The Manchester University report Racial Bias and the Bench (RBB) was published in November 2022 and concluded that there was evidence of ‘institutional racism in the justice system – presided over by judges’. The report authors had commissioned a survey in which 95% of legal-professional respondents said that racial bias played some role in the processes and/or outcomes of the justice system.

Five months later, on 26 April 2023, the report’s conclusion and survey results were tested at the highest level. The Court of Appeal was asked to quash six convictions because ‘there was evidence of some jurors being unduly pressurised by others and evidence of potential bias on grounds of race’. Although the evidence was crystal clear, as detailed below, the three judges refused the application and failed to even acknowledge that racism had existed in the jury room noting simply that: ‘If any juror did express racist views, [they were] of course quite wrong to do so’ (emphasis added).

A day before the verdicts, some jurors were seen returning to court crying. When the unanimous guilty verdicts were delivered, a number of jurors seemed, to the lawyers present, to be visibly distressed. Later that very same day, two jurors contacted the defendants via social media. One of these jurors messaged that ‘some of them [jurors] said some disgusting racist stuff’ for which they and another juror had ‘berated them’. Later in the exchange with the defendants the juror said: ‘No one wanted to send you down, we were all very reluctant to.’ The juror was subsequently interviewed by the police and told them that ‘[they] should probably have reported the racist comments which [they] overheard but had not felt confident enough to do so’. The other juror told the police that a lot of jurors felt pressured that they had made the wrong choice, and this juror was struggling to come to terms with this. The juror had wanted to make peace with the applicant and say it was not personal. They said they had felt pressure from ‘the older generation and… had made [the] decision without being sure of the guilt of one applicant’. The juror told one of the defendants that the split was 50/50.

To assess the safety of the convictions, the court had to ask itself whether there was ‘any basis for thinking that the verdicts were affected by actual or apparent bias’. Despite unequivocal evidence of racism and pressure in the jury room the Court of Appeal concluded that the comments of the juror ‘... may be no more than an expression of [their] obvious dislike for the juror whom [they allege] to have displayed a racist attitude. There is nothing in [their] account to the police which provides any evidence that either [they] or any other juror decided the verdicts on a basis other than the evidence in the case.’ The court noted that the other juror ‘does not make similar allegations’. The linked issue of jurors being placed under undue pressure by other jurors is not mentioned; the evidence relating to the jury’s deliberations was ruled inadmissible; and the court refused to allow matters to be investigated further by the Criminal Cases Review Commission.

So, how did three experienced Court of Appeal judges conclude that the verdicts were not affected by actual or apparent bias/racism when they were explicitly told that various jurors: said some ‘disgusting racist stuff’; acknowledged they should have reported these racist comments to the judge; had been pressured; were visibly upset; and had committed a crime by contacting the defendants post-verdict to apologise and explain what went on in the jury room?

RBB provides answers: the Judiciary’s inability to recognise the pervasive impact of institutional racism and complaints of racism; the failure of the Judiciary to even mention the topic of racism in its 2020-2025 Judicial Diversity and Inclusion Strategy; and the lack of an anti-racist approach in the Equal Treatment Bench Book (ETBB). The RBB survey produced written evidence from legal professionals describing judges trivialising and shutting down conversations of race and racism when they arose. The comments included ‘refusal to accept the potential for racism in court at all’ and ‘judges are routinely ignorant and dismissive of issues pertaining to race often asserting that “we don’t see colour”.’

Since RBB’s launch in 2022 there have been meetings with the Lord Chief Justice, MPs and other stakeholders. A number of the report’s findings are supported in a delayed report Judicial Diversity: Barriers and Initiatives (February 2023) prepared for the Ministry of Justice by The National Centre for Social Research. The response to the report from those inside and outside the legal system has been extremely positive. However, the Judicial Diversity and Inclusion Strategy continues without any reference to combatting racism; the so-called trickle-down judicial diversity training has been rolled out in a vacuum and the ETBB still requires fundamental reform. There are no Black judges in the Court of Appeal, the Supreme Court remains completely White and only 1% of judges are Black.

In these circumstances the rejection of the appeal in R v Essa is unsurprising and the applicants join the long list of miscarriages of justice for people of colour. As one of the lawyers involved said: ‘I felt quite bruised and my faith in the appeal system massively dented after this hearing.’ The total sentence for these appellants is 34 years.

The ramifications for society, justice and democracy are severe. You can’t have a fair trial or appeal; hold others to account; hold organisations to account or hold the state to account if the legal system is institutionally racist. As a lawyer of colour, you can’t work effectively, progress or succeed if the system is institutionally racist. Part of the reason for the present criminal court backlog and prison crisis is institutional racism – too many Black defendants prosecuted under joint enterprise and too many Black people locked up for longer than their White counterparts.

This injustice has to end. I will highlight three of the 10 RBB recommendations and for each I would ask that you speak to your networks, publicly endorse RBB and send a copy to your MP:

  • RBB recommendation 1 – Our first recommendation is that the Lady Chief Justice should publicly acknowledge institutional racism within the legal system and with that in mind redraft the five-year strategy to increase racial equality within the legal system. As The Stephen Lawrence Inquiry Report by Sir William Macpherson explained:

‘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.’

  • RBB recommendation 2 – The second recommendation is to organise compulsory and ongoing high-quality racial bias and anti-racist training for all judges and key workers in the justice system. Anecdotal evidence is that the new training is unpopular and just not working.
  • RBB recommendation 6 – The sixth recommendation asks that the Equal Treatment Bench Book be rewritten foregrounding the importance of combating institutional racism, in particular the neglected area of racism against Black people in the courts. The ETBB also needs to start from a recognition that judges, like everyone else, have socially and psychologically ingrained biases that they need to understand and challenge.

The ETBB was revised in April 2023 but failed to implement any of the RBB recommendations. In the summer of 2023 the RBB authors asked nine leading experts in race, racism and cognitive bias to review specific sections of the ETBB and they expressed concern and urged change.

Meanwhile, across the pond we see actions to create a more diverse Judiciary. Of the 166 judges that President Biden has confirmed since taking office, two-thirds are women and two-thirds are people of colour. Significantly, 30 people who have strong backgrounds in protecting people’s civil rights were put into lifetime federal judgeships.

A diverse Judiciary operating within a more progressive culture is much more likely to see the racism that was missed in the case of R v Essa and would help to build a fairer, more resilient and more democratically accountable Judiciary. 

This article is loosely based on a meeting chaired by Gary Younge in London on 7 November 2023 entitled ‘Racial Bias and the Bench one year on – has there been progress in the legal system?’ A recording is available on YouTube.

© Pool/ABACA/Shutterstock

Across the pond: US President Joe Biden (C), Vice President Kamala Harris (R) and Associate Supreme Court Justice Ketanji Brown Jackson (L) walk to the podium to celebrate Jackson’s confirmation on the South Lawn of the White House in Washington, DC, 8 April 2022.

Racial Bias and the Bench: a response to the Judicial Diversity and Inclusion Strategy (2020-2025) can be read in full 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, and Professor Leslie Thomas KC wrote the foreword. See also ‘RBB’s 10 next steps for an anti-racist justice system’, Keir Monteith KC and Professor Leslie Thomas KC, Counsel February 2023.