‘Racism already creates a backlog’: The impact of the courts’ case backlog for black victims of domestic abuse, black barristers and others

‘A middle-class white system’: From FGM, to the diversity of barristers, there is a cultural significance of delays in the courts which is being overlooked

A SYSTEMIC PROBLEM: Djamoni works with Sistah Space to protect black women who experience domestic violence (Photo via Misan Harriman)

A BACKLOG of cases which has built up due to the pandemic has left victims, witnesses and the accused by the wayside, anxious and unsure about when their cases will be heard in court. 

In crown courts, where the most serious criminal allegations are tried, the backlog is now at more than 53,000 cases.

The criminal justice joint inspectors have called this backlog “the greatest threat to the proper operation of the criminal justice system” despite the many other pressures caused by the pandemic.

For black people, this only builds on the uncertainty and distrust already felt towards the system.

The barrister’s view

Luke McLean, a junior barrister at Garden Court Chambers, says that as well as impacting victims and witnesses, the case backlog is also threatening the accused, especially as ethnic minorities are more likely to be held on remand.

Being on remand is when you are charged with an offence and are waiting for your court hearing.

In 2018, 82% of black defendants and 80% of mixed ethnicity defendants were remanded compared with 77% for white defendants, according to official government data

The disproportionality is worse when it comes to young people. Of children who were remanded in London in February 2020, more than six in ten were black.

“I know some cases which are delayed until 2022 and 2023 – and we’re talking about crimes that were committed a year ago, two years ago. If you’re more likely to be held on remand then quite clearly this backlog of cases and the delays are more likely going to impact ethnic minority communities,” Luke says. 

“We have to remember that people are innocent until proven guilty.”

According to Luke, a big problem junior barristers are facing is that in most areas they practice, but especially in crime, bills don’t get charged until after the trial. Luke says this threatens the future diversity of the courts.

“So say if I get a case today, but the trial is not listed until 2022, then I’m not going to see any income from that case until that trial is finished,” he explains.  

“If you’re, like me, in an underrepresented group at the bar, you’re less likely to join it because of these struggles. You can’t afford to join a profession where there’s loads of uncertainty and so it’s going to discourage lots of other ethnic minority people coming to this profession.”

The pandemic is an excuse

Jasmine Mohammad from the Angelou centre, an organisation offering services for black and minoritised women across the North East, says that the case backlog is discouraging women from continuing with their case if they have reported abuse.

“We’ve definitely had an issue with women saying ‘I don’t want to go through this anymore, it’s too much, it keeps getting delayed’. It’s too much every time she has to read a statement, or respond to a statement. It makes her feel that she’s having a conversation with the perpetrator again, and that anxiety is too much for her,” she says.

In a recent article for The Sunday Times, the Secret Barrister said that while Covid has presented challenges for the courts, “delay was embedded throughout the criminal justice system long before the virus left Wuhan.”

Organisations like the Angelou centre also observed delays before the pandemic and are worried that the current crisis will be used as an excuse.

Jasmine says: “For women’s rights work, we’re constantly told that ‘now isn’t the time, we’re dealing with Brexit’, or ‘now isn’t the time, we’re dealing with the pandemic’, and whilst the pandemic has made things worse, it’s not the cause. 

“Unless there is meaningful change and unless the structures and systems that surround the women we work with change then things are not going to be different.”

Family courts 

For victims of domestic abuse who do not want to go through criminal proceedings, those who have children may still need to take their case to the Family Courts.

Case backlogs are also a problem here. It may be another three years before the private family law case backlog returns to pre-COVID-19 levels, according to the HM Courts & Tribunals Service.

One domestic abuse victim named Jane* spoke to the Voice about their experience in the family courts.

Jane went through legal proceedings when her ex-partner – and abuser – stopped paying money to support their daughter. 

Following her first appointment, she heard nothing back from the courts. “My solicitor kept chasing and saying what’s going on? Nothing. Just radio silence.

“They mention the pandemic all the time – everything is blamed on the pandemic, isn’t it? It’s just an excuse for them to be even more incompetent,” she says. 

Jane has also experienced sexism and racism in the court system. She says she would not recommend anyone in her position to go through it: “You turn to the criminal justice system and quite frankly it’s bullsh*t, absolute bullsh*t.

“If you decide to walk [away from your abuser], you have no idea what is going to happen. That is where society, the civil institutions and the judicial system are not doing enough at all. The judicial system is absolutely, fundamentally failing women, day after day.

“If there’s another way for you to resolve your problem, then you’re definitely going to avoid the judicial system.”

Black women’s own backlog 

Talking to the Voice, Djanomi Headley from Sistah Space, a domestic abuse charity working with women and girls from the African and Caribbean community, says that the women they work with already have a metaphorical backlog to deal with.

“Racism is a major obstacle which presents itself as a big backlog. You have police who don’t initially believe you, and who only take you seriously at the second or third attempt of reporting the situation. Maybe somebody sees the name and there’s a bias there or somebody sees the skin or the image and there’s no physical bruising, because it doesn’t show up on a darker complexion,” she says.

Djanomi says that Sistah Space “are not strangers to backlogs. They are something we’ve been dealing with for a very long time before COVID, during COVID, and hopefully not but probably after COVID.”

Ngozi Fulani, the founder of Sistah Space, says that “it’s a challenge to get some of the women to even consider going to court for two reasons. One, it kind of is an unwritten rule in the grassroots community that we don’t go to the system because the system is not designed to support us. 

“Two, we, unlike other cultures, have to take into consideration that reporting an abuser, if it’s a black man, may actually cost him his life, or cause serious injuries.

Delays can be fatal

For the women who do decide to report their case, the case backlog and the delays it causes are yet more obstacles to overcome.

The wait for cases to be heard can be years long. Ngozi says that some victims may recover to some level during this time, “but at the back of your mind, you don’t know when it’s all gonna come up again. You can’t actually get on with your life. You’re actually trapped in victim–survivor mode. 

“[The delays] tie the victim to the perpetrator, for an unknown unspecified time – and unnecessarily.”

For the black community, there are circumstances that the courts don’t usually consider about the impact and cultural significance of the delays, Ngozi says. “If we’re talking, for example, about female genital mutilation (FGM) – and I know there are cases of this – sometimes it’s the whole family who are the perpetrators, including your own family. 

“The problem that we have found is that it’s kind of a middle-class white system, which has no idea, number one, from a female point of view, and two, from a cultural point of view. So when they make the decision to delay the cases, at what point do they determine what’s significant and what’s not? It’s potentially fatal.” 

*Names and other details which could identify the individual have been changed for confidentiality reasons.

If you have been affected by any of the issues raised in this article, you can call Samaritans for free on 116 123.

If you are in immediate danger, please contact emergency services.

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