The judge and the defendant: demographics and diversity in the criminal justice system
Two or three years ago, I was contacted by a black American judge who was on a trip to this country to meet his fellow black judges in England. He wanted to learn from their experiences and share his and those of his colleagues. He had been using the internet in order to set up meetings before his arrival. He first looked for an Association of Black or Minority Ethnic Judges which, given the different associations which exist in the US, seemed to him to be the obvious starting point. He drew a blank. He then tried to discover names of individual black judges whom he could contact. He almost drew a blank. The only name he found was mine. When he contacted me, I then put him in touch with representatives from the Bar, the Law Society and some other judges. Once in this country, he acquainted himself with the judicial diversity statistics and crime statistics. He was shocked. That is when he started to advocate the virtues of the American system, in which pressure on the politicians can play a strong part in ensuring a more diverse judiciary. Before I summarise what he found, let me tell you what this talk is going to be about.
The talk, despite its lengthy title, is in reality about diversity in the judiciary. However the title is relevant and its purpose serious, as it is intended to highlight the stark reality, because, as the American judge found - proportionally, BME members of the population are seriously over –represented in the criminal justice system, whilst BME judges are under-represented in the criminal justice system and the justice system overall. In the criminal justice system, the overwhelming majority of cases are tried by magistrates and whilst far ahead of the rest of the judiciary in terms of diversity, gender in particular, BME representation is still not optimal. We pride ourselves on having one of the finest judiciaries in the world, but from the various debates on judicial diversity, it is clear that no right-thinking person would say that it is desirable for the composition of the judiciary to stay the same.
The talk will take the following form. In the first part of the talk, I am going to look at the general population statistics, recent estimates and predictions about our demographics. Secondly, I am going to look at figures relating to the criminal justice system. Thirdly, I will deal with the figures in the two main legal professions from whence the majority of judges emanate, and then set out some recent statistics regarding the judiciary and judicial appointments. The purpose of this is to see how reflective our judiciary is of a) our society and b) the population of those who appear in the criminal justice system. The second part of the talk will also focus on the arguments for a more diverse judiciary, although I hope that the statistics themselves will have made the argument. Part three will focus on what little research there is on people’s perceptions of the criminal justice system, BME respondents in particular, in order to ascertain whether the research backs up the arguments for a more diverse judiciary.
At this stage you may be wondering as the lecture series is entitled “New developments in the criminal justice system” what is new? What I hope to do in the final part of the talk, is briefly to look at developments and achievements so far as diversity is concerned in some of the Criminal Justice agencies, one in particular, and to ask what lessons can be learnt, to ensure that the judiciary and those who work in our justice system (in particular the criminal justice system) broadly reflect the society it serves.
I am conscious that people’s eyes glaze over when you mention the word statistics. Not surprisingly, it is difficult to take figures in, especially when you can’t see them written down. Mastering the art of PowerPoint technology is still on my “to do” list, and although I am going to quote from a range of different statistics, I am going to keep this aspect as short as possible, whilst hopefully giving you a sense of the effect of the figures.
Let us start with demographics – the population statistics. Non-white British inhabitants 4.6m (an equal division of men and women) formed 7.9% of the population nationally in the 2001 census. This represented a growth of 53% between 1991 and 2001 from 3m. The National Statistics Office 2006 estimate of the population in mid- 2004, was that 14.7% of the population was “non-white British”.
Research commissioned by the Cadbury Trust carried out by Danny Dorling, shows that at least half a dozen British towns and cities will have no single ethnic group in a majority within the next 30 years. Leicester will become the first super-diverse city in 2020, then Birmingham in 2024, followed by Slough and Luton.
How do members of the BME population fare? Let us start with schoolchildren. In 2003/2004 pupils from black Caribbean, other black and mixed white and black Caribbean groups were among the most likely to be permanently excluded from schools in England.
How do they fare in employment? 2007 figures show that employment rates for those from BME backgrounds were generally lower than those for the white population. Women are more likely to be unemployed than men. The employment rate for the population overall is 74% compared with BME figure of 60.1%. The rate for BME women is 52.1%.
