Our judges are presiding over a justice system where racial bias is prevalent, a recent report has found, yet the official diversity strategy is silent on the issue. Co-author Keir Monteith KC describes the main report findings and recommendations here.
Racial bias and the bench (RBB), published in October, concluded that there is institutional racism in the justice system, with a survey of 373 lawyers and judges commissioned by experts at the University of Manchester finding that 95 per cent believe racial bias plays some role in the processes and/or outcomes of the justice system. In addition, 56 per cent of the survey respondents stated that they had witnessed one or more judges acting in a racially biased way towards a defendant. Racial discrimination by judges is most frequently directed towards Asian and Black people according to the survey, with people from Black communities – lawyers, witnesses and defendants – by far the most common targets. Young Black male defendants were the subgroup most frequently mentioned.
The survey also investigated anti-racist behaviour, with 26 per cent of survey respondents stating that they had seen one or more judges adopt an anti-racist approach in court. The acknowledgment of racism by the judiciary was captured by a number of the people surveyed, who provided examples of good practice where judges ‘addressed head on issues of structural racism ... allowing [a] young defendant to feel seen and heard’ and where ‘[t]he judge further acknowledged how difficult it was for me as a Black barrister to make such a submission’ (page 35). The approach of that judge is a breath of fresh air – with that honesty, we have hopes for justice. But sadly, the vast majority of the survey responses provided evidence of racial bias.
RBB is the culmination of a year of analysis and research, with the authors speaking to experts in race awareness training, lawyers, judges, and equality and diversity leads. The report was launched online on 18 October 2022. The speakers included myself, Professor Leslie Thomas KC, Professor Eithne Quinn, Dr Remi Joseph-Salisbury, Professor Andrea Dennis and JUSTICE’s Stephanie Needleman. It was chaired by Professor Bridget Byrne. Hundreds attended online. The impact has been extremely positive, ranging from extensive reports in the media to judges contacting the authors for help and advice on how to move forward in an anti-racist way. The report and the
recording of the launch have been shared and cited numerous times.
Key findings
The report is split into three sections. Section 1 is its bedrock, where you will find details and analysis of the survey findings – upsetting and troubling evidence of racism in the justice system and racial bias in the courtroom. It is there. It cannot be ignored. It cannot be explained away. Section 2 focuses on race training and education for judges. It considers the lord chief justice’s 2020 proposals for change in the
Judicial Diversity and Inclusion Strategy 2020–2025 and what can be learned from previous training initiatives, and reviews the
Equal treatment bench book (Judicial College, February 2021), while making proposals for fundamental change. Section 3 considers questions of racial equality and representation in the judicial workplace. It reviews the strategy’s claims about a level playing field for recruitment and contrasts these with government statistics, JUSTICE reports and evidence from the survey respondents. Each section leads in the same direction: the judiciary has to be honest about the problem of racism in the justice system. The judiciary has to be aware that empty diversity and inclusion exercises that sound like the real deal, but lack substance, distract attention away from the urgent need for significant anti-racist change in the justice system.
During RBB’s survey, 119 legal professionals took time out of their busy lives to write down what they had witnessed and experienced in and out of the courtroom – first-hand accounts of racial bias, racism and, on occasion, anti-racism. Here are three examples (there are many more):
1.I would have to write for pages and pages to express the racism I have seen (page 13).
3.I practice in extradition and immigration. The problems often feel systemic (page 18).
The conclusion of RBB has worrying consequences for the rule of law and trust in the ‘system’. Indeed, the recent YouGov poll commissioned by the Good Law Project
found that 31 per cent of the people questioned said that their level of trust in the judiciary had recently declined.
You can’t address racism without talking about it
Meanwhile, two years ago, on 5 November 2020, at the height of the Black Lives Matter protests, the lord chief justice launched the
five-year strategy to increase the diversity of the judiciary. While the strategy initiated some potentially positive work, it suffers from a fundamental flaw: it does not consider the issue of racism. Indeed, the words ‘racial bias’ and ‘racism’ are not mentioned, and the word ‘race’ appears only once, in an easily overlooked footnote. The early signs are that the strategy is not working. In 2022, the UK Supreme Court, which has never appointed an ethnic minority justice, filled two court vacancies with retired white male judges. The Court of Appeal has never appointed a Black judge and the
proportion of Black judges has stayed at one per cent since 2014.
RBB’s launch took place in Black History Month. It’s worth taking a minute to reflect on the contrast between the importance of talking about Black history, the struggles, the ongoing struggles, and the institutional racism in our public bodies, and the silence about racism in the five-year strategy; a strategy that is designed, it says, to deal with the lack of diversity within the judiciary. Racism within an institution has to be talked about openly and honestly; not erased, ignored and rewritten as if there is no problem. In addition to the findings about racial bias, racism and the absence of those words in the strategy, RBB found that:
•Race training is neither compulsory nor provided on a regular basis to the judiciary (nor to other legal professionals). Only 49 per cent of the survey respondents who have worked as judges had received any race training in the preceding three years.
