By Barnie Choudhury
They administer justice and safeguard the law, and yet they are the powerless victims of racism.
South Asian judges have this week blown the whistle on “a culture of racism, fear and bullying” in the British judiciary.
After a six-week investigation, Eastern Eye can exclusively reveal a systemic culture of racism in the judiciary, where black or Asian judges who “speak out or do anything which is not considered to be part of the club, face retribution”.
One judge said they were put on anti-depressants after contemplating suicide because the racist bullying was so bad.
“Those who worked with me would brief against me, and they would turn court staff against me,” they said. “When I raised it with the head judge, who was white, they said, ‘I don’t believe you’.
“If I formally complained I would have been blacklisted. I was really on the edge, heartbroken. It was just so horrible, and I had suicidal thoughts.”
A number of black and Asian judges spoke to Eastern Eye on condition of anonymity for fear of reprisals from judicial authorities. Some testimonies have been deliberately withheld so as to not identify the judges who spoke out.
The paper can, however, reveal that BAME judges have had their career paths blocked because of their colour, been told that their appointment to the bench was only to fill quotas and have been shunned by white colleagues.
“All I can say about this is what my boss says, what happened to me wouldn’t have happened to someone who’s white,” one confided.
“They carry on being racist covertly and cleverly now. Privately, they acknowledge my progress has been blocked. They know that because there are so many white people who started at the same time who’ve been promoted.”
Labour’s shadow justice secretary, David Lammy, who held a review into the treatment of black, Asian and minority ethnic (BAME) staff in the criminal justice system, has demanded an independent investigation if the allegations made in this report could not be answered.
Barry Gardiner, the former shadow international trade secretary and Labour MP for Brent North, has tabled questions in parliament, with one calling for an independent investigation into racism and harassment in the judiciary.
One BAME judge said, “If an Asian or black barrister becomes a silk or a judge, the white colleague will whisper that it’s because the judiciary needs to up numbers, rather than the fact we’ve made it on our own merit. We’ve only got there because of positive discrimination and preferential treatment.”
Another explained the toxic culture in the judiciary. “You hear judges, in a room full of people, say you’re a Muslim simply because you won’t have an alcoholic drink with them during office hours. But when white colleagues refuse to drink, nothing, absolutely nothing is said. You’re made to feel uncomfortable or singled out because of your race or religion.”
Progress, said one judge, is slow. “When I first started, we were being ostracised, and white colleagues wouldn’t talk to us when we were in the dining rooms. Now because there are more of us that’s changed, but not enough.”
A BAME judge explained how they were harassed. “They go after you with everything, and they make things up.
“I was called into a meeting with a senior judge, and they presented me with a list of transgressions I had apparently committed and said it was very serious. I was so upset, but I didn’t want to give them the pleasure of crying.”
The judges who have revealed their mistreatment said they could not make their feelings or experiences officially known because they have seen other non-white colleagues bullied and isolated after they had complained informally.
According to these judges, there is no direct racist abuse now, today’s racism is more covert and cleverer.
“Judges are actually thinking before they open their mouths in case their comments can be construed as being racist, but only in your presence,” said one. “When you’re out of the room, goodness knows what happens or what is said.”
Another said, “It’s very surreptitious, it’s a lot of tiny micro-aggressions. That’s what I’m going through the whole time. If you asked me, do you regret going into the judiciary? I would say yes, absolutely.”
All of them agreed that they felt they could not turn to anybody, and if they did, they would be singled out as a troublemaker and not ‘one of the club’.
Nazir Afzal, the former chief prosecutor in the northwest of England, said parliament needed to investigate the serious allegations of racism and bullying.
“Your information is absolutely correct,” Afzal said. “There’s no reason to suggest that it is not happening at that level, and the experiences of the people who have spoken to you is not surprising. It’s the case with the whole legal system from start to finish.”
According to latest official figures for 2019, only 7.4 per cent of court judges were non-white. In the 2011 Census, which is almost 10 years out of date, 14 per cent of the UK population were from a BAME background, showing the gulf in racial diversity in the judiciary. Only 100 are Asian, and the judiciary does not know the ethnicity of 441 or almost 14 per cent of its court judges.
One of the challenges in tackling racism and bullying is that the judiciary is independent of the government and parliament. On its website, it explains how it is governed.
“The lord chief justice has a Judicial Executive Board (JEB) to help provide judicial direction and a Judges’ Council (JC), which is representative of all levels of the judiciary,” it states.
England and Wales also have the Judicial Conduct Investigations Office (JCIO).
“Our statutory remit is to deal with complaints of misconduct. This means how a judge has behaved personally, eg, in making a racist remark, inappropriate use of social media, or falling asleep in court,” according to its webpage.
Although there appears to be a system, there is one huge problem, said a source.
“Not one single person on the board, council or investigations office is of colour. So how on earth can you have any confidence of a fair hearing, especially when you’re dealing with people who rely on second-hand information, hearsay and whispers in corridors?
“These are old, white, predominantly male judges. Really? Do you expect them to admit the entire system is racist?”
That is why Gardiner has tabled two separate, written named-day questions asking the justice secretary to explain why neither the board nor the council has BAME members. This parliamentary device means the government must answer these questions at least three days after they are submitted.
The Labour MP has also put in an early day motion calling for an independent investigation into racism and harassment in the judiciary.
It states: “This House notes with grave concern the investigation by Eastern Eye newspaper into allegations of discrimination against and harassment of BAME judges by other members of the judiciary; expresses its concern that no member of either the Judicial Executive Board, or the Judges Council that advises the lord chancellor, has any members from a black and minority ethnic background; and urges the justice secretary and the lord chancellor to initiate an independent investigation into these matters.”