What are the statistics in relation to the criminal justice system? In summary, the 2006 statistics show that relative to the general population, members of the black community are seven times more likely than their white counterparts to be stopped and searched. They are three and a half times more likely to be arrested and six times more likely to be sent to prison.
Of those sent to prison, in June 2006, members of BME groups accounted for 26% of the male prison population and 28% of the female population (including foreign nationals). For British nationals, the proportion of black prisoners relative to the population was 7.3 per 1,000 of the population compared to 1.3 per 1,000 for white persons.
The legal profession
I shall concentrate on the two main professions, although, I acknowledge that the net has widened so far as eligibility for the bench is concerned. What is the complexion of these main professions?
The 2006 figures show that women form 30% of the self-employed Bar and 46% of the employed Bar. BME barristers form 10.4% of the self- employed Bar and 15.1% of the employed Bar. Women account for less than 10% of Queens Counsel. As far as can be ascertained, there are 5 BME women and 41 men QCs– 46 out of a total of 1278. The figures for 2007 are roughly similar so far as women are concerned, but figures regarding ethnicity have significant numbers of barristers where no ethnic data is held so it is difficult to get an accurate picture.
Is the solicitor’s profession more representative? As of 31st July 2006, women accounted for 43% of solicitors on the roll. (57,249) Women accounted for 42.5% (44,393) of those holding practising certificates.
(43.4% - 2007) Women formed 62.2% (6,970) of first year law students.
In the summer of 2006, 55.4% of law graduates obtained first or upper second degrees, and of those, 57.6% were women. Women accounted for 61.8% of trainees. (61.5% in 2007) As of 31st July 2007, of the 11,351 students enrolled with the Law Society, 62% were women. The 2006 figures show that only 23.2% of partners were women. (21.8% - 2007) However, the figure of women partners, it has to be noted, is more than double that of female QCs. BME solicitors accounted for 9.7% on the roll (10.1% - 2007), 9.1% of those with practising certificates (9.5% - 2007); a staggering 32.4% of first year law students and 17.5% of first year trainees (18.4% - 2007). 1505 out of 24,681 partners are from BME backgrounds – around 6%. A Black Solicitors Network survey in 2006 found that only 3% of partners in the UK top 100 law firms were of BME background and a third of those firms surveyed had no BME partners at all. So the figures within the profession at the lowest end are healthy, but fall off dramatically at the top of the profession. Is this reflected in the judicial statistics?
The percentage of women and those from BME backgrounds in the judiciary was as follows as at 1st April 2007. One woman in the House of Lords, ( 8.3%); no BME. 3 women in the Court of Appeal, (8.11%); No BME. 10 women in the High court, (9.26%); 1 BME (0.93%). 73 female Circuit judges, (11.42%); 9 BME 1.41%. 179 female Recorders, (14.9%); 53 BME (4.5%). 450 female District judges, (22.44%); BME 14, (3.11%). 219 female Deputy district judges, (28.08%); BME 30 (3.85%); 33 female District judges (MC), (23.74%); BME 7, 5.04%. 42 female Deputy district judges (MC), (24.85%); BME 9 (5.33%).
Let us look at the recent JAC competitions at high court and circuit judge level to see if there has been any change. In the high court competition, of the eligible applicants 14.58% (21) were women and 2.08% (3) were BME. Of those short-listed, 22.81(13) were women and 1.75% (1) BME. Of those on the Section 94 list, the list from which appointments were made – 14.29% (3/21) were women and no-one from BME background. Since my appointment in October 2004, there have been 37 new high court judges appointed, of which, three have been women and none from a BME background.
In the circuit judge competition, of the eligible applicants, 24% (73) were women, 7% (21) BME. Of those short listed, 25% (38) were women, 5% (8) BME. Of those on the section 94 list, 31% (32) were women, 3% (3) BME. A welcome increase in relation to the percentage of women applying and those on the section 94 list, but a disappointing decrease in the percentage of those from BME backgrounds applying and those on the section 94 list.