•The appointment of judges seems to depend very much on ethnicity. The government’s
2022 statistics demonstrate that the conversion rate from application to judicial appointment for Asian and Black candidates was estimated to be 37 per cent and 75 per cent lower respectively than for successful white candidates. When intersectionality is taken into account the discrepancy is even more stark: ethnic minority female solicitors are the least likely to be appointed as a judge.
•Despite the figures above, the strategy states that judicial appointments are currently made ‘on merit following a fair and open competition from the widest range of eligible candidates’ (page 6). This is in denial about exclusionary structures and attitudes that shape decision-making and largely ignores over 50 years of proposals by JUSTICE for structural changes.
•The Equal treatment bench book, given to all judges on appointment as a key reference point, contains just one chapter (chapter 8) devoted to race, which includes little acknowledgement of anti-Black racism. This is despite the serious disproportionalities in the representation and treatment of Black people in the justice system. This important book is considered in some detail in section 2 of the report.
•Since 2020, there has been only one published Judicial Conduct Investigations Office decision in which racism was found against a judge (a magistrate). The lack of correlation between the single upheld complaint and our survey results (and previous reports of racism) indicates that the complaints system isn’t working properly.
Recommendations
In response to these findings, RBB makes 10 recommendations for change. First and foremost, it asks the lord chief justice to publicly acknowledge that the justice system is institutionally racist. This request is no more than what leaders of many other institutions have done and what a group of US judges have said.
2See: Race at the bar: a snapshot report, The Bar Council, November 2021, page 12. See also the Bar Standards Board’s own anti-racist statement and request for chambers to issue anti-racist statements. In the US, see the public resolution passed by the Conference of Chief Justices/Conference of State Court Administrators. A good example in the UK is The Bar Council’s 2021
Race at the bar report, which said:
The Bar Council recognises that we live in a society in which interpersonal, structural and institutional racism contribute to differing experiences and outcomes for individuals based on their race and ethnicity. There is an additional impact where race and ethnicity intersect with other protected characteristics such as sex or religion, or with poverty or social class.
This intersectionality is especially acute in the legal profession, where we are conscious that barristers work as part of a legal system affected by structural racism, particularly in the criminal justice system.3The Lammy Review, September 2017. For those who work at the bar, their career is not purely based on an objective meritocratic evaluation of their own ability. Access to the bar, career progression at the bar, access to the most prestigious and best paying work, retention, and working environment are all bound up with forms of privilege and power (page 12, emphasis added).
All 10 of the RBB’s recommendations are contained in the box below.
RBB’s recommendations
1Acknowledge institutional racism in the justice system. The lord chief justice and leadership judges should, like The Bar Council has done, publicly acknowledge and recognise that the justice system is institutionally racist. Only by admitting the problem can steps for real progress be made, such as redrawing the founding objectives of the Judicial Diversity and Inclusion Strategy.
2Organise compulsory and ongoing high-quality racial bias and anti-racist training for all judges and key workers in the justice system.
3Overhaul the whole process of judicial appointments.
4Create a critical mass of diverse judges reflective of society, rather than occasional and isolated appointments.
5Publish all judicial research.
6Revise the Equal treatment bench book.
7Revamp the process for making complaints, and ensure all hearings are recorded and easily accessible.
8Encourage a culture shift towards anti-racist practice by judges.
9Adopt a multi-pronged approach that sees each of the above recommendations as interrelated and inadequate in isolation or without the support of the other interventions.
10Institute a robust accountability and implementation strategy to ensure that ‘progress’ is substantive rather than merely procedural and performative.
Call to action
So it’s time for a whole lot of change. Judges and lawyers have to be
actively anti-racist. Lawyers need to make submissions and call evidence exposing the toxic impact of racism on the lives of those who are brought before the courts, and judges need to break new ground by recognising and taking into account the fact that racism plays a role in the justice system. These anti-racist decisions will set a historic precedent for change. If, during anti-bias training, racism isn’t mentioned or you’re not being encouraged to be anti-racist, then raise your hand and ask why. If you’re in charge of the training or writing a guide, then have a look at who is on your committee and ask yourself if it is truly representative, and, if not, reconstitute yourselves.
4See the RBB section, ‘History of race training’, on page 25 and information on the Ethnic Minorities Advisory Committee for some additional ideas. The Bar Council has recognised that talking about racism can be uncomfortable.
5See its race training. It is. However, being the victim of racism as a result of the justice system is life-changing, unfair and corrodes the rule of law. That’s exactly why we have to have these difficult conversations, publicly acknowledge institutional racism and ensure the 10 RBB recommendations are acted upon immediately.