Racial bias and the bench

A new report from the University of Manchester and a part-time crown court judge raises urgent questions about racial attitudes and practices in the justice system.

Although the judiciary wields enormous power over individuals, its operations are alarmingly under-scrutinised, and one area that has remained largely beyond examination is judicial racial bias. The research by the University of Manchester and a part-time crown court judge who is a training tutor for the Judicial College, is an extensive study and the report draws on a survey of 373 legal professionals.

Context

Black barristers are under-represented in the judiciary, and also report experiencing racism from judges, magistrates and panel members. On top of this, The Lammy Review and the Race at the Bar report both found sentencing outcomes are harsher for many ethnic minority defendants than their white counterparts.

With raised public concern about the treatment of ethnic minority communities in the justice system of England and Wales, serious questions are being asked of judges and the judiciary. Despite the disproportionate number of ethnic minority people criminalised by the justice system, new recruits to the predominantly white and privileged sector of the judiciary currently receive little or no formal guidance on racial literacy and antiracism.

In November 2020, the Judicial Diversity Committee of the Judge's Council launched the 'Judicial Diversity Strategy 2020-2025' to tackle bias and the lack of diversity within the judiciary.

The research project considers how judicial officer holders are trained and how racial bias is tackled in comparative contexts.

Findings

95% of legal professional who responded to the survey said that racial bias plays some role in the processes or outcomes of the justice system, and more than one quarter (29%) said it played a ‘fundamental role’. A majority of respondents had witnessed one or more judges acting in a racially biased way towards a defendant and in their decision-making.

Racial discrimination by judges is most frequently directed towards Asian and Black people according to the survey, with people from Black communities – lawyers, witnesses, defendants, etc. – by far the most common targets of judicial discrimination. Young Black male defendants were the subgroup most frequently mentioned as targets of judicial bias.

The survey did find that some judges are already acting in ‘antiracist’ ways by being conscious of and knowledgeable about racism, and seeking to mitigate it – however, only a minority of respondents had ever seen a judge act in this way.

Race training is neither compulsory nor provided on a regular basis – only 49% of the respondents who have worked as judicial office holders had received race training in the preceding three years.

The report emerges as serious questions are already being asked about the treatment of ethnic minority people in the justice system. Black barristers are underrepresented and report experiencing racism from judges, magistrates and panel members. On top of this, The Lammy Review and the Race at the Bar report found that sentencing outcomes are often harsher for ethnic minority defendants.

Conclusions & Recommendations

The report concludes that the justice system is institutionally racist and calls for the Lord Chief Justice and other senior judges to acknowledge this. Recommendations include:

• Ongoing compulsory high quality racial bias and anti-racist training for all judges and key workers in the justice system
• An overhaul of the whole process of judicial appointments
• A commitment to publish all judicial research
• A revision of the Equal Treatment Bench Book so that it acknowledges that judges, like everyone else in society, have socially and psychologically ingrained biases that they need to understand and challenge.

The report says that racial literacy and a commitment to anti racism should be considered key competences for entering and progressing in the judiciary.