Black Robes VS White Justice: Judicial Racism, Is The Jury Still Out? An Anlysis Of The Past, Present And Future Of Judicial Racism And Bias In The British Justice System | Independent Newspapers Limited
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Black Robes VS White Justice: Judicial Racism, Is The Jury Still Out? An Anlysis Of The Past, Present And Future Of Judicial Racism And Bias In The British Justice System

Peter Herbert
Posted: Apr 20, 2016 at 10:13 pm   /   by   /   comments (0)

By D P. Herbert O.B.E.

Britain often claims to possess the finest justice system in the world with a colour blind approach to justice. However, as the late Johnnie Cochran observed on his visit to London and Liverpool in 1995, justice is neither colour blind or is it equal. Historically, the justice system has been used to legitimise slavery and then colonialism from Elizabethan England to the post war era and the advent of the Race Relations Act in 1976. The question is the extent to which it is present today.

Recently in a very rare statement on race and diversity in the House of Commons, the Prime Minister Mr. Cameron said: If youre black, youre more likely to be in a prison cell than studying at a top university. And if youre black, it seems youre more likely to be sentenced to custody for a crime than if youre white. We should investigate why this is and how we can end this possible discrimination.

“Only one in 10 of the poorest white boys go into higher education at all.
“There are no black generals in our armed forces and just four per cent of chief executives in the FTSE 100 are from ethnic minorities.. He may have added that there is only One Asian High Court Judge and none of African Caribbean origin after the resignation of Linda Dobbs who recently spoke about her experience as a barrister and as a Judge.

The Zong massacre in 1781, where 132 slaves were thrown overboard en route in Jamaica led the Lord Chief Justice to rule in favour of the insurers that the African slaves were goods that should have been kept alive with the water that was available. The Solicitor General, Justice John Lee, however, refused to take up the criminal charges claiming What is this claim that human people have been thrown overboard? This is a case of chattels or goods.

Blacks are goods and property; it is madness to accuse these well-serving honourable men of murder The case is the same as if wood had been thrown overboard. That case illustrates better than any other the significant role played by Judges in upholding slavery and in the colonies several hundred years of torture and abuse that meant life expectancy in the Caribbean at only 27 years was akin to the worst rates of the Holocaust death camps of Nazi Germany. The consequence for colonialism both in the Caribbean, African and in the Indian sub-continent was that African and Asian life was cheap and expendable.

In 1950s Kenya over 1,090 Kenyans were executed by the British judiciary between 1951 and 1954. This appalling figure represents the most liberal use of the death penalty in British legal history and double the number of those executed by the French during the war of liberation in Algeria ten years later. The courts in Kenya turned a blind eye to the massacres committed in the name of the British Empire over which the sun was setting in the blood of many of its subjects.

The criminalisation of African Caribbean youth and particularly men continued apace often supported by a Judiciary which saw itself as a bastion against this new tide of lawless immigrants. The use of the charge of loitering with intent or sus was used to control the activities of black communities with the racial segregation at work challenged by the Birmingham bus boycott in 1958 and by racial attacks in Notting Hill. There were odd exceptions where British Judges, such as Lord Salmon sentenced white racists attackers using language that clearly condemned racist attacks but these were the exception.

In 1984, the internationally renowned Black activist Stokeley Carmichael known as Kwame Toure, addressed the Society of Black Lawyers at the old Greater London Auithority (GLA) building at City Hall. He spoke eloquently of the need for lawyers to defend the community by any means necessary and to confront the racism in the criminal justice system

In the aftermath of the Handsworth uprising in 1985, Birmingham Magistrates in the case of Akpabio, magistrates commented on the fact that, we treat our coloured population fairly in Birmingham after being challenged about their policy of convicting all defendants against the weight of evidence and giving out immediate custodial sentences regardless of mitigation. The leading black barrister Rudy Narayan famously claimed that to be a black advocate meant having one foot at the Bar and another in the dock.

Throughout the post war era barristers could not even allege racial bias until the former Commission for Racial Equality write to the Bar Council in 1988 and agreed that this had to be permitted without a barrister being reported for misconduct. This followed a case in the Birmingham Employment Tribunal where Rudy Narayan had been reported precisely for that reason.

In 1988 Honour Judge Prosser, the Resident Judge of Cardiff Crown Court demanded to know where counsel was born in the process of hearing his application for a multi-racial jury. The Court of Appeal subsequently quashed the conviction and sentence in the case of R v Royston Ford (1989) 3 AER 445, protecting the trial judges outrageous threats by asserting that the barrister must have been perceived to be politically motivated.” At the Crown Court D applied to the judge for a multiracial jury. The judge, under the misapprehension that counsel was about to use the case as a platform for racial haranguing, refused the application and, later, was intent on stopping defence counsel from asking any question which had any tinge of colour in it.

