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The disproportionate effect of s 57 of the Criminal Justice and Courts Act 2015 (findings of fundamental dishonesty) on ethnic minorities. By Azeem Ali
I recall, when I was a child of 10 years, walking with my father. A group of young men threw stones at us and shouted ‘P**i’. I looked up at my father, expecting him to respond to the abuse, as any child would. He looked down at me and said, ‘Son, not every situation demands an answer. There is a time and place for everything. Look at the number of people and their size. A response from us could lead to them harming us.’ I agreed, and my late father’s words still have great impact on me. Some battles are just not worth fighting for all sorts of reasons.
I have, however, wrestled with how poorly ethnic minorities are dealt with in the courts for so long now and I am firmly of the view that this battle for justice is one worth fighting. In my 20 odd years of practice, I have seen continual discrimination against ethnic minorities within the court system. The findings of Racial Bias and the Bench, the report published in November 2022, resonated deeply with me. In my own area of practice, I see it in the particular application of s 57 of the Criminal Justice and Courts Act 2015 – the power of the court to make a finding that a claim is fundamentally dishonest or fraudulent, in claims where personal injury is pursued. My experience is that the effect on ethnic minorities has been grossly disproportionate.
The purpose of writing this article is to raise awareness of this issue among judges and advocates to a level where it simply cannot be ignored; and consequently for this topic to no longer be the ‘elephant in the room’.
When judges are sworn in, they take the judicial oath which states ‘… And I will be right to all manner of people after the laws and usages of this realm, without fear or favour, affection, or ill will.’ The guiding principles for judicial conduct are distilled from the fundamental values set out in the Bangalore Principles of Judicial Conduct which derive from the United Nations Human Rights Commission – these principles are: independence, impartiality, integrity, propriety, equality, competence and diligence. The Guide to Judicial Conduct Guide (fourth amendment 2020) states that ‘the judge should seek to be courteous, patient, tolerant and punctual and should respect the dignity of all. He or she should ensure that no one in court is exposed to any display of bias or prejudice from any source.’ It also states: ‘The principles of exercising equality and fairness of treatment have always been fundamental to the role and conduct of the judiciary when carrying out their judicial functions and are inherent in the judicial oath.’ I would argue that there is a responsibility for the judge to make sure that their courtroom is completely equitable and a safe and completely unbiased environment.
I first saw discrimination in the criminal justice system. I had hoped this attitude would be better for civil cases. However, sadly it has been the same. I have many examples which have a common theme: often when you have an Asian or Black client, your opponent tells you quickly ‘they are lying’. Sometimes they ask your client to produce a passport or licence to prove they were the same person in the car. I have never experienced this with a non-ethnic minority client. This is bad enough; however, I feel that the environment which allows this is set by the approach of the judge in court. There are some judges who always tend to make a finding of fraud when dealing with an ethnic minority individual. What are they looking at? The evidence, which almost always in the case of an ethnic minority is unfavourable towards them? Or could this just be a remarkable coincidence? These are serious questions that strike at the heart of a society that purportedly seeks to be fair and equitable.
Also of grave concern is inconsistency of approach. I remember appearing before a Circuit Judge who also happened to be a silk. I represented a client with multiple breaches of the Civil Procedure Rules. This meant that we were at court with no evidence, as the witness statements were served late, along with other breaches. I had to apply for an adjournment and was pleasantly surprised when it was allowed.
