Introduction
The quote from Professor Leslie Thomas KC, in the foreword to the 2022 University of Manchester report on Racial Bias and the Bench, highlights a pressing issue in the UK’s Criminal Justice System (CJS): the persistence of racial bias within the judiciary, comparable to racism in other institutions like policing, education, and healthcare (Thomas, 2022). This essay discusses the validity of Thomas’s statement, arguing that it is indeed true, while disputing the traditional notion of ‘blind justice’—often symbolised by Lady Justice’s blindfold—as a myth that ignores systemic racism. From the perspective of an LLB Law student, I will explore how racism is rooted in historical and capitalist structures, examine evidence of bias in the modern CJS, critique the concept of colour-blind justice, and propose reforms. The discussion draws on key sources such as the Lammy Review (2017) and theoretical works on institutional racism, aiming to show that addressing these issues is essential for a fairer system. By debunking blind justice and suggesting solutions, this essay underscores the need for urgent change in the CJS.
Roots of Racism in Legal Systems: The Influence of Capitalist Racism
Racism within the UK’s legal systems, including the CJS, has deep historical roots intertwined with colonialism and capitalism, which have shaped racial hierarchies that persist today. As an LLB student studying legal history, it becomes evident that these roots are not merely remnants of the past but active forces in contemporary institutions. The notes from the abstract on colonial policing illustrate how the summer of 2020’s anti-racist protests, triggered by events like the killing of George Floyd, connected modern policing to Britain’s imperial legacies, such as the toppling of Edward Colston’s statue (Gilroy, 2021). This connection reveals how colonial power influenced 21st-century policing through racial logics and paramilitary tactics, leading to racialised practices in Britain.
A key framework for understanding this is capitalist racism, as discussed in works like Black Power: The Politics of Liberation by Kwame Ture and Charles V. Hamilton (1967). Writing in the US context but with relevance to the UK due to shared colonial histories, Ture and Hamilton argue that even after the dismantling of legalised racism—such as through civil rights movements—institutional racism endures through economic and political structures. In a capitalist system, racism serves to differentiate and exploit workers based on race, maximising profit. For instance, indigenous peoples were often deemed ‘surplus’ and subjected to extermination or marginalisation, African descendants faced chattel slavery, indentured Asian labourers endured debt bondage, and white workers entered standard wage labour (Ture and Hamilton, 1967). This differentiation, they explain, is core to capitalism as it allows for varying degrees of exploitation; race becomes the organising principle to divide labour and pit groups against each other, fostering social divides that enable capitalist thriving.
In the UK context, this capitalist racism is evident in how colonial legacies informed the development of legal institutions. The British Empire’s policing models, exported to colonies, emphasised control over racialised populations, tactics that returned to influence domestic policing and the CJS (Bowling and Phillips, 2007). For example, the racial hierarchies from slavery and colonialism embedded into institutions mean that, post-civil rights eras, economic powers continue to express racism subtly. Despite the end of overt legal segregation, institutions like the judiciary retain these hierarchies, rooted in settler colonialism and exploitation. As Gilroy (2021) notes, this has led to abolitionist demands in Britain, drawing not just from US movements but from historical anti-colonial and Black Power struggles in the UK and its former colonies. Therefore, the roots of racism in the CJS are tied to capitalism’s racial exploitation, debunking the myth of blind justice by showing how legal systems were designed with racial biases in mind. This historical perspective supports Thomas’s claim that the judiciary is institutionally racist, as these capitalist structures facilitate ignorance of colour in favour of maintaining power imbalances.
Racial Bias in the Modern Criminal Justice System: Insights from the Lammy Review
Building on these historical roots, racial bias remains prevalent in the modern UK CJS, as evidenced by official reports and studies. The Lammy Review (2017), commissioned by the UK government, provides a comprehensive examination of the treatment of Black, Asian, and Minority Ethnic (BAME) individuals in the CJS, revealing disparities that align with Thomas’s assertion of institutional racism comparable to policing and other sectors.
The review found that BAME groups face disproportionate outcomes at every stage of the CJS, from arrests to sentencing. For instance, Black people are overrepresented in stop-and-search practices, with rates up to nine times higher than for white individuals, echoing colonial policing tactics (Lammy, 2017). In the judiciary, the report highlights biases in sentencing, where BAME defendants are more likely to receive custodial sentences for similar offences compared to white counterparts. Specifically, for drug offences, Black offenders were 240% more likely to be imprisoned than white offenders. This is not just a policing issue but extends to judicial decision-making, where unconscious biases influence outcomes. The review attributes this to a lack of diversity in the judiciary—only 7% of judges were from BAME backgrounds at the time—leading to a system that does not reflect the communities it serves (Lammy, 2017).
