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Equal's Submission to the Law Society’s Technology and the Law Policy Commission

Algorithms in the Justice System

About Equal

The Young Review launched in December 2014 with a report which gave a comprehensive insight into the disproportionality of BAME people and Muslim men within the Criminal Justice System (CJS) of England and Wales. It made major recommendations to alleviate racial bias and injustice within the CJS.

One of the recommendations was to set up an independent advisory group. The Young Review Independent Advisory Group (YRIAG) was established, with experts from various fields of the criminal justice system, to oversee the implementation of the recommendations from the Young Review. It worked closely with David Lammy and his review into the treatment of, and outcomes for, Black, Asian and Minority Ethnic (BAME) individuals in the CJS.

Baroness Lola Young steered the YRIAG for six years before stepping down as Chair in 2018. To continue the important legacy of the Young Review Iqbal Wahhab OBE was appointed Chair of the YRIAG, which has been renamed as Equal.

Equal’s interest in the Commission

Equal’s focus is on addressing ethnic disproportionality in the CJS. We are concerned that the increasing use of algorithms across the CJS rather than alleviating current inequalities could exasperate them, by attributing risk to particular BAME groups. The ICO report into the Matrix and its enforcement order to the Metropolitan Police highlighted the risk of potential discrimination experienced by young black men. Equal has participated, through an external reference group, with the MOPAC review of the Metropolitan Police’s Gang’s Matrix.

We believe there is a need for CJS agencies to acknowledge the profound risks of perpetuating and further entrenching inequalities experienced by BAME communities across the justice system.

Specific areas of concern:

Some of our specific areas of concern are highlighted below:

  • Systems, such as the Matrix, are premised upon historical and subjective data held by the police and wider criminal justice system. If we accept the discriminatory nature of CJS practices, then there is concern that such discrimination will simply become a part of those algorithms.  Such systems are likely to accentuate established disparities such as over-policing of high recorded crime areas which are likely to be areas of greater deprivation and higher number of BAME communities
  • Our experience from the Gang’s Matrix review has left a concern that there is a general feeling of indifference from CJS bodies towards system and technological developments that can have adverse impacts on BAME communities.
  • There is a lack of any ethical, data protection or equality/human rights standards being applied consistently to public bodies purchasing and implementing these systems.
  • The introduction of such systems, with such complex software that is generally not fully understood even by the purchasing authorities, can give an air of impartiality that can legitimize the criminalisation of groups and communities in our society. The ICO report should act as pertinent warning 
  • The majority of these policing data analytic systems, as detailed in Liberty’s report Policing by Machine, come from the USA. There is lack of any evidence on the impact of these systems on the American criminal justice system which we know has high levels of racial disparities.
  • Throughout the CJS of England and Wales, and since the Effective Practice Initiative of the late 1990s, such systems have been developed to actuarially score and measure risk (Offender Group Reconviction Score (OGRS) and Offender Assessment System (OASys).  Our analysis indicates that it is the use of risk assessment tools which has driven up the sense of ‘riskiness’ of BAME people which in turn drives racial disparity. 

Recommendations from Equal

The lack of transparency and application of legal standards in this area has been highlighted by the ICO report into the Gang’s Matrix.

We would suggest the following recommendations are considered by the Commission:

  • Statutory regulators in this area come together and agree a set of standards that all public bodies should adhere to before adopting these systems, in order to ensure that they comply with the law, human rights and ethical standards
  • Criminal Justice agencies, such as the police, must engage with affected communities before implementing such predictive policing systems, preferably as part of their statutory duties under the Equality Act