Racial bias was evident in numerous examples of racist remarks passed from the bench. The Society of Black Lawyers (SBL), after a historic visit to Howard University to meet civil rights lawyers in the US met the Lord Chancellor Lord Mackay to advocate race training for all members of the Judiciary which was resisted by the Judicial Studies Board and many High Court judges.

There are currently three cases going through the system which are exposing the lack of competence on race issues at the heart of the Judiciary. The first in time involves an Immigration Judge who complained to a local presiding Judge of disparity in the distribution and management of his workload as well as some other disparaging background comments from a white male, Senior Immigration Judge (SIJ). Rather than investigate the complaint properly the African female was allegedly sent threatening emails, some with words in capital letters, had the details of her complaint spread around her sitting centre and was effectively placed in Coventry. None of the three white male Judges responsible were suspended or moved from post. An internal inquiry failed to address the Equality Act 2010 and looked simply at misconduct which unsurprisingly it failed to find. The case is now subject to two Employment tribunal claims.

The second case now public, involved D P Herbert O.B.E. for allegedly making a public criticism of an electoral college Judge who had banned the former Mayor of Tower Hamlets from holding any public office for 5 years. Judge Herbert and many others objected forcibly to the use of the phrase by the Electoral College judge that Rahman had played the race card. The allegation resulted in a nominated Judge, Underhill J recommending that Herbert be given a written warning for criticising another Judge about race contrary to the regulation.

Neither the JCIO nor the nominated Judge considered Herberts rights under s9 and s14 of the Human Rights Act on the protection offered by s27 Equality Act 2010 that offers protection form victimization for speaking out about matters that may be contrary to the Act itself in its broader sense. The Lord Chief Justice has now intervened to refer the matter to a disciplinary panel. It is deeply disturbing that the Judicial Conduct regulations make absolutely no mention of the Whistle Blower and Protected Act provisions of the relevant legislation and that neither the staff at the JCIO not the nominated Judges appear to be aware of it. The disturbing feature of Herberts case is that he was made subject to a bullying attempt to prevent him sitting as a Judge by threatening to have him suspended without notice and without a report being made to the Lord Chief Justice. This was only withdrawn after Herbert pointed out the case of his three white colleagues whom had not been suspended facing a far more serious allegation of ongoing victimization and bullying.

The third case, involved a clear case of Judicial independence that has been converted into an allegation of misconduct after a cursory and biased investigation that appeared to breach virtually every procedural rule. The oppressive questioning of a person with mental health issues was never specified but a finding made nevertheless. There have over the years been many complaints of Judges, in Tribunals and elsewhere that have been found shouting at witnesses, making jokes at their expense, making racist and or sexist remarks and simply been downright rude and abrasive. These are invariably treated as raining issues and rarely as misconduct.

It appears that there is as with every other profession in the UK a disproportionate number of BME Judges and almost certainly Magistrates who face disciplinary proceedings and sanctions. This would almost certainly mirror the experience of many barristers and solicitors where disproportionality comes with the territory. Given the already alarming under representation of BME Judges and Magistrates across England and Wales the racism that follows into post is wholly unacceptable.

It is little wonder therefore if white Judges fail to treat their BME colleagues with respect and equal treatment it should come as no surprise why they should treat BME defendants and probably witnesses and victims in this same cavalier fashion. It is little wonder therefore BME communities are reluctant to experience this type of behavior from stepping up to perform an invaluable public service.

The influence of the National Conference of Black Lawyers in Washington DC introduced SBL to some of the ex-prisoner activists from the Attica State Prison uprising. The forceful presentation of Professor Angela Davis, the former Black Panther civil rights activist, now a law professor at Berkeley University California called for opposition to the prison industrial complex which relied on a disproportionate level of black detainees.

In 1988 SBL was asked to defend a number of black defendants in a public order case in Liverpool Crown Court and encountered an unprecedented level of Judicial hostility from the Recorder of Liverpool. Lady Margaret Simy, the veteran Labour councilor spoke of the racism of Merseyside Police and the collusion of the justice system in criminalising large numbers of the UKs oldest black community. The Recorder called for riot police to be stationed outside the Court doors and threatened to have anyone who spoke out after the verdict was announced would be arrested for contempt.

The Recorder of Liverpool shouted at the jury to get out when they unanimously acquitted all three defendants of violent disorder. There followed a series of cases, supported by Liverpool 8 Law Centre that led to a series of civil actions against Merseyside Police which helped curtail both the excesses of the police and the Judicial racism that appeared to support it.