Furthermore, the University of Manchester’s 2022 report, referenced in Thomas’s quote, builds on this by surveying over 300 legal professionals and finding widespread perceptions of racial bias on the bench. It notes that judges often dismiss racism claims, perpetuating a ‘myth’ of colour-blindness (University of Manchester, 2022). This modern bias debunks the true definition of blind justice, which ideally means impartiality, but in practice, it ignores racial contexts, allowing disparities to persist. As an LLB student, analysing these reports shows that while the CJS claims neutrality, evidence like the Lammy findings indicates systemic racism, supporting Thomas’s call for judges to ‘sit up and listen’. However, the review also notes some positive aspects, such as youth justice improvements, suggesting that change is possible but requires addressing these biases head-on.
The Harms of Colour-Blind Justice: A Critique of the Concept
While Thomas’s statement effectively challenges the myth of blind justice, it warrants critique for its use of the term ‘blind to colour’, which can inadvertently facilitate ignorance rather than combat it. In legal theory, ‘colour-blind justice’ refers to the ideal that justice should not consider race, as symbolised by Lady Justice’s blindfold, ensuring impartiality (Gottschalk, 2015). However, this concept is problematic in practice, as it ignores the structural inequalities that race creates, thereby perpetuating harm in the CJS.
Critiquing Thomas, his phrasing—’Lady Justice is blind to colour’—might be misinterpreted as endorsing colour-blindness, whereas he intends to debunk it as a myth. Indeed, colour-blind approaches facilitate ignorance by pretending race does not matter, which allows institutional racism to thrive unchecked. For example, in sentencing, a colour-blind judge might overlook how racial biases in policing led to a BAME defendant’s arrest, resulting in harsher penalties (Bowling and Phillips, 2007). This ignorance exacerbates harms, such as higher incarceration rates for BAME groups, contributing to cycles of poverty and marginalisation rooted in capitalist exploitation, as discussed earlier (Ture and Hamilton, 1967).
From a critical legal studies perspective, colour-blind justice masks power dynamics, debunking its definition as true impartiality. Instead, it impacts negatively by failing to address how race intersects with class and capitalism, dividing communities and enabling exploitation. Thomas’s overall point is valid—the judiciary is racist like other institutions—but refining the critique to reject colour-blindness entirely would strengthen the argument, highlighting how it harms by ignoring racial realities in the CJS.
Solutions and Reforms for the Criminal Justice System
To address these issues, reforms are essential to retaliate against racism in the CJS, moving beyond the myth of blind justice towards equity-focused approaches. The Lammy Review (2017) proposes 35 recommendations, including increasing judicial diversity through targeted recruitment and training on unconscious bias. For instance, mandatory anti-racism training for judges could help them recognise how capitalist racism influences decisions, drawing on historical insights from Ture and Hamilton (1967).
Additionally, abolishing colour-blind policies in favour of race-conscious ones, such as equity audits in sentencing, could mitigate harms. Community involvement, like BAME representation on oversight boards, would ensure accountability, echoing abolitionist demands from 2020 protests (Gilroy, 2021). Legislative changes, such as reforming stop-and-search laws to reduce disparities, are also key. Ultimately, these solutions require political will to overhaul the system, ensuring it listens to voices like Thomas’s for a truly just CJS.
Conclusion
In summary, Thomas’s statement is true: the judiciary is institutionally racist, mirroring biases in policing and other sectors, rooted in capitalist racism and colonial legacies. By debunking blind justice as a myth that facilitates ignorance, and examining modern evidence from the Lammy Review, this essay highlights the harms and proposes reforms like diversity training and equity policies. As an LLB student, these insights imply that without change, the CJS will perpetuate inequality; however, implementing solutions could foster a fairer system, addressing the urgent need for judges to ‘sit up and listen’. The implications extend to broader societal justice, urging ongoing scrutiny and action.
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.
- Gilroy, P. (2021) Postcolonial Melancholia. Columbia University Press.
- Gottschalk, M. (2015) Caught: The Prison State and the Lockdown of American Politics. Princeton University Press.
- 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. UK Government.
- Thomas, L. (2022) ‘Foreword’, in Racial Bias and the Bench: A report on the experiences of Black, Asian and minority ethnic legal professionals in the UK. University of Manchester. Available at: https://documents.manchester.ac.uk/display.aspx?DocID=65321.
- Ture, K. and Hamilton, C.V. (1967) Black Power: The Politics of Liberation. 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 UK. University of Manchester.
