A moment of change

By Marilyn Vitte and Dan Robinson, Red Lion Chambers

It hardly seems possible that a year has passed since the murder of George Floyd by a white police officer, a murder which led to a global outpouring of grief and frustration with a system stacked with systemic racism. Widespread demonstrations were ignited across the world, culminating in police officer Derek Chauvin’s conviction for murder in April this year.

For many, the reaction to this news was unsettling. Feelings of relief, thanksgiving and yes, surprise, should not have entered anyone’s mind. That gruesome video of officer Chauvin kneeling on Floyd’s neck for more than nine minutes was all the evidence needed for a conviction. It’s a sad commentary that spirits were raised because Chauvin’s jury simply did what the facts and circumstances led them to do, but following multiple instances of grand juries declining to indict police officers in other murders, such as those of Breonna Taylor or Michael Brown, confidence is scarce that the criminal justice system works fairly for people of colour in the US.

Indeed, in the midst of Chauvin’s trial, new cases of people being killed by the police mounted unabated. Whilst it is right to say that the verdict in Chauvin’s case is a milestone in US history and brings the US a step closer to making equal justice under the law a reality, it is of note that at least six people were fatally shot by officers across the US in the 24 hours after jurors reached a verdict[1]. Perhaps reflecting an urgent need for radical changes to American policing, it is a need that the Chauvin verdict cannot paper over. Yet there was an uncomfortable sense that all sides of the political establishment were coming together to say that ‘justice’ had now been done and to redirect the collective rage against the system. President Biden asked the country to ‘unite as Americans’[2], without any mention of real change he would institute. Speaker of the House Nancy Pelosi bizarrely thanked George Floyd for ‘sacrificing [his] life for justice’[3]; the image of a powerful white woman recasting the murder of a Black man as a sacrifice for her and others was a quite macabre display of privilege. Significantly, there was a lack of focus on positive policies and changes to fight systemic racism, from Democrats or Republicans. The so-called ‘George Floyd Justice in Policing Act’, aimed at police powers and accountability, has, at the time of writing, missed the President’s deadline of 25th May 2021, and lawmakers continue to debate how to hold officers accountable.

As practising criminal lawyers in England and Wales, we are acutely aware of the massive imbalance in the system on this side of the Atlantic, with disproportionate numbers of Black defendants within the criminal justice system[4] and a concerning rise of Black deaths in custody. In October 2020, an inquest concluded that the death of Kevin Clarke, a 35 year old Black man, was contributed to by restraint and highlighted serious failures involving Metropolitan police officers and others. During the restraint, which lasted 33 minutes, Clarke told officers ‘I can’t breathe’ and ‘I’m going to die’[5]. More recently, the Independent Office for Police Conduct (IOPC) reported[6] that a police officer had been dismissed after repeatedly bludgeoning a vulnerable 17 year old Black girl with learning disabilities[7] more than 30 times in just one minute.

Last year we acted as Legal Observers at the Black Lives Matter protests in London, in a coalition of solicitors, barristers and lawyers organised by Black Protest Legal Support UK. We observed first-hand police officers mocking Legal Observers, antagonising and assaulting protesters, charging protesters, heavy-handed use of kettling tactics and instances of officers showing a disproportionate light touch to white protesters, while Black, Asian and ethnic minority protesters were treated with scant disregard for their personal safety. To those impartial Legal Observers present at the protests, it was a shock the following day to see politicians such as Boris Johnson and Priti Patel claim that there was a violent element within the protesters that had caused the protests to descend into violence[8]. In fact, many Observers present reported[9] that the reality on the ground was that the majority of any violence had been whipped up and perpetrated by police actions that were potentially unlawful. In November, the Network for Police Monitoring published a report which pulled together eyewitness accounts and identified excessive use of force and disproportionate targeting of Black protesters.[10]

Concerns remain over how and why protests are policed in this manner. At the more recent Sarah Everard protests, even impartial Legal Observers were arrested by police.[11] Yet only a few months after last summer’s protests, the Government was engaged in passing legislation aimed at restricting the right to protest. The effects of the Police, Crime, Sentencing and Courts Bill would be to lower the legal tests required of the police to exercise its powers. Such changes should not be underestimated and there are real concerns that the Bill would impose disproportionate controls on free expression and the right to protest. What is clear, is that the right to freedom of expression, and to protest, forms part of the backbone of our rights and freedoms and is something which warrants the utmost scrutiny. The time has come to think about how and whether to police protests, to address the systemic racism within our criminal justice system and to find real and fundamental ways to challenge the imbalance that criminal lawyers deal with on a daily basis.

Marilyn Vitte and Daniel Robinson
Barristers at Red Lion Chambers
(Views expressed are authors own and do not represent those of people or organisations that the writers may or may not be associated with in a professional or personal capacity, unless explicitly stated)