In the jaw-dropping case of the “Catalina” (1938) which concerned a collision between a Portuguese steamship and a Norwegian motor vessel, the Divisional Court briskly removed the arbitrator because he had observed out loud: “The Italians are all liars in these cases and will say anything to suit their book. The same thing applies to the Portuguese.”
In 2020 stereotyping and racial (and national) biases are rarely if ever so blatantly expressed as in the 1938 Catalina case. Indeed, those who make decisions under their influence are sometimes unaware themselves of what they are doing.
But stereotyping and racial bias, both conscious and unconscious, can still prejudice litigants and witnesses in civil and criminal cases, and the chances of young lawyers trying to join the profession.
Can our laws, professional regulations and ethical standards change how people think? And, if not, or if those are not enough, what is to be done?
The question for this year’s Times student essay competition, sponsored by One Essex Court, is: “Stereotyping and unconscious racial bias: stumbling blocks for parties, witnesses and aspirant lawyers alike. How should the law and the profession respond?”
With more than £10,000 of prizes on offer to the six finalists and the prospect of having their entry read by the Lord Chancellor and senior members of the judiciary, as well as the editor of The Times, this is an opportunity for student commentators to tackle one of the most critical issues of our time.
The crux of the question which students will need to focus on is the extent to which the approach of lawyers and judges to defendants in criminal cases, to parties in civil cases, to witnesses, and also to other members and would-be members of their own professions, who come from ethnic minority backgrounds, can be distorted by false preconceptions and stereotyping, and what can and should be done to remedy this.
The last few years has seen a series of reports into these issues: notably, the Race Disparity Audit published by the then Prime Minister Theresa May in 2017, which showed inequalities between ethnicities in educational attainment, health, employment and treatment by police and the courts: and the 2017 Lammy Review by the current Shadow Secretary of State for Justice and Shadow Lord Chancellor David Lammy, which found evidence of bias and discrimination against people from ethnic minority backgrounds in the justice system in England and Wales.
Part of the problem as found in the Lammy Review is that those from ethnic minority backgrounds do not trust the criminal justice system. For example, BAME defendants plead not guilty to 40 per cent of criminal charges, compared to 31 per cent for white defendants; the difference explained by a lack of trust in the criminal justice system. Not guilty pleas are, of course, appropriate when defendants are not guilty, but where an offence has been committed, a “not guilty” plea is bad for everyone, resulting in distress for victims and harsher sentences for those found guilty.
In February, the Ministry of Justice published a 2020 Update: Tackling Racial Disparity in the Criminal Justice System, which included progress responding to the Lammy Review.
Over the summer, the debate has been reignited with the electrifying Black Lives Matter movement, in the midst of which the Prime Minister has announced another commission to look at criminal justice and education.
But will yet another review and report assist?
One well-publicised area of concern is the lack of diversity in the legal profession itself. Earlier this month, Lord Reed, Supreme Court president, used his first media interview since taking over the role from Lady Hale to draw attention to this issue.
What initiatives might give those from ethnic minority backgrounds who have to, or choose to, deal with or enter the legal world, more confidence in those who are entrusted with the administration of justice?
And what will it ultimately take to address the over- representation of those from BAME backgrounds in the criminal justice system?
The competition is open to all students registered with UK higher education institutes. Essays should be no more than 1,000 words and must be received by 30 November 2020. You can find the full rules here.
London One Essex Court
Temple London EC4Y 9AR
Tel +44 (0)20 7583 2000
Fax +44 (0)20 7583 0118
Singapore 28 Maxwell Road
#04-14 Maxwell Chambers Suites
Tel +65 6634 1363
Fax +65 6634 1370