July 23, 2018
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The lack of diversity in the judiciary matters. Crime rates are again increasing across the country. There will be flashpoints between different communities, particularly with the rise of far-right extremist organisations in the UK and across Europe, and a fair and impartial judiciary that reflects the diversity of the community is more likely to command the respect of those that depend upon it.
Despite being just 14 per cent of the population, BAME individuals make up 25 per cent of prisoners, while more than 40 per cent of young people in custody are from BAME backgrounds. There is greater disproportionality in the number of black people in prisons here than in the United States.
This should be a matter of great public concern. It is not surprising that 51 per cent of people from BAME backgrounds born in England and Wales who were surveyed believe that “the criminal justice system discriminates against particular groups and individuals”.
The answer to this is to remove one of the biggest symbols of an “us and them” culture – the lack of diversity among those making important decisions in the criminal justice system – from prison officers and governors to magistrates and the judiciary.
Judicial diversity is important, something that has repeatedly been recognised by senior judges as well as by parliament. In 2012, a select committee inquiring into this problem concluded: “The judge inhabiting a courtroom in England and Wales is stereotypically a white male from a narrow social background. Despite concerns raised over the last few decades, the proportion of women judges, black, Asian and minority ethnic judges and others from under-represented groups has increased too slowly.”
Founded in 2006, the Judicial Appointments Commission (JAC) has the statutory responsibility “to select candidates solely on merit; to select only people of good character; and to have regard to the need to encourage diversity in the range of persons available for judicial selection”.
There has been a concerted effort by BAME lawyers, some prominent judges and by the JAC to increase improve diversity over the last 15 years. The latest statistics and some recent appointments give some cause for hope.
The appointment of Sir Rabinder Singh to the court of appeal was a major win for diversity – a brilliant mind, universally respected for his ability, ideally suited for the job, who just happens to be a Sikh. Lady Cheema-Grub’s elevation to the high court was also a long time coming for a star candidate. Anuja Dhir QC’s recent move to the Old Bailey is another high-profile appointment based on ability – she happens to be a woman and from a BAME background. The message is clear: no longer will race and gender get in the way of appointment on merit.
Latest figures for 2018 show that in a population of 14 per cent BAME individuals, seven per cent of court judges and 11 per cent of tribunal judges were of BAME background. This is a huge improvement on figures from 10 years ago. The improvement is even better for women – 29 per cent of court judges and 46 per cent of tribunal judges are female.
However, there is much room for progress and significant cause for concern still persists. There are still no BAME judges in the supreme court (and only eight per cent of women) and recent supreme court remarks suggest it will be some time the situation improves. In the high court, only three per cent of judges are from a BAME background, and only 24 per cent are women.
Of those occupying senior judicial positions the majority are privately educated, who then go on to Oxford, Cambridge or Durham universities. Elite barristers’ chambers or “magic circle” law firms reel them in, before the conveyor belt propels them onto the Bench. This has been at the root of a self-perpetuating ruling class. The Eton/Rugby/Oxbridge sausage factory churns out identical judges, politicians and business leaders generation after generation, who then appoint others in their own image. It takes time and effort to change such a well-oiled machine.
The latest figures are not entirely positive, but I prefer to see the glass as half-full than half-empty. The first changes are always at the bottom. To see the changes filter to the top, where the seat of power lies, is always the most difficult part of the struggle for change. It is never easy when one is trying to change the most conservative of professions, the last stand of a white, upper middle-class, male club. But the arguments for a diverse judiciary are compelling. And they are being won.
Sailesh Mehta is a barrister at Red Lion Chambers. He was appointed a recorder (part-time judge) of the crown court in 2009. He is a past chair and founding member of the Society of Asian Lawyers.