In a meeting in 1988 with the Chair of the Judicial Studies Board, Peter Herbert and Christiana Hyde, (now a full time Employment Judge at Croydon Employment Tribunal) were told that Magistrates, police officers and probation officers probably did require training on race issues but not Judges! In discussions with the National Association of Probation Officers (NAPO) and the National Black caucus it was agreed that this situation was intolerable given the continued racist remarks Judges were making and the significant disproportionality in sentencing and bail decisions which had existed anecdotally for many years throughout the UK.

Comments were collated about racist remarks from Judges all over the UK and whilst many were missed and went unrecorded major ones were published. Judge Bernstein in Liverpool Crown Court, was one of several who used the expression, “Nigger in the woodpile in a case involving a defendant of African Caribbean origin. The Recorder of London, Sir James Miskin spoke of a plot by, murderous Sikhs in a criminal trial he was hearing at the Old Bailey and on another occasion spoke at a private dinner party of nig nogs. None of these comments resulted in any disciplinary action against the Judges concerned as the establishment protected the Judiciary but were forced to accept race training was necessary.

By 1991 the occurrence of a number of racial murders in South East London, the increasingly frequent and embarrassing Judicial comments of a racial nature and the NSCRO statistics about the huge percentage of African Caribbean men and women in prison led to the Home Office calling a conference to examine how to deal with race in the criminal justice system. Leading members of the Association of Black Probation Officers, the National Black Caucus, Trevor Hall (a senior black civil servant at the Home Office), and leaders of the NAPO recommended the adoption of an anti-discriminatory section of the Race Relations Act 1976. Whilst this was refused by the then Conservative Government the compromise was an undertaking to introduce a positive duty of the Home office under s 95 of the Criminal Justice Act 1991 to publish statistics on race, and gender in the Criminal Justice System on an annual basis.

Behind the scenes it would appear that Sir Henry Brookes, together with other more liberal High Court Judges, such as Mr. Justice Anthony Hooper Q.C. agreed to necessity of having race training for all full and part time Judges. Sir Henry Brookes and Trevor Hall formed the Ethnic Minorities Advisory Committee to the Judicial Studies Board tasked with developing a training model to address Judicial racism that would seek to challenge stereotypes and assessments in sentencing and bail decisions.

After a visit to see how the Canadian Judiciary dealt with issues of race and diversity a model was developed that led to the first ever Judicial training on race being announced by Lord Taylor of Gosforth. The training was introduced over a five-year period between 1991 and 1996 but specifically excluded all High Court Judges and Lord Justices of Appeal. Presumable this was on the basis that they had no need of such training being of such superior judicial intelligence. Sadly, intelligence, jurisprudential or otherwise is no protection against prejudice and the exercise of power and that has been proved time and time again.

The training was conducted over a residential Friday to Saturday afternoon with several consultants taken primarily from the Ethnic Minorities Advisory Committee to the Judicial Studies Board, Chaired by Sir Henry Brookes. Peter Herbert was added after some opposition within the Judiciary given his challenge to racism both inside and outside the Courtroom. The murder of Stephen Lawrence in February 1993 brought the issue of racial murders into sharp focus following the arguments that racially aggravated offences should be added formally to Judges sentencing powers. This faced significant resistance from those, including Sir Michael Howard, the then Home Secretary that the issue was already covered and would lead to creation of problems in Northern Ireland if one chose to include religious hate crime.

This debate went on alongside the race training that was rolled out across England and Wales with a significant impact being made on the culture of fill and part time Judges who for the first time had to face the members of the BME community to hear firsthand of their experiences of racism both on the streets, the workplace and often as UK citizens trying to enjoy family gatherings only to have relatives repeatedly rejected from visiting them in the UK. The training received a significant boost from the use of a Panorama video featuring Neville and Doreen Lawrence talking fist hand about the murder of their son, and from Asian taxi drivers in Nottingham discussing racial attacks they and colleagues regularly suffered. The session after the video was played had a visible sea change on those who participated and had regarded the training as a rather light hearted affair.

In the assessments that have never been made public approximately 10% of the full and part time Judiciary resisted the training usually in a passive manner but occasionally in a more active sense which was very disturbing. The general impression from EMAC and the JSB that the training was instrumental in changing the culture of the Judiciary. The key question would be whether it would lead to any change in sentencing and bail practice. No research was ever conducted to see whether it had made an impact at the coal face of the exercise of Judicial discretion.

The most significant study of sentencing and bail decisions was conducted by Dr Roger Hood, of the Oxford University Criminology Department who assessed Judges, both full and part time at Walsall and Wolverhampton Crown Court. The study assessed over 3,000 sentencing and bail decisions and found an unexplained disparity in sentencing and bail which found that African Caribbean defendants in particular were more likely to be given an immediate custodial sentence, with fewer previous convictions for the same offence as their white counterparts.

