Judges needed to “speak out” over racism in the judiciary and counsel should challenge the bench when they witness it, two leading barristers have argued.
Keir Monteith KC, who led an academic report into racism and the judiciary last year, said that “nothing significant” had happened since then, apart from minor revisions to the Equal Treatment Bench Book.
Most of the lawyers who responded to the research by Manchester University said they had witnessed judges acting in a racially biased way towards defendants, with people from Black backgrounds “by far the most common targets of judicial discrimination”.
Mr Monteith said that, if anti-racist judges did not speak out, there would be another report in five or 10 years’ time, which will “no doubt highlight how things have got worse”.
He went on: “I can see, with the right individuals, things changing quite quickly. I see lawyers who are up and coming, and a fantastic number of them don’t take any nonsense and are anti-racist.
“As a result of the report, I have been contacted by judges who are going places and are very interested in developing anti-racist training.
“It would be an investment in the future if the government, or the next government more likely, puts some resources into having a truly anti-racist justice system.”
Speaking on a Transform Justice podcast titled Can the Judiciary Become Anti-racist?, Mr Monteith, based at Garden Court Chambers, said the first step would be an acknowledgment that the justice system is institutionally racist. “If you can’t acknowledge the problem, you’ll never be able to fix it.”
Abimbola Johnson, a barrister based at Doughty Street Chambers and counsel to the UK Covid-19 inquiry, told the podcast about one judge who routinely asked defendants of colour about their immigration status, even if it had “no relevance” to the case.
“He never asked a White defendant about it. If the very first thing you do is to question someone’s legal status in a country, it sets a tone that they are not one of the people who are welcome in the room and you will take it account in how you interact with them.”
Ms Johnson said the judge could have seen their immigration status from the documents, but he was “enjoying it”.
She went on: “I thought it was appalling. I would challenge him on it. I don’t think I ever saw a White barrister challenge him on it. We really do have a duty as counsel to remain alert to these examples of injustice and challenge them.”
Ms Johnson said she could understand why ethnic minority barristers under-reported the racism they saw around them.
“It is extra burden on us and an aspect of work that we would not rather not take home. There is a concern that we will not be believed.
“What about the people who don’t have that burden but do have a duty of care, not just to their clients, but also as an officer of the court, to ensure they are working in a system that is fair?”
Mr Monteith said training was “not the answer” and “although it is superficially attractive, it is clearly not working”.
He went on: “Training does not provide an answer to the problem. It is an acknowledgement of the problem of institutional racism.”
He added that the Equal Treatment Bench Book needed a “significant review” and there should be anti-racism experts on its editorial board, which “should not be entirely made up of judges”.