A study into racial bias in the justice system has raised questions about racial attitudes and practices.
The report, Racial Bias and The Bench, by the University of Manchester was published in November 2022, and its surveys of 373 legal professionals reveal that racial bias – a form of prejudice based on an individual’s race – plays some role in the processes or outcomes of the justice system in England and Wales.
The study disclosed that people from black communities – lawyers, witnesses and defendants – are the most common targets of judicial discrimination, meaning they are treated unequally, and that racial discrimination by judges is most commonly directed towards Asian and black people.
The study raises concerns about access to fair trials for defendants and equal opportunities for professional development for legal professionals. It begs the question how and why such biases have remained unchallenged for so long.
The report also criticises the guidance given to all judges on appointment, the Equal Treatment Bench book, in its failure to acknowledge anti-black racism in the justice system – and responds to the Judicial Diversity and Inclusion Strategy 2020-2025 launched by Lord Chief Justice Lord Burnett, whose purpose is to enhance diversity in the judiciary. Researchers found that the strategy does not consider the issue of racism and that the conclusions of the strategy – that progress has been made towards a more equal system – are far different from the findings of the University of Manchester report which highlights racism in the profession.
Findings of the report
Overall, the findings suggest that racial bias in the criminal justice system is still significant, with 63% of legal professionals saying it plays a significant role and 95% saying it plays at least some role. Over half of the survey respondents stated they have witnessed judges acting in a racially biased way towards a defendant – some even referred to elements of white supremacy existing in the courts or judges treating evidence by people from other countries with scepticism.
Racial discrimination by judges is directed towards Asian and black people most often – young black male defendants in particular, with one respondent stating that there are “too many incidents to describe. Main thing is racist sentencing of young black males.” One incident highlighted how young black male defendants are less likely to be given a suspended sentence than young white defendants in the same position. This underlines the fact that racial bias is prominent, especially in cases of defendants being in the same situation where the only difference is their race or ethnicity.
Racial bias is also apparent in magistrates’ courts. One respondent describes their experience with a client, where they provided a “good defence” and the bench consisted of “two old posh white ladies”. They said they knew the bench would convict their client – who was a black British youth of no previous convictions – from the start because of how they looked at him.
Survey evidence indicated that in magistrates’ courts the prevailing view was that police were always correct, and magistrates did not believe young black defendants when their account differed from the police’s – the default position was that the black defendant was lying. The Lammy Review, 2017 also pointed out a large amount of racial bias in magistrates’ courts in particular.
Another report, Ethnicity and the Fairness of Jury Trials published in 2017, concluded that although black, Asian and minority ethnic (BAME) defendants are disproportionately charged with offences and tried in front of a jury, they are not disproportionately convicted by juries in England and Wales. This suggests that a problem of racial bias specifically lies within the legal system and with judges and magistrates.
One recommendation in the report to improve the situation of racial bias is to organise compulsory racial bias and anti-racist training for all judges and key workers in the justice system, after the results found only 49% of the survey respondents who have worked as judges had received any race training in the past three years.
“Our report calls for training that is premised on the realities that institutional racism exists in the justice system and that judges, like the rest of us, harbour biases. Without this starting point, any new training won’t work.” Professor Eithne Quinn (lead academic author of the report).
Comparison to the Scottish system
An audit into race and the justice system research in Scotland carried out in 2020, found that there were few sources around the topic, with a wide definition of race and ethnicity being used in the limited amount of research that had taken place.
The research which was available focussed on the justice system as a whole, rather than in the context of the experiences of minority ethnic groups in Scotland.
It found no research into the courts, re-offending, re-imprisonment, community sentencing or witnesses. Most research related to police, hate crimes and victims, rather than the experiences of minority ethnic groups in Scottish courts.
One piece of research which is available, The Ethnic Minority and Foreign National Prisoners Survey, conducted in 2017, found that the majority of respondents described their relationship with staff positively. However, out of the 169 prisoners who responded only 2% were classed as black, 9% Asian and 1% Bangladeshi. This suggests that this research may not have examined the full experience in Scottish prisons for minority ethic groups due to the limited number of people taking part.
This highlights how judicial racism and bias is severely under-examined all over the UK, with Scotland being even less scrutinised than England and Wales. It suggests that there is need for more research, raising questions about how ethnic minority groups are treated and whether reform and education about racial bias are being overlooked. The University of Manchester report also suggested how judicial racial bias and racism seem to be ‘off limits’ for researchers in the US.
The Lammy Review
Shadow Foreign Secretary David Lammy MP, who wrote the review mentioned above, discussed the findings at a meeting with the experts who compiled the Manchester report. The review, commissioned by David Cameron in 2016, was an independent study into the treatment of and outcomes for BAME individuals in the justice system.
“Having met with academics and co-authors from The University of Manchester, I welcome their latest report which adds further evidence and provides feedback directly from members of the legal profession and judiciary.” David Lammy (MP)
Lammy’s 2017 review revealed that his biggest concern was with the youth justice system. From March 2006 to the year ending March 2016, the BAME proportion of young people offending for the first time and the BAME proportion of young people reoffending both increased by 8%. As well as this, the BAME proportion of young prisoners rose from 25% to 41% in the decade 2006-2016.
He worried that the criminal justice system was too slow to identify and react to this problem, suggesting that it could create the next generation of adult offenders. He also raised concerns about the unfair treatment of BAME people in court and prison, discovering that data from 2015 showed BAME defendants in Crown Courts were more likely than white defendants to receive prison sentences for drug offences, even when previous convictions were considered. The report found that many BAME prisoners believe they are discriminated against by staff, causing a desire to rebel rather than reform.
Both reports – the Lammy Review and Racial Bias and The Bench – suggest that there has not been significant reform in issue of racial bias in the justice system. It implies that Lammy’s recommendations – such as the sealing of criminal records to help former offenders find employment – are still relevant and necessary to create an equal system in conjunction with racial bias training for all judicial office holders.
It is clear that work still needs to be done to address racial bias in the justice system.