Some 25 years later in 2016 the statistics are worse than ever with the disparity in sentencing and bail decisions actually growing. Again there is some opposition to any need for race training, for example a magistrate in Witney, Oxfordshire willfully interrupted the sessions to such an extent he was asked to leave if he was unwilling to allow the majority to listen and take part. He subsequently left the training session. That was not an isolated incident but occurred at various times in different forms throughout the country.

The landmark Stephen Lawrence Inquiry in 1998 that produced an upsurge in the reporting of all hate crimes across the UK was sadly now matched by any significant culture shift in the Judiciary. There was throughout the country and massive push back against an organization being labeled, institutionally racist. Many senior member of the Judiciary have never engaged with the residential training that was rolled out between 1991 and 1999 and the induction training for Judges has been devolved to training consultants who are far too preoccupied with retention of contracts or members of the Judiciary whose heart is not in challenging colleagues about what they actually do and think in practice.

Consequently, race is still perceived as a problem when encountered head on by most members of the Judiciary and Magistracy. Whilst, it is acknowledged that the vast majority of Judges or Magistrates do not commence a sentencing or bail exercise thinking that African Caribbean, defendants, especially women or Muslims are somehow more of a risk than the other members of society the outcomes of decisions are undeniably exercised against African Caribbean defendants.

Even if one factors in poverty, unemployment and other variables there is still not only an over representation in the prison population but in the means by which that disproportionate population is maintained. The disparity of treatment keeps on growing. If one looks at the whole of the guidelines the situation has grown steadily worse over the years with the Magistracy and Judiciary having to take full responsibility for the unlawful disparity which all the evidence suggests is due to the passive operation of underlying and generally unconscious bias against BME defendants especially those of African and Caribbean origin. There is under representation of BME professionals in every aspect of the criminal justice system.

At present, people from black and ethnic minority groups make up over a quarter of prisoners in England and Wales, but only 14 per cent of the wider population.
Figures also show that 61 per cent of offenders from black and ethnic minority backgrounds receive jail sentences, compared to 56 per cent of white offenders.

The huge disproportionality in terms of stop and search is also ignored by the Council as is any mention of race, ethnicity or gender or what sentences have the lowest rates of recidivism. Judges and Magistrates therefore sentence without any guidelines on how to work to achieve approach sentences and bail decisions which do not discriminate on race, gender, ethnicity, or national origin. Courts are, quite correctly, given specific guidance on how to sentence young offenders and on racially aggravated offences but this colour blind approach to justice has clearly not worked. The Sentencing Council is sadly overwhelmingly, white male and middle class and has not of its own volition had the insight or guidance itself to square the circle between the appalling statistics of racial disparity shown every year in the s95 Criminal Justice Act 1991 statistics and the guidelines referred to every day by Judges and Magistrates up and down the country.

If there was a historic disparity of treatment against members of the Jewish community for instance, there would be a major public debate. The admission by the Supreme Court that Judges in murder cases had been misdirecting themselves on the law of joint enterprise for almost thirty years is a prime example of a system that is capable of making fundamental errors of jurisprudence. A system of justice that has the insight to review its own practice should be capable of change in such a key area and race and gender discrimination. The responsibility for change must rest with the Lord Chancellor and Lord Chief Justice who are and have always been aware that this disparity of treatment has been prevalent for many years.

The late Johnnie Cochran, said that, Justice is neither colour blind, nor is it equal. He may have added that the justice system in England and Wales has decided to monitor but thereafter ignore this significant problem in the 21 years since race training concluded. The maintenance of such race and gender driven sentencing undermines the credibility not only of the Sentencing Council, but also by the role of the Magistrates and Judiciary in England and Wales in this democratic Society. The rule of law must have as its most fundamental principle that every person must be treated equally under the law. If this is not attempted every other claim that is made about justice is without any merit and undermines the concept of democracy in the United Kingdom and can be attributed to the habit of the Ministry of Justice failing to place diversity at the centre of their culture and practice, effectively ignoring the lessons learnt from the Judicial Studies Board and the Stephen Lawrence Inquiry.

Some of the changes that have to be introduced are that the Sentencing Council are to address each guidance issued by them and to add a mandatory equality requirement and caution against bias and discrimination in sentencing decision. The Lord Chief Justice and Lord Chancellor are to authorise extensive research to determine the extent of treatment on grounds of race and gender. There needs to be monitoring of all sentencing and bail decisions to be undertaken at each Court centre to determine any decisions where there is more than a 5% disparity of treatment and the Court of Appeal is to adopt a presumption in favour of granting appeals against sentence and bail where it can be proven on a balance of probability that race and or gender has had a disproportionate impact on the length or type of sentence passed.

* D. Peter Herbert, O.B.E., Law graduate of University of Leicester, was a member of the Metropolitan Police and United Nations International Criminal Tribunal for Rwanda. He is a Barrister, Part-time Judge and Chair of the London-based Society of Black Lawyers.