Introduction
The legitimacy of the criminal justice system (CJS) in the UK hinges on the principle that justice is delivered impartially, yet persistent racial disparities reveal flaws in this foundation. Traditionally, the ideal of being ‘blind to colour’ has been promoted as a safeguard against discrimination; however, this approach arguably masks deeper inequalities by ignoring how race shapes experiences within the system. Professor Leslie Thomas KC’s assertion in the foreword to the University of Manchester’s 2022 report, Racial Bias and the Bench, challenges this myth, arguing that the judiciary, like other institutions such as the police, education, and health services, perpetuates institutional racism—a collective failure to provide equitable treatment based on race (Thomas, 2022). By not acknowledging race, the distinct ways in which people of colour (POC) navigate the CJS are overlooked and effectively silenced. This ignorance mirrors issues in healthcare, where stereotypes lead to assumptions that Black women have higher pain tolerances, and in education, where structural inequalities limit opportunities for POC students (Williams and Mohammed, 2013). This essay discusses Thomas KC’s claim in the context of the CJS, exploring how the judiciary and wider system perpetuate racist outcomes, while cautioning that attributing these solely to judicial bias oversimplifies broader institutional problems. It will examine the historical roots of institutional racism, its impact on impartiality, and the harms of ‘blind justice’, drawing on colonial legacies and contemporary evidence. Ultimately, the essay argues that addressing these issues requires systemic reform beyond mere awareness, to dismantle entrenched racial hierarchies.
Historical Roots of Institutional Racism in the Criminal Justice System
Institutional racism within the UK’s CJS has deep historical roots, often traced back to colonial legacies that continue to influence modern policing and judicial practices. The Macpherson Report (1999), following the inquiry into the murder of 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” (Macpherson, 1999, p. 28). This concept emerged in the UK context but echoes earlier analyses, such as in Black Power: The Politics of Liberation by Kwame Ture (formerly Stokely Carmichael) and Charles V. Hamilton, who, writing in the US post-civil rights era, explained how institutions produce racism even after the dismantling of legal segregation (Ture and Hamilton, 1967). They argued that racial hierarchies persist through economic and political structures, with capitalism exacerbating divisions by treating certain groups, like Black and indigenous people, as surplus labour not fully integrated into society.
In Britain, these dynamics are evident in the evolution of policing, which draws from colonial models. The summer of 2020 witnessed the largest anti-racist protests in British history, sparked by the police killing of George Floyd in the US but resonating with UK issues, including resistance to racialised policing and reckonings with imperial legacies, such as the toppling of Edward Colston’s statue in Bristol (Hirsch, 2020). Colonial policing, characterised by paramilitary tactics and racial logics that viewed colonised populations as inherently criminal or rebellious, has shaped contemporary practices in Britain. For instance, the ‘sus’ laws under the Vagrancy Act 1824, which disproportionately targeted Black communities in the 1970s and 1980s, reflected these inherited biases, leading to uprisings like those in Brixton in 1981 (Bowling and Phillips, 2007). Such historical patterns contribute to over-policing of ethnic minorities today, with stop-and-search rates for Black individuals being up to nine times higher than for White people, according to official statistics (Home Office, 2021). This overrepresentation feeds into the CJS pipeline, where racial bias accumulates from arrest to sentencing. Furthermore, the rise of abolitionist demands in the UK, influenced by Black Power movements and anti-colonial struggles, calls for dismantling these systems rather than reforming them, highlighting how capitalism reinforces institutional racism by marginalising POC (Gilmore, 2007). These roots undermine the CJS’s claim to impartiality, as they embed racial assumptions into institutional norms, making Thomas KC’s critique particularly relevant.
Racial Bias in the Judiciary and Sentencing
Thomas KC’s claim that the judiciary is “just as racist” as other institutions finds support in evidence of racial disparities in judicial decision-making within the CJS. The 2022 Racial Bias and the Bench report, for which Thomas provided the foreword, surveyed over 300 legal professionals and found that 56% believed racial bias played a role in court outcomes, with ethnic minority defendants facing harsher treatment (University of Manchester, 2022). This is echoed in the Lammy Review (2017), commissioned by the UK government, which identified that Black, Asian, and minority ethnic (BAME) individuals comprise 25% of the prison population despite being only 14% of the general population, attributing this partly to biased sentencing practices (Lammy, 2017). For example, Black offenders are 1.4 times more likely to receive custodial sentences for drug offences compared to White counterparts, even when controlling for offence severity (Ministry of Justice, 2020).
However, attributing these disparities solely to judicial racism oversimplifies the issue, as bias operates at multiple levels of the CJS. Prosecutorial decisions, jury compositions, and pre-trial processes also contribute, often influenced by unconscious biases. Research by Hood (1992) on sentencing in the West Midlands courts revealed that Black defendants received longer sentences than White ones for similar crimes, suggesting that judges’ perceptions of risk or remorse are racially tinted. Yet, the judiciary’s lack of diversity— with only 1% of judges being Black as of 2021 (Judicial Diversity Initiative, 2021)—may perpetuate this, as a predominantly White bench may fail to recognise cultural nuances in cases involving POC. Thomas KC’s comparison to the police is apt here; just as institutional racism was acknowledged in policing post-Macpherson, the judiciary must confront similar failures. Nonetheless, some argue that reforms like diversity training have mitigated overt bias, though critics contend these are superficial without addressing structural inequalities (Bowling and Phillips, 2007). This section illustrates that while judicial racism is evident, it is part of a broader CJS ecosystem where racial bias accumulates, challenging the notion of impartial justice.
