‘Racial Bias And The Bench’ – An Urgently Needed Report On Racial Bias In The Justice System

In November of 2020, in a year of mass Black Lives Matter protests, Lord Burnett of Maldon, the Lord Chief Justice, launched the Judicial Diversity and Inclusion Strategy (2020-25), which set out objectives and ambitions to increase diversity within the judiciary. Disappointingly, the Strategy fails to consider the issue of racism and racial bias in the context of Diversity and Inclusion.

In response to the strategy, the University of Manchester and barrister Keir Monteith KC have published a report titled Racial Bias and the Bench: A response to the Judicial Diversity and Inclusion Strategy (2020-2025) this October during Black History Month 2022. The report assesses the terms of the Strategy and draws on findings from a new survey of 373 legal professionals and existing research.

What the report finds, combining its quantitative and qualitative data supported by existing research, is evidence of institutional racism in the justice system overseen by judges. It shines a much-needed spotlight on anti-Black racism specifically.

Findings

Racial bias plays a significant role in the justice system. A staggering 95% of the legal-professional survey respondents said that racial bias plays some role in the processes and/or outcomes of the justice system.

Numerous survey comments offered examples of discriminatory practices by judges, with many respondents regarding judicial racial bias as commonplace. Racial discrimination by judges was most frequently directed towards Asian and Black people, with people from Black communities cited by survey-respondents as by far the most common targets of judicial discrimination. The most frequently mentioned sub group was young Black male defendants.

Despite this, since 2020, there has been only one published Judicial Conduct Investigations Office decision in which racism was found against a judge, namely a magistrate, which the report suggests is indicative of a complaints system that is not working properly.

The findings show that the appointment of judges seems to depend very much on ethnicity. The Government’s 2022 statistics state that the conversion rate from application to judicial appointment for Asian and Black candidates was estimated to be 37% and 75% lower respectively than for successful White candidates. Black female solicitors are the least likely to be appointed as a judge. At present, just 1% of the judiciary are Black and there are no Black judges in the High Court, Court of Appeal or Supreme Court.

The report also reveals that race training is neither compulsory nor provided on a regular basis to the judiciary nor to other legal professionals. The Judicial Diversity and Inclusion Strategy makes no reference to racial bias or racism. 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.

Recommendations

The report recognises that racial bias is deeply embedded in our justice system and calls for a multi-pronged and sustained approach to tackling this. A roadmap for change has been set out with the following interrelated recommendations:

1. Acknowledge institutional racism in the justice system.
2. Organise compulsory and ongoing high-quality racial bias and anti-racist training for all judges and key workers in the justice system.
3. Overhaul the whole process of judicial appointments.
4. Create a critical mass of diverse judges reflective of society, rather than occasional and isolated appointments.
5. Publish all judicial research.
6. Revise the Equal Treatment Bench Book.
7. Revamp the process for making complaints and ensure all hearings are recorded and easily accessible.
8. Encourage a culture shift towards antiracist practice by judges.
9. Adopt 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.
10. Institute a robust accountability and implementation strategy to ensure that ‘progress’ is substantive rather than merely procedural and performative.

It is greatly encouraging to see proposed meaningful solutions to address institutional racism in the judiciary and, in turn, to build a fairer, more resilient and more democratically-accountable judiciary.

I am grateful to the authors of the report for their vital research and hope the recommendations are quickly adopted to bring desperately needed structural change in the justice system.

Aneela Samrai is Interim Diversity Champion and a Solicitor in our Housing Law team who specialises in Homelessness, Public Law and Discrimination. She is committed to securing access to justice for all and empowering often vulnerable and marginalised clients to hold the state to account and defend their rights.