The arguments for diversity
What is diversity?
When we talk about diversity – what do we mean? We tend to think about gender and race. One only has to look at anti-discrimination legislation to see that there are other factors at play - religion, sexual orientation, disability, age etc. Caution is always urged in relation to the issue of what constitutes diversity. Some argue that you should throw into the mix both class and education. Some ask whether we need to extend it to such attributes as attitudes, values and cultures.
Why do we need diversity?
It is said, that we have a judiciary which is highly respected both at home and abroad? If so, why do we need a more diverse judiciary? Can the notion of a more representative judiciary be reconciled with the principle of judicial impartiality? How do we measure what having a more diverse judiciary means? The general consensus of commentators is that it is desirable to have a judiciary which is broadly reflective of society. What then is the justification for a more diverse (reflective of society) judiciary? Writing on the topic yields the following main justifications:
Enhancing democratic legitimacy.
By being reflective of society, the courts are given legitimacy. Members of society are more likely to respect and trust courts whose judges include people like themselves. It increases accountability and thus public confidence.
The equity principle.
This says that it is wrong in a democratic society, in which we are all equal citizens, for authority to be wielded by such an unrepresentative section of the population.
The impact theory – that it will improve the decision making of the judiciary. There is a lack of consensus on this. Some argue that judicial impartiality means that personal characteristics have no part to play. On the other hand, there are those who are firmly of the view that women and men see the world differently and that women, by bringing a feminine perspective to bear, can play a major role in improving the quality of the system and judicial decision- making. Chief Justice Beverly McLachlin of Canada, Lady Cosgrove the first female high court judge in Scotland and Chief Justice of New Zealand, Sian Elias, are in this camp.
When considering the appointment of judges in the European Union, Kenney takes a different approach:
“…..It is better to argue for the symbolic importance (in the strong sense) of women on the bench, than to fall into the trap of talking about women’s essential difference from men and the distinctive “voice”(singular) they add to the bench”
Other academics argue, that judicial diversity enriches the decision- making process, because as judges interact with one another, they affect each other’s views of particular cases or of the law. Deliberation is bound to sharpen legal analysis, especially in the appellate courts. There have been studies in the United States, and to a very limited degree, in this country, on the effect of gender on decision- making. The results are largely inconclusive. Where there is some support for the effect of diversity, it is in the area where there is collective decision-making such as the appellate courts.
Merit vs. diversity
In this country, statute lays down that merit is the sole test for judicial appointment. How is merit defined? Is diversity an “add- on” or is it part of merit? The chairman of the JAC refers to “Diversity in the field - merit in the selection”….
However, the issue of whether there is a tension between merit and diversity deserves some close attention. How should merit be defined? Is it a moving target, depending on the demands of the job in question? So far as judicial appointments are concerned, how far should diversity be part of merit? The Bar Council has suggested that diversity needs to be fed into the test of merit, so that an understanding of and ability to deal appropriately with diversity issues will count in a candidate’s favour when assessing the application. The relevant experience of, or derived from, backgrounds, perspectives, cultures and other diverse circumstances, should, it is said, be part of the strengths that a candidate offers and therefore properly considered in the assessment of merit.
Research into perceptions in the criminal justice system
I turn now to look at some of the research which has been conducted on perceptions of the justice system, with particular emphasis on BME respondents, to see if they support any of the arguments for diversity. There is a paucity of research in relation to the narrow issue of perceptions of the make up of the judiciary. Most of the comments about judges and lawyers in the system have been in the context of wider research. The 2004/2005 Section 95 report – “Race and the Criminal Justice System” found that relative to white people, BME groups reported higher levels of perceived discrimination within the Criminal Justice system. 31% of those BME persons surveyed felt that they would be treated worse than people of other races, by one or more of the five agencies in the Criminal Justice System. This represents little change to the findings in 2001-3.
In the research entitled Policing and public perceptions of the Criminal Justice System, findings from the 2004-2005 British Crime Survey in which 2001 people were surveyed, revealed that people from ethnic minorities expressed a higher level of confidence than white people on most of the criminal justice measures and ratings of agencies. However, they were less likely to be confident that a) the system respected the rights of the black accused and treated them fairly and b) that BME witnesses were treated as well as white people. Only 26% thought that judges were doing a good or excellent job.
