Report: Declare justice system “institutionally racist” to drive change

Monteith: Urgent action required

The justice system should be declared “institutionally racist” as a first step to tackling judicial racial bias, a report has recommended.

A team of academics from Manchester University led by Keir Monteith KC found that people from Black backgrounds were “by far the most common targets of judicial discrimination”.

The report Racial Bias and the Bench, a response to the Judicial Diversity and Inclusion Strategy (2020-25), included a survey of 373 legal professionals, two-thirds (67%) of whom were barristers, carried out earlier this year. Solicitors made up over 17%.

Well over half of the survey respondents (214) described themselves as white British, while almost all of the remainder were of Asian, black British, Caribbean, African or mixed racial origin. More women than men responded.

Almost all (95%) said racial bias played some role in the processes and/or outcomes of the justice system, with 63% saying it played a “significant role”, and 29% a “fundamental role”.

A majority (56%) said they had witnessed one or more judges acting in a racially biased way towards a defendant.

This was “most frequently directed towards Asian and Black people”, with people from Black backgrounds “by far the most common targets of judicial discrimination”. The most frequently mentioned sub-group was young Black male defendants.

Just under half of respondents who said they were part-time judges had received any race training in the preceding three years, but a large majority (86%) of legal professionals who had received training found that it was useful.

A handful of the respondents who made detailed comments (nine out of 119) reported that they had not witnessed any racial bias in the system, one of them commenting: “Judges are by definition in our jurisdiction impartial, and of course colour blind.”

However, there were many more observations of racial bias. One lawyer commented: “In relation to judges acting in a racially biased way, there have been many and repeated examples.”

Another described the criminal justice system as “fundamentally racist”, while another said: “I have seen many instances where the pain and suffering of Black people at the hands of the state is trivialised by judges.”

There was also “a great deal of concerning commentary about racial bias and sentencing”, for example a judge making decisions to remand defendants “based on ethnicity and nationality”.

Nearly half of the comments by respondents (53) mentioned anti-Black racism. One lawyer said: “[In] every single case I have had with a Black parent, they have been described as ‘aggressive’. EVERY case (I have kept a tab).”

Academics said that only by publicly acknowledging and recognising that the justice system was institutionally racist could “steps for real progress be made such as redrawing the founding objectives of the judicial diversity and inclusion strategy”.

The strategy made “no reference to racial bias or racism” and instead stated that judicial appointments were “currently made ‘on merit following a fair and open competition from the widest range of eligible candidates’”.

Academics described this as “denial about exclusionary structures and attitudes”. They said there was an “almost wholesale scholarly neglect of the topic of racism in the English and Welsh judiciary”, in contrast to other jurisdictions, such as the US.

They added that, since 2020, there had been only one published Judicial Conduct Investigations Office decision in which racism was found against a judge, in that case 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.”

In his foreword to the report, Leslie Thomas KC commented: “When we stop and look at the hard data presented in this work, society can no longer pretend. Judges can no longer hide and those that seek to preserve the status quo cannot plead ignorance.

“We cannot ignore what is coming. As what was once considered to be activism now becomes mainstream, those who choose to ignore the obvious injustices do so at their peril.”

In a seminar last night to launch the report, Mr Monteith said the key finding of widespread racial bias was of “constitutional significance” and “requires immediate urgent action”.

He explained: “This is legal professionals in 2022 telling us about their perceptions of the role of racial bias in the justice system.” He said a “structural shift” needs to happen, bringing representation for ethnic minorities in the higher reaches of the judiciary.

Co-author Professor Eithne Quinn of Manchester University highlighted that many judges and other legal professionals had had no racial awareness training whatsoever, leading to a culture where racism could “fester”.

She said some respondents had reported judges showed obvious signs of racial insensitivity.

The Equal Treatment Bench Book, the manual given to all new judicial appointees, had many admirable sections on race, but nevertheless had key omissions and “inadequacies” and needed updating, she continued.

“High-quality training” on racism was necessary for all judges, she said.

There were some very good examples of “strong racial literacy” among judges that showed there were pockets of best practice within the judiciary, but these examples were unfortunately “rare”.

Mr Thomas said there was no way of knowing how judgments would have been different had there been a “genuinely diverse judiciary”. He hoped the report would set out a “roadmap for change”.

University of Georgia law Professor Andrea Dennis, also an author of the report, gave an American perspective. As in the UK, judges in the higher courts in the US were overwhelmingly male and white, she said.

She mentioned that the American Bar Association had improved its approach to the treatment of minorities, including earlier this year mandating the teaching of race awareness in law schools. It remained to be seen whether this measure would have an impact.

Solicitor Stephanie Needleman, legal director of JUSTICE, said progress in achieving equality within the judiciary was far too slow. A 1992 report by the organisation described a situation very similar to today.

    Readers Comments

  • Malcolm Knott says:

    This proposal is dangerous nonsense. It would deem all judges to be racist, which would be patently unjust, factually absurd and a gift to the anti-white activists who now infest the race relations industry.

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