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Is there institutional racism in the criminal justice system?

Penelope Gibbs
16 Nov 2016

The MacPherson report on Stephen Lawrence defined institutional racism as “the collective failure of an organisation to provide an appropriate and professional service to people because of their colour, culture, or ethnic origin. It can be seen or detected in processes, attitudes and behaviour which amount to discrimination through unwitting prejudice, ignorance, thoughtlessness and racist stereotyping which disadvantage minority ethnic people.” 

In 1999, Sir William MacPherson rocked the Metropolitan police by accusing the institution itself of being racist.  Since then there has been a focus on how the police deal with ethnic minority people, particularly with the use of stop and search.  But the way the courts and judges deal with ethnic minority defendants has for the most part escaped scrutiny.   That changed when David Cameron asked MP David Lammy to investigate the issue last year.  The change of leadership might have derailed the process but, on the steps of Downing Street, new Prime Minister Theresa May said “If you’re black, you’re treated more harshly by the criminal justice system than if you’re white”.  So the PM has not just supported the inquiry, but said what many dare not – that there is discrimination in the system.

Lammy publishes his emerging findings today.  They are concerning, particularly on the issue of trust. 51% of ethnic minority people (born in England and Wales) think ‘the Criminal Justice System discriminates against particular groups or individuals’, compared to 35% of white people.  Those are attitudes, but what of the system? Are BAME offenders over-represented? One of the starkest examples is in children’s prisons. There has been a fantastic fall in the overall numbers of children imprisoned, but the proportion of BAME children has risen from 26% to 44% since 2005.

Lammy and his MoJ team are hampered by a lack of good research, particularly as to whether there is any unconscious bias in sentencing. But they are making headway. I have been talking to the review team about diversity in the magistracy. In order to have trust in the system, BAME defendants need to have trust in judges, and that trust is undermined by lack of diversity.  Magistrates (who preside over the majority of criminal cases) should be representatives of the people.  But unfortunately they do not represent our BAME communities, let alone the kind of BAME people (young, poor) who mostly appear in our courts.

According to the latest official stats, only 9% of magistrates (excluding unknown) are BAME – 5% less than in the population. The Humber bench (inc Hull) has 7 BAME magistrates out of 240, and Devon has 8 out of 422. And our research suggested that whole communities, including Roma, Somali, Polish, are missing from the bench. The average magistrate is also much older and more middle class than their communities.  Progressive magistrates (interviewed for our research) are unhappy about the lack of diversity. One said “I’m often on the bench with people like myself who are white, retired, women – a bench of three women like me in the adult court, when the majority of offenders are young Pakistani men, Polish people, young Romanian people. Our bench is 450 magistrates.  Maybe across the board some of that reflects the diversity of the population, but it’s not my experience of the bench”. 

The lack of diversity becomes even more acute in senior positions.  There is no Bench Chair, Advisory Committee Chair, or office holder in the Magistrates’ Association or the Bench Chairs’ Forum (to my knowledge) from an ethnic minority background.

Unfortunately the lack of diversity on the bench is not compensated for by diversity training. New magistrates undertake no specific diversity training, and budgets for all training have been cut in recent years.

The senior judiciary and the government do recognise the lack of diversity in the magistracy but, partly because the problems are worse, most attention, resources and effort are devoted to making the paid judiciary more diverse. Yet the magistracy is no more representative of BAME communities now than it was in 1999.  And everyone seems paralysed by the conundrum of how to increase diversity while recruitment levels are very low – because the number of magistrates has fallen by 11,000 in ten years. Lammy says BAME communities should participate in the criminal justice system in a more formal way. Increasing the number and diversity (in class, age, ethnic group) of BAME magistrates would be a small but significant step.  But in order to take this step the government needs to be brave – either by halting the steep fall in magistrate numbers and/or positive action to favour communities unrepresented on the bench.

Is the criminal justice system institutionally racist? Only an in-depth research study would tell, but I do know that BAME communities are more likely to think it is, if the “representatives of the people” who preside over criminal cases, do not, in fact, represent them.