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Judicial bias – opening pandora’s box?

Penelope Gibbs
26 Oct 2022

The other day Sir Geoffrey Vos, Master of the Rolls, gave a speech about diversity in the legal profession. He pointed out that judges could forget they came from a relatively narrow social group and create barriers: “talk about elite schools and universities is likely to make those that did not have the opportunity to attend them uncomfortable”. I asked Sir Geoffrey why there was no good research on judicial bias in England and Wales? He obfuscated. But there really isn’t. There is research looking at disparities in sentencing. A study from the Sentencing Council found that in the case of three supply of drugs offences: “for Asian offenders and those in the “Other” ethnic group (which included offenders who were not Asian, Black or White), the odds of receiving an immediate custodial sentence for the three drug offences were 1.5 times the size of the odds for White offenders. The odds of a Black offender receiving an immediate custodial sentence were 1.4 times the size of the odds for a White offender”.

There is no research involving interviews with and observations of judges in England and Wales on bias. If judges wanted this evidence, they could open their doors to academic scrutiny. The lack of such a study speaks volumes. But there is a new report which sheds some worrying light on racial bias in the judiciary. The report sets out the findings of a survey of lawyers about race bias and critiques the whole way the judiciary approaches the issue. It doesn’t pull its punches.

The main source (a survey of lawyers) got 373 responses. I suspect they tended to be from those already worried about judicial bias. So the findings are not representative of all lawyers’ views. However they represent important evidence from lawyers, some of whom are part time judges, about judicial behaviour. Two-thirds of respondents (from all jurisdictions) felt that race played a significant role in the processes and outcomes of the justice system. Many respondents felt judicial bias was endemic: “I have seen many instances where the pain and suffering of black people at the hands of the state is trivialised by judges”. Lawyers felt that bias was evident in body language as well as words “Subtle differences in judicial intervention/questions when speaking to those of different ethnic backgrounds. No smiles, as there had been to the white witnesses. Almost a scowl when speaking to others”. Respondents felt that such signals effected everybody in the courtroom including juries.

Not surprisingly, lawyers thought such bias also affected decision-making “ I have witnessed first hand sentencing disparity between black and white defendants. The black defendant with the least serious offence received an immediate custodial sentence whilst the white defendant received a fine (band e). I have personally represented those defendants one after the other in the same court before the same judge/magistrate”. Respondents felt young black men were particularly likely to suffer from discrimination and pointed to joint enterprise cases where drill and rap music were used to suggest young black men were members of gangs.

The report authors call on judges not just to act in a non-biased way, but to actively fight racism. Some respondents had come across a few anti-racist judges: “This judge listened and engaged with my submissions, then passed a sentence which allowed the defendant to remain out of custody and addressed head on issues of structural racism that have contributed to his offending behaviour, allowing this young defendant to feel seen and heard”. But respondents felt such judges were all too rare.

How can we reduce bias in judicial behaviour and decisions? The first step may be to acknowledge it exists. But the brand new Judiciary uk website suggests racial bias does not exist. If you put racial or unconscious bias into the search box, there are no results. The news pages illustrate the judiciary’s approach to race and faith diversity – they feature two Sikh judges sharing Diwali reflections and four black judges visiting a sixth form. All great activities, but not ones likely to address the incidents of bias highlighted in the Manchester University report.

If the justice system is to gain and retain the trust of minoritised communities, judicial bias can no longer be put in the too difficult box. Lawyers and people with lived experience of the justice system (and many others) want greater judicial diversity and action to address the injustice caused by prejudice. But the lack of judicial response to this report suggests we may wait a long time.