Phase one of a DCA research programme back in 2002-3 was entitled “Race and the Courts”. This included a number of studies which dealt with users’ experiences of the courts in relation to criminal, housing and care proceedings. With regard to criminal proceedings, the majority of defendants in the Crown courts did not believe that they had received unfair treatment due to their race. However, the minority ethnic defendants felt that having more minority ethnic jurors would increase their confidence in the courts. Even the judges surveyed agreed that more should be done to avoid the impression that the courts are “white dominated” institutions.
The “Courts and Diversity research programme” included research entitled “Tribunals for diverse users”. This found evidence that those minority groups most likely to perceive unfairness at hearings, were less likely to do so, where the tribunal itself was ethnically diverse. There was also separate research on minority ethnic magistrates’ experiences of the role and the court environment. That research found that there was strong support for the proposition that more magistrates and court staff from the local minority ethnic populations should be recruited to increase confidence in the courts. There was also a feeling amongst the magistrates that they did not progress as quickly as their white counterparts. The three studies did show to a certain degree therefore, that the lack of diversity in those presiding over judicial proceedings had an effect on the confidence of minority ethnic people in the fairness of the proceedings.
A recent publication entitled “Perceptions of racial discrimination by public services” a Communities and Government publication (2007), when looking at perceptions of the courts, found that respondents expected the courts to be fair, because of the independence of the judiciary from the legislative system, the public nature and openness of proceedings and the confidence in the fairness of the law itself. However, there were some with a basic distrust of the courts, based on perceptions of harsher sentences for BME defendants, and a feeling that the law was interpreted by “conservative old male judges who are disconnected from reality”. To put it in the words of the researchers:- “ the homogenous socio-demographic profile of judges was one of the main reasons why those from BME backgrounds expected to be discriminated against in our courts” In its conclusions, the authors recommended that the drive to increase the diversity of the judges be pursued, so that they better reflect the communities they serve. It also recommended that the effectiveness of current diversity awareness training amongst judges and magistrates should be assessed for its impact on service delivery and outcomes in relation to people from BME backgrounds.
The most recent research into perceptions published in March of this year in the Ministry of Justice research series, is entitled “Just satisfaction. What drives public and participant satisfaction in the courts and tribunals.” The report is a review of certain studies done from 2000 onwards, including some outside our jurisdiction. The general conclusion was that the data on the overall satisfaction with courts and tribunals is contradictory. General levels of public esteem for the courts and judges appear low. There was a paucity of research on diversity, even in this wide-ranging review. The studies referred to turned out to be the ones I have just referred to with one additional reference.
Standing back and looking at this very limited research – the most that one can say, is that there is some, but limited evidence, to support the theory that the lack of diversity in the judiciary does affect public confidence in the system.
Developments in diversity in the criminal justice system
Many more Criminal Justice agencies are employing proportionally more people from BME communities. For example, the Prison Service has met its targets for minority ethnic representation (4.4%), with the proportion of BME officers standing at 4.6% in 2005/6. The Serious Fraud Office and Youth Offending Teams had the highest BME representation at 22% and 17% respectively. The Office for Criminal Justice Reform in the Ministry of Justice has been working to ensure that agencies collect the data they need to enable more effective ethnic monitoring.
What of the police? As of 31.3.2007, there were 141,892 full time equivalent police officers in the 43 police forces of England and Wales. Women form about 23% of the force, with BME forming 3.9%. Like the legal professions, there is a serious under- representation at senior level, so far as BME officers are concerned. They account for 2.6% of officers at Chief Inspector level and above and 4.2% of constables. Women fare better and account for 15% of officers of Chief Inspector and above, (up from 10%) and 26% at constable rank.