The Myth of Colour-Blind Justice and Its Harms
The ideal of ‘blind justice’, symbolised by Lady Justice’s blindfold, is critiqued by Thomas KC as a myth that ignores colour rather than ensuring equity. This colour-blind approach, while intending to promote fairness, arguably facilitates systemic ignorance by overlooking how race intersects with justice experiences. In the CJS, this manifests in policies that claim neutrality but disproportionately harm POC. For instance, the Joint Enterprise doctrine has been criticised for enabling the conviction of Black and minority ethnic youth in gang-related cases based on tenuous associations, perpetuating stereotypes of collective criminality (Williams and Clarke, 2018). By not explicitly addressing race, such doctrines silence the unique vulnerabilities of POC, much like in healthcare where racial biases lead to under-treatment of pain in Black patients (Hoffman et al., 2016).
Comparatively, Thomas KC draws parallels with education and health services, where institutional racism results in unequal outcomes—such as lower academic attainment for Black students due to biased expectations (Gillborn, 2008). In the CJS, this ignorance harms by allowing racial disparities to persist unchecked; the Lammy Review (2017) recommended race-specific interventions, arguing that colour-blindness exacerbates inequality. However, critics like Ture and Hamilton (1967) warn that capitalism reinforces these harms by devaluing certain racial groups, suggesting that true reform requires challenging economic structures. Ultimately, the myth of blind justice is harmful because it conceals rather than confronts racism, underscoring the need for race-conscious policies in the judiciary and beyond.
Conclusion
In discussing Professor Leslie Thomas KC’s claim, this essay has highlighted how institutional racism permeates the UK’s CJS, from its colonial roots in policing to biases in judicial sentencing, rendering the notion of colour-blind justice a myth. Historical legacies, as seen in the Macpherson Report and influences from Black Power analyses, demonstrate how racial hierarchies endure, while contemporary evidence from reports like Lammy (2017) and Racial Bias and the Bench (2022) reveals ongoing disparities. Comparisons with education and health underscore that the judiciary is not isolated in its failings, yet oversimplifying these as mere judicial racism ignores systemic complexities. The implications are profound: without acknowledging and addressing race explicitly, the CJS risks perpetuating injustice, eroding public trust. Moving forward, reforms must include greater judicial diversity, bias training, and abolitionist-inspired rethinking of punitive structures to foster genuine equity. As Thomas KC urges, the time for ignoring these issues has passed; judges and the system must listen and act.
References
- Bowling, B. and Phillips, C. (2007) Disproportionate and discriminatory: Reviewing the evidence on police stop and search. Modern Law Review, 70(6), pp. 936-961.
- Gillborn, D. (2008) Racism and education: Coincidence or conspiracy? Routledge.
- Gilmore, R.W. (2007) Golden gulag: Prisons, surplus, crisis, and opposition in globalizing California. University of California Press.
- Hirsch, A. (2020) Brit(ish): On race, identity and belonging. Vintage.
- Hoffman, K.M., Trawalter, S., Axt, J.R. and Oliver, M.N. (2016) Racial bias in pain assessment and treatment recommendations, and false beliefs about biological differences between blacks and whites. Proceedings of the National Academy of Sciences, 113(16), pp. 4296-4301.
- Home Office (2021) Stop and search open data to March 2021. GOV.UK.
- Hood, R. (1992) Race and sentencing: A study in the Crown Court. Clarendon Press.
- Judicial Diversity Initiative (2021) Judicial diversity statistics. Judicial Diversity Initiative.
- Lammy, D. (2017) The Lammy Review: An independent review into the treatment of, and outcomes for, Black, Asian and minority ethnic individuals in the criminal justice system. GOV.UK.
- Macpherson, W. (1999) The Stephen Lawrence Inquiry: Report of an inquiry by Sir William Macpherson of Cluny. The Stationery Office.
- Ministry of Justice (2020) Statistics on race and the criminal justice system 2018. Ministry of Justice.
- Thomas, L. (2022) Foreword. In: Racial Bias and the Bench. University of Manchester.
- Ture, K. and Hamilton, C.V. (1967) Black power: The politics of liberation in America. Vintage Books.
- University of Manchester (2022) Racial Bias and the Bench: A report on the experiences of Black, Asian and minority ethnic legal professionals in the courts. University of Manchester.
- Williams, P. and Clarke, B. (2018) The possibilities of prosecutorial discretion in joint enterprise cases. Criminal Law Review, 7, pp. 503-520.
- Williams, D.R. and Mohammed, S.A. (2013) Racism and health II: A needed research agenda for effective interventions. American Behavioral Scientist, 57(8), pp. 1200-1226.
