be used to expand upon the history and legacies of Anti-Blackness on defendants at sentencing. The Sentencing Council’s Overarching Guideline on Sentencing Children and Young People notes at paragraph 1.18 that Black and minority ethnic children are over-represented in the youth justice system and states that decisions about the welfare of a child must consider the particular factors that arise in the case of Black and minority ethnic children.[29] The Sentencing Council has also taken recent measures in the guidelines for possession of firearms and possession with intent to supply drugs, which can aid in drawing sentencers’ attention to evidence of racialised sentencing disparities.[30] The approaches of the Sentencing Council in actively reminding sentencers during the sentencing exercise to be aware of the racial disparity can be seen as a measure that is aligning with international human rights law. Particularly, in respect to ICERD Article 2, Para 1 that requires States Parties to condemn racial discrimination and to undertake to pursue by all appropriate means and without delay a policy of eliminating racial discrimination in all its forms and promoting understanding among all races, and, to this end:


1(a) Each State Party undertakes to engage in no act or practice of racial discrimination against persons, groups of persons or institutions and to ensure that all public authorities and public institutions, national and local, shall act in conformity with this obligation;


1(c) Each State Party shall take effective measures to review governmental, national and local policies, and to amend, rescind or nullify any laws and regulations which have the effect of creating or perpetuating racial discrimination wherever it exists.


Lawyers can also remind judges of their role in fighting racial discrimination and disparity with the criminal justice system and their obligations under the Equal Treatment Bench Book, asking the court to take into consideration their client’s personal and cultural experiences as mitigating factors.


In the case of R v Jackson, at paragraph 107, the sentencing judge Nakatsuru noted that ‘[o]ne way in which this information (history of anti-Blackness within society) can be used is to ensure that the contextual circumstances regarding the lived experiences of African Canadians are properly taken into account when applying the principles of sentencing’.[31]


As judge Louis LeBel said in R v Ipeelee at paragraph 67:


[J]udges can ensure that systemic factors do not led inadvertently to discrimination in sentencing. Professor Quigley aptly describes how this occurs:

‘Socioeconomic factors such as employment status, level of education, family situation, etc., appear on the surface as neutral criteria. They are considered as such by the legal system. Yet they can conceal an extremely strong bias in the sentencing process. Convicted persons with steady employment and stability in their lives, or at least prospects of the same, are much less likely to be sent to jail for offences that are borderline imprisonment offences. The unemployed, transients, the poorly educated are all better candidates for imprisonment. When the social, political, and economic aspects of our society place Aboriginal people disproportionately within the ranks of the latter, our society literally sentences more of them to jail. This is systemic discrimination’.[Citation omitted in original.]


Sentencing judges, as front-line workers in the criminal justice system, are in the best position to re-evaluate these criteria to ensure that they are not contributing to ongoing systemic racial discrimination.[32]


Another way that lawyers can ensure that the history of racial discrimination is highlighted to the court is through preparing a sentencing note that sets out the issues and data on the systemic discrimination experienced by Black people and actively, as the judge in the above case has shown, warning the court of the risks of its decision in contributing to structural and institutional racism. The Lammy Review found a clear and direct association between being Black and the higher likelihood of receiving a custodial sentence, with Black people 53% more likely to be sent to prison for an indictable offence at the Crown Court, even when factoring in higher not-guilty plea rates.


I did this in a recent youth court case in which the mandatory minimum sentencing for knife possession applied and my client was spared custody. I also did this for a hearing I had for a young Black defendant who was being sentenced at the Crown Court. I mentioned in both written and oral submissions R v Morris[33] as best international practice and invited the court to use this approach to factor in my client’s experiences of anti-Black racism, which meant he presided more often before the courts. I further included points from the ICERD and its general recommendations mentioned above, The Lammy Review and Baroness Casey Review in this sentencing note. The judge agreed with my approach and took it into account as mitigation to reduce the sentence.


Ensuring the Pre-Sentence report covers the personal and cultural history of the Defendant


In England and Wales, when a pre-sentence report is provided to the court, only the discussions provided to the probation officer about the defendant are included in the report. an inspection of Race Equality in Probation[34] found that the quality of PSRs prepared in cases of Black, Asian and Minority Ethnic service users was ‘insufficient in too many cases’ and that not enough attention was paid to diversity. Inspectors concluded that ‘[p]oorer quality reports that fail to consider all relevant factors run the risk of service users receiving more punitive sentences’.[35] Lawyers must make an effort to ensure their client feels comfortable to discuss any issues of anti-Black racism they have faced with the probation officer so they can include this in the report. Lawyers should have discussions with their clients before sentencing about any experiences of racial injustice, whilst remaining aware that the experiences may be both direct and indirect. In the case of it being indirect, lawyers will need to be well versed in anti-racism research in order to highlight this. Lawyers, after confirming with their client, can also discuss with probation the need to ensure they have taken into account the issues noted in the Lammy Review and the recent Justice report on the overall lived experiences of racialised clients.[37] They should simultaneously highlight the concerns raised in an inspection of Race Equality in Probation HMIP 2021 report on the quality of PSRs prepared in cases of Black, Asian and Minority Ethnic service users. This is of particular importance, as the UK’s sentencing Council’s overarching principles notes that it is for the sentencing court to determine how much weight should be assigned to the aggravating and mitigating factors, taking into account all of the circumstances of the offence and the offender.


In order for the court to have all information about the offender and offence, the Court should be provided with international human rights documents like General Recommendation 34 of CERD, that will show the legacy of anti-Blackness globally.[37] Advocates should, then, through oral or written submissions, explain how anti-Blackness has shaped the offender’s life experiences and has led to them being in contact with the criminal justice system.