I want, for a moment, to focus on the progress made in the Crown Prosecution Service with regard to diversity. In July 2001 David Calvert Smith QC, the then DPP, accepted the independent report by Sylvia Denman which found that the CPS was institutionally racist. He said this: “Without intending to be, our behaviour can, does and has discriminated. Therefore I unreservedly accept the finding that as an organisation the CPS has been, within the Lawrence report definition, institutionally racist.” He went on to say that he wanted the CPS to be a “ paragon within British society in the way we deliver our service and the way our employees are treated” His successor, Ken Macdonald when launching the 2003-4 “Annual Equalities in Employment” report echoed those sentiments.
The Annual Equalities in Employment report 2005-6, shows that there was a steady increase in the overall number of black and minority ethnic people employed by the CPS since 2005, making up then 15.2% of the overall workforce. Overall, the CPS had exceeded the 2005 Labour Force Survey (LFS) benchmark for representation of women and black and minority ethnic people. The growth, it appears, had been assisted by the setting of targets, which, it was said, are a key strand in realising any organisation’s equality and diversity agenda. They serve to ensure the organisation implements a range of initiatives to develop a workforce which is representative of the communities it serves and where all employees can aspire to reach their full potential. In setting their targets for 2008, the CPS has taken into account the proportions of each particular demographic group in the wider labour market, in the wider Civil Service and in the CPS.
The HM Crown Inspectorate report (2006) entitled – “Equalities driving justice” - a review of equality and diversity in employment practice in the CPS, was positive in its conclusions. It found that commitment at the top had been backed up by changes to governance structures, the development of a strong Equality and Diversity Unit and a good level of engagement with both internal and external stakeholders to support change. Standards for behaviour in the workplace and flexible working arrangements were in place to help make for a more attractive career opportunity.
The Cabinet Office Capability Review Report on the CPS in June 2007 was also very positive.
We can see from the figures I have cited, that “aspirational” targets as opposed to quotas, seemed to have worked in the Civil Service. I pause here to observe, that I have been misquoted in the press, as advocating quotas. This I have never done. However, I am interested in the question - are targets appropriate in judicial selection? Even if they are not, what can be learnt from the initiatives put in place in pursuance of targets in organisations such as the CPS?
The future of judicial diversity
So what about the future of judicial diversity? Considerable work is being done by the Ministry of Justice, the Judicial Appointments Commission and the Judicial Office, which have a trilateral strategy. The judiciary itself and the professions are also working to address the issue. Time does not allow for me to go into the detail of the work. However, the time has come, it seems to me, for there to be consideration and engagement by those outside the professions and the judiciary as to the kind of judiciary they want to see in the 21st century. To this end, it is hoped to have a conference on the topic, but this will not be in the immediate future. Moreover, it is not the only forum in which these questions can be asked. I see before me a wealth of diverse talent and experience. Many of you here today, may well have ideas as to how you think that diversity in the judiciary, and indeed the Criminal Justice System can be enhanced. If you do, please let me know. It may be that research is required. For example, Dr Abbas in his review of research on ethnic inequalities entitled “Diversity in the senior judiciary” commissioned by the former Commissioner for Judicial Appointments (October 2005), concluded that qualitative research is needed to examine the processes of applications, interview and appointment to the senior judiciary in order to determine what works and how further to develop opportunities for ethnic minorities, whose representation at the lower levels is increasing. With the advent of the Judicial Appointments Commission, it is to be hoped that such research will be possible. Whatever issues emerge, their resolution should have the common aim of maintaining a judiciary of which we can continue to be proud, which includes, of course, the desirability of having a judiciary which better reflects the society it serves.
Instead of the traditional question and answer session, I want to turn the tables by asking you questions. How important is it to have a diverse judiciary and why? What measures do you think can be taken to increase diversity in the judiciary and the justice system generally? What skills should a 21st judge have? Do you think the perceptions of those BME defendants interviewed for the research of “out of date judges” is fair? If so, what do you think can be done to change the image? Can any diversity initiatives you have experience of be transposed to the judicial workplace? How does diversity fit into a test of merit? I welcome your views on what is just a sample of the many questions there are to be answered.
The Honourable Mrs Justice Dobbs DBE