Judges are essential to the rule of law. We need legal certainty. We need law that is administered consistently and impartially to us all, but our judges are presiding over a justice system where racial bias is prevalent.

This is the conclusion of a report published in November 2022 entitled Racial Bias and the Bench (RBB) – that there is institutional racism in the justice system.

Experts from the University of Manchester commissioned a survey; 373 lawyers and judges responded. A core question asked: ‘To what extent do you think racial bias plays a role in the processes and or outcomes of the justice system?’ Answers ranged on a scale from ‘no role’ (1) to ‘fundamental role’ (5) – 95% of those who responded to this question stated that racial bias plays some role. Racial discrimination by judges is most frequently directed towards Asian and Black people, according to the survey, with young Black male defendants being the sub-group most frequently mentioned.

Almost a third of respondents provided first-hand accounts of racial bias, racism and – on occasion – anti-racism. Some examples include:

I have seen many instances where the pain and suffering of Black people at the hands of the state is trivialised by judges.

Certainly a sense that stereotypes about individuals from non-White racial backgrounds is pervasive.

Unconscious bias plays a major role in the justice system.

I would have to write for pages and pages to express the racism I have seen.

* The tendency to always believe the police. I heard ‘why would the police lie?’ more times than I can count.

I practise in extradition and immigration. The problems often feel systemic.

* This remark is particularly poignant given interim findings in the Casey Review and Sunday Times exclusive on the culture of racism, misogyny and corruption in the Gwent police force.

Anti-racist behaviour was also investigated: 26% of respondents stated that they had seen one or more judges adopt an anti-racist approach in court although, sadly, the preponderance of survey evidence was of racial bias.

RBB is the culmination of a year of analysis and research. The authors spoke to experts in race awareness training, lawyers, judges and equality and diversity leads. Section 1 contains the survey results and analysis – evidence of racism and racial bias in the justice system. Section 2 focuses on race training and proposals in the Judicial Diversity and Inclusion Strategy 2020. Section 3 considers questions of racial equality and representation in the judicial workplace.

The evidence presented in the report is compelling and the detailed findings have worrying consequences for the rule of law and trust in the ‘system’.

Is the LCJ’s diversity strategy working?

Meanwhile, on 5 November 2020, at the height of the Black Lives Matter protests, the Lord Chief Justice launched a five-year strategy (the ‘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. 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 Supreme Court of the United Kingdom, which has never appointed an ethnic minority justice, filled its 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 1% since 2014. RBB found a profound disparity between the conclusions of the Strategy – that the justice system is basically fair, and that progress has been made – when compared to the widespread views and experiences of the legal professionals surveyed.

The 10 recommendations for change

RBB makes 10 recommendations for change (see box above). 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 in a National Judicial College survey. A good example in the UK is the Bar Council. In its Race at the Bar report in November 2021 the Bar Council talked about intersectionality in the justice system and then 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 . 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.

On the right side of history

When we stop and look at the hard evidence presented in RBB, society must no longer pretend, judges must no longer hide and those that seek to preserve the status quo must not plead ignorance. What was once considered to be activism has now become mainstream. Those who choose to ignore the obvious injustices do so at their peril. As has been said so many times before, they will find themselves on the wrong side of history.

Change is coming that is for the good of all, and we must all play a part in bringing about that change. Judges and lawyers must be anti-racist. Lawyers need to expose the toxic impact of racism on the lives of those that are brought before the courts. Judges need to break new ground by acknowledging that racism plays a role in the justice system. These anti-racist decisions along with implementation of the 10 RBB recommendations will help protect and revitalise the rule of law and civil rights for all citizens. 

‘[Institutional racism] persists because of the failure of the organisation openly and adequately to recognise and address its existence and causes by policy, example and leadership. Without recognition and action to eliminate such racism it can prevail as part of the ethos or culture of the organisation. It is a corrosive disease.’
W. Macpherson (1999) The Stephen Lawrence Inquiry Report, para 6.34

The 10 RBB 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 anti-racist 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.

Racial Bias and the Bench: a response to the Judicial Diversity and Inclusion Strategy (2020-2025) can be read in full hereand its launch event viewed here. The report’s authors are Keir Monteith KC, Professor Eithne Quinn, Professor Andrea L Dennis, Dr Remi Joseph-Salisbury, Erica Kane, Franklyn Addo and Professor Claire McGourlay. Professor Leslie Thomas KC wrote the foreword to the report.

Further reading

Read Racial Bias and the Bench in full here. See also Making Black Lives Matter in the CJS: a guide for antiracist lawyers, Howard League for Penal Reform, 2021; ‘The antiracist court’, Abimbola Johnson, Counsel Nov 2021; ‘The anti-racist chambers’, Raggi Kotak & Laurie-Anne Power KC, Counsel Dec 2021; ‘Race at the Bar: the time is now’, Barbara Mills KC & Simon Regis, Counsel Jan 2022; ‘Black inclusion & the Commercial Bar’, Krista Lee KC, Gary Pryce & Brie Stevens-Hoare KC, Counsel Nov 2022.