Authors of ‘Racial Bias and the Bench’ Report make submission to Independent Review of the Criminal Courts

Monday 3 February 2025

The co-authors of the report, ‘Racial Bias and the Bench‘, which includes Keir Monteith KC of Garden Court Chambers and Professor Eithne Quinn of The University of Manchester, have made a submission to the Independent Review of the Criminal Courts, led by Former President of the Queen’s Bench Division, Sir Brian Leveson.

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The purpose of this review, led by Former President of the Queen’s Bench Division, Sir Brian Leveson, is to produce options and recommendations for a) how the criminal courts could be reformed to ensure cases are dealt with proportionately, in light of the current pressures on the Crown Court; and b) how they could operate as efficiently as possible. This is in the context of The Crown Court caseload rising substantially over recent years for complex reasons, including the pandemic and an increase in the number of cases coming before the courts. See news coverage: The Independent

In Autumn 2022, the report ‘Racial Bias and the Bench‘ (“RBB”) was published, co-authored by experts from The University of Manchester and Keir Monteith KC in response to the Judicial Diversity and Inclusion Strategy (2020-2025). Professor Eithne Quinn of The University of Manchester is the report’s academic lead author. The report, which draws on a survey of 373 legal professionals, concluded there was evidence of institutional racism in the justice system presided over by judges, with 95% of the survey respondents stating that racial bias plays some role in the processes or outcomes of the justice system. Read the report here.

The submission states:

“The right to trial by jury should not be eroded in the circumstances of the evidence in RBB of institutional racism in the justice system. While the RBB survey found that some judges act in racially literate ways; many do not. To put more decision-making responsibility on our judicial office holder’s risks exacerbating rather than curbing unfair charging and convictions that feed into court backlogs (and, further down the pipeline, bloated numbers in our prisons). Taking ambitious measures to eradicate this racial bias will enhance fairness and help address the backlog – a win-win.

Joint enterprise (JE) cases take up a disproportionate amount of police, court time and resources, they are extremely expensive and freighted with an ‘ethnic penalty’.

We, along with others, have found that racial bias, left to fester, poses particular risks in amplifying charging and conviction under secondary liability law. Submissions for our RBB report (p. 18) found that JE and conspiracy prosecutions of YBM were freighted with an ‘ethnic penalty’.

This penalty is illustrated in The University of Manchester report Compound Injustice (Quinn et al) that homes in on the issue of the evidential use of black youth expressive culture in JE cases — finding that JE cases involving rap evidence (which many, including some judges, believe to be unreliable and inflammatory) had a higher average number of defendants per case (4.7 defendants) than in all JE cases (3.1 defendants).

Any review of the criminal courts should include evidence on the issue of racial bias and the adoption of measures to reduce the same.

In particular, we submit that racial bias directed at young Black defendants and a lack of racial literacy about anti-Black racism among courtroom decisionmakers are giving rise to unfair overrepresentation of black people and young black men (YBM) specifically in the courts.

Suggested solutions include:

  • Reducing the backlog by initiating a comprehensive review of the outstanding cases before the courts.
  • The review should consider the overuse of JE and the disproportionate number of YBM who may be wrongly in the prosecution pipeline.
  • Adopting the ten recommendations in RBB.”

The review will report on options for long-term reform by late Spring 2025, following up with findings on court efficiency by Autumn 2025.

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