One judicial appointment explained how racism is still flourishing.
“It still happens today,” they revealed. “You walk into a judge’s chambers, a dinner hall, and they will look at you as if you don’t belong, that you’re really a waiter. That is fully racist or unconscious bias, as some like to call it.”
When Eastern Eye asked the judiciary to respond to the claim of a culture of racism, bullying and harassment, a spokesperson said, “It is not possible to respond to unparticularised concerns, but appropriate grievance procedures exist to enable complaints to be raised by judges against other judges and staff, and vice versa, and formal complaints may be made to the Judicial Conduct Investigations Office.
“If judges have suffered racism, harassment, victimisation or bullying from colleagues or anyone else, these processes provide for independent investigation.”
On its website the judiciary explains how it is accountable, independent, and how it conducts itself. Yet nowhere in these sections is there any mention of how judges can bring up issues of bullying and racism they may face.
A spokesperson for the JCIO said, “The Judicial Conduct Investigations Office is an independent body, reporting to the lord chancellor and lord chief justice, set up by parliament to investigate specific allegations of misconduct made against identified judicial office holders. It does not have the statutory powers to mount an investigation of the sort you suggest.”
The Leicester East Labour MP, Claudia Webbe said, “Even people at that level of seniority are being bullied, harassed and victimised, it’s outrageous.
“It can give no confidence to others seeking justice and redress for racism if our own judges are themselves experiencing such inequality.”
If a judge wishes to take legal action, they can only do so by suing the Ministry of Justice (MoJ). Eastern Eye understands that so far only one judge has taken the MoJ to court over claims she was bullied.
In 2019, after a seven-year battle, the Supreme Court ruled that district judge Claire Gilham was legally entitled to whistleblow, and she can now take her case to an employment tribunal. But when she initially brought her complaints to court staff, Gilham told BBC News she was “bullied and ignored”, something which resonated with several non-white members of the judiciary.
One confided, “Because I dared to complain about the way I was being treated, I was given less prestigious work, and I was told there was a pecking order.
“The white senior judge blocked me from doing any work I was a known expert in. I was given caseloads which were unmanageable and meant I had to stop one hearing to hear another, so it looked as if I was disorganised and I wasn’t fit to be a judge.”
Statistics from the JCIO’s 2018-19 annual report shows that of the 1,895 complaints made, 522 or 28 per cent were investigated. The office upheld 55 or 11 per cent of these, but the report does not give any details about the nature of the complaints. These are put online, but they are taken down after one year.
The decision of judges who are removed from office will stay online for five years. In effect, there is no permanent public record of a complaint being upheld against judges.
A spokesperson said, “The publication policy seeks to strike a balance between transparency and fairness to the judges referred to in the statements.”
Lammy said, “This report raises serious questions about the treatment of BAME members of the judiciary. If these allegations cannot be answered, there must be an independent investigation into whether they point to structural problems.
“Since I completed my review into disproportionality in the criminal justice system, I have been calling for action to make structural change in our judiciary.”
Webbe agreed it was time for some form of probe. “Whether it’s a government-led inquiry, or a justice select committee investigation, something more has to be done,” she said. “If Black Lives Matter means anything, then we have to address the systemic and structural racism in the judiciary itself.”
All the judges Eastern Eye spoke wanted an examination of the judicial structure and system.
“If you do cause trouble, whistleblow, you won’t progress,” one explained.
“There are a few BAME judges who have got to the higher levels. I don’t know whether they have had to play the system, but I suspect they tend not to ruffle any feathers. There is no way I would be a whistleblower because I just don’t think I would be able to get on.”
In the Gilham’s case, the MoJ said it accepted the Supreme Court’s decision and was “considering how to implement it”.
Sir Suma Chakrabarti was the permanent secretary at the MoJ between 2008 and 2012, which meant he was the highest civil servant in the department. He is concerned to hear about allegations of racism and bullying in the judiciary.
“This should concern any of us. Whether they are right or wrong to fear, it isn’t the point. The point is that’s how they are feeling. So, you have to talk to them, and you have to understand why they are feeling that way.”
Sir Suma suggested that any judge who felt they were victims of racism and bullying should take their grievance to the permanent secretary.
“You have to try and address it, so I would encourage those same members of the judiciary to speak up directly to the current civil service leadership in the Ministry of Justice as well as the ministers. But they should be able to talk directly to the permanent secretary.”
This may be the only way for BAME judges to air their concerns because the system appears to be one where the only avenue to complain relies on their putting their careers at risk.
When Eastern Eye asked whether the lord chancellor, the JEB or JC would investigate allegations of a culture of bullying and racism, a spokesperson said, “We cannot answer this question because you have sent only an allegation with no evidence. Where specific allegations are made they can be investigated.”
Eastern Eye has sent its evidence to the chair of the justice select committee, Sir Robert Neill, and asked whether his colleagues and he will investigate the allegations of cultural, systemic, structural and institutional racism in the judiciary.
A committee member, Richard Burgon, a former shadow justice secretary said, “I am very concerned to read these testimonies from members of the judiciary. They should concern us all. Racism needs to be tackled wherever it is found in our justice system and in society more widely.”
Eastern Eye was told by an anonymous source that one BAME judge is taking legal action against the MoJ for racism. However, the MoJ said it has no record of any ongoing proceedings.
Afzal said that it was clear that the judiciary needed reform.
“Why would you want to become a judge if you know that, as a judge, you’re going to be treated unfairly because of your racial background?” he asked. “It’s discouraging. It [judiciary] needs a root and branch approach, change, wholesale re-engineering, and then, and only then, will it be fair.”