Using R v Morris as best international practice when discussing mitigation


Lawyers should consider R v Morris[38] alongside international human rights law as a best practice guide when gathering evidence and drafting submissions that can be used to showcase how anti-Blackness and anti-Black racism directly affects their Black clients. R v Morris[39] can be used as a blueprint for ways they can approach bringing this evidence forward to the court during mitigation. They can also present the case directly to the courts as best international practice, noting to judges that that whilst this does not yet have direct precedent in domestic courts, it nonetheless provides the courts with the best practice from an international human rights law approach when dealing with the impact of anti-Black racism on their clients offending, their contact with the criminal justice system and their wider life experiences.

 

Ife Thompson


Ife Thompson is a distinguished Movement Lawyer and UN Fellow, specialising in criminal defence, family law, and actions against police misconduct. Her work often intersects with cases involving racial and linguistic injustice, and she employs innovative legal strategies, drawing from UN International Human Rights Law and community-based issues to actively challenge these matters within her criminal defence practice. She has also founded two civil society organisations to further these pursuits. The first is BLAM UK: an award-winning Non-profit that provides educational, advocacy and well-being support for Black people living in Britain. The second is Black Protest Legal Support UK, a hub of UK-based Lawyers willing to provide Pro-bono support and legal observing at BLM and racialised protests.

 

[1] Howard League for Penal Reform, ‘Making Black lives matter in the criminal justice system: A guide for antiracist lawyers’ (2021) <https://howardleague.org/wp-content/uploads/2021/09/A-guide-for-antiracist-lawyers-1.pdf> accessed 9 October 2023.

[2] R v Morris [2018] ONSC 5186.

[3] ibid.

[4] ibid.

[5] R. v. ‘X’ [2014] NSPC 95.

[6] ibid.

[7] ibid.

[8] ibid.

[9] Canadian Charter of Rights and Freedoms, Constitution Act 1882.

[10] Ammar, ‘BLAC responds to Ontario Court of Appeal decision in R. v. Morris(Black Legal Action Centre, 8 October 2021) <https://www.blacklegalactioncentre.ca/blac-responds-to-court-of-appeal-for-ontarios-decision-in-r-v-morris/> accessed 9 October 2023.

[11] Robyn Maynard, Policing Black Lives: State Violence in Canada (Fenwood Publishing Co Ltd 2017).

[12] Vikram Dodd, ‘Black people nine times more likely to face stop and search than white people’ Guardian (London, 27 October 2020) <https://www.theguardian.com/uk-news/2020/oct/27/black-people-nine-times-more-likely-to-face-stop-and-search-than-white-people> accessed 9 October 2023.

[13] Georgina Sturge, ‘UK prison population statistics’ (Commons Library Publications, 8 September 2023). <https://researchbriefings.files.parliament.uk/documents/SN04334/SN04334.pdf> accessed 9 October 2023.

[14] Penelope Gibbs, ‘Children imprisoned on remand – the stark reality of racial bias’ (Transform Justice, 5 November 2021). <https://www.transformjustice.org.uk/news-insight/children-imprisoned-on-remand-the-stark-reality-of-racial-bias/> accessed 9 October 2023.

[15] Lammy Review, ‘The Lammy Review: final report’ (gov.uk, 8 September 2017) <https://www.gov.uk/government/publications/lammy-review-final-report> accessed 9 October 2023.

[16] International Convention on the Elimination of All Forms of Racial Discrimination, UN General Assembly resolution 2106 (XX) 21 December 1965.

[17] International Covenant on Civil and Political Rights, UN General Assembly Resolution 2200A (XXI) 16 December 1966.

[18] ibid.

[19] ibid Article 2.1.

[20] ibid Article 2.2.

[21] General Recommendation No. 36 on preventing and combating racial profiling by law enforcement officials (2020).

[22] ibid [24].

[23] ibid.

[24] ibid.

[25] General Recommendation No. 34 adopted by the Committee: Racial discrimination against people of African descent (2011).

[26] ibid.

[27] ibid [15].

[28] R v Jackson [2018] ONSC 2527 (CanLII) [86].

[29] Sentencing Council, ‘New Sentencing Guidelines’ (Sentencing Council, 9 December 2020) [1.18]. <https://www.sentencingcouncil.org.uk/news/item/new-sentencing-guidelines-for-firearms-offences-published/> accessed 9 October 2023.

[30] Sentencing Council, ‘New sentencing guidelines for firearms offences published’ (Sentencing Council, 9 December 2020) <https://www.sentencingcouncil.org.uk/news/item/new-sentencing-guidelines-for-firearms-offences-published/> accessed 9 October 2023.

[31] R v Jackson (n 28) [107].

[32] R v Ipeelee [2012] SCC 13 (CanLII) 1SCR 433 [67].

[33] ibid.

[34] HMIP, ‘Race equality in probation: the experiences of black, Asian and minority ethnic probation service users and staff’ (HMIP, 16 March 2021) <https://www.justiceinspectorates.gov.uk/hmiprobation/inspections/race-equality-in-probation>accessed 9 October 2023.

[35] ibid [29].

[36] JUSTICE, ‘Tackling racial injustice: Children and the youth justice system’ (JUSTICE, 25 February 2021) <https://justice.org.uk/our-work/criminal-justice-system/current-work-criminal-justice/tackling-racial-injustice/> accessed 31 October 2023.

[37] ibid.

[38] ibid.

[39] ibid.

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