Only four weeks later, I went before the same judge. I represented a client who was of Sri Lankan origin. The single breach in that case was that the interpreter had not been called and it was not clear whether it was the client’s or solicitor’s fault at that stage. I informed the client that I was confident that the trial would be adjourned, as the judge had adjourned a case four weeks earlier with multiple breaches which were of a more serious nature. Surprisingly, the judge refused the adjournment and struck the client’s case out. I cannot think of a similar non-ethnic minority case, where a case has been struck out for a single breach and where it is not even clear if it is the solicitors’ or client’s fault. Just coincidence? Perhaps…
In another case, I represented an Asian client who appeared to be very credible. As soon as my client gave her first answer, the judge looked at me to suggest that he did not believe her. The case was certainly not an obvious case of dishonesty on the papers and it certainly did not make any sense to show such cynicism of the client’s evidence at such an early stage. As the client gave her answers in cross-examination, it became increasingly obvious that despite her credible responses, she was not being believed and the expressions of the judge were such that it was obvious. It was clear that the judge was looking to make findings of fundamental dishonesty, even though the evidence did not warrant it. Once she finished her evidence, the client asked me in conference: ‘Is the judge just racist?’ About half an hour later, the client decided she would rather pay £10,000 costs than risk a finding of fraud. Cause and effect. I have many more examples – far too many to share here.
There are three types of judges, from my experience: (1) those who almost always make findings of fundamental dishonesty on cases involving Asian or Black clients – I accept this is a small though significant minority; (2) those who are fairer than category (1) though find it harder to accept an Asian or Black client’s version of events and their protestations of honesty, often there appear ‘obstacles’ you never seem to get in other cases, which leads to the probability of an Asian or Black client being declared fraudulent much higher than in other cases – this category appears to me to apply to the majority of judges, including those appointed from the ethnic minorities; and (3) those judges before whom there appears to be no difference in treatment of clients – these, in my view, form a small minority.
I have read the entire Guide to Judicial Conduct. and was pleasantly surprised to see it was written with a great deal of care, attention, and insight into matters around equality, diversity and inclusion. So, it appears to me that many decision-makers are not following their own guidance properly.
The Lammy Review (September 2017) puts forward the idea that by appointing more ethnic minority judges, there is a more diverse Bench and this, in turn, leads to a fairer situation for ethnic minorities. Well, ironically, this is not a ‘black and white’ issue and this is not the simple solution it sounds. I believe that with institutional racism, the problem becomes a lot more complex – it’s the ‘collective failure’ of an organisation that leads to discrimination. The appointment of more ethnic minority judges does not solve the problem on its own. If this were the case, then I believe society would be well on its way to tackling discrimination against ethnic minorities. While it’s correctly argued that the Bench is not diverse enough, it is more diverse than, let’s say, 20 years ago. By that token the situation should have improved considerably, but from my experience it has not.
When I have discussed with colleagues the problem of the disproportionate effect of s 57 on ethnic minorities, a lot of blame is placed upon defendant insurers. However, if a defendant insurance company has made unfounded assumptions, the court should always be there as the ultimate ‘check and balance’ to ensure justice is achieved for all, regardless of their background.
Here, advocates should play a part in assisting the courts. Subject to our professional obligations, counsel can always advise solicitors and clients on the best way forward. Of course, subject to the duty to the court, a barrister has to look at the best interests of the client. There is, however, clear latitude in how counsel proceed in their client’s best interests. If you are being asked to run poor points, which nevertheless may find traction before a particular court, then surely you can consider advising that these points are not worth pursuing?
Often, when it comes to discrimination, insufficient consideration is given by advocates in relation to their own conduct in advancing their client’s case. On this point, it is worth us looking at the relevant provisions from the Bar Standards Board Handbook as well as the Equality Act 2010.
While I believe that anyone appointed to the Judiciary should have justice and fairness enshrined in their character, I do realise that pure idealism will not get us very far. For example, everyone should be driving at a safe speed because we know this protects lives. However, it is recognised that without ‘eyes’ (i.e. cameras) on the road and penalties you cannot expect all people to drive safely. Similarly, I believe that court inspectors should visit the courts randomly to see what is going on. This will put decision-makers on notice that society is taking the idea of true fairness in the courts seriously, and could well result in fairer decisions being made.
Often individuals will only perform well in any job when they know they are properly regulated and audited. Why not apply this to judges? Surely there is nothing more important than justice in the courts. The success rates of surgeons is routinely monitored. Why not the justice system?
I am also of the view that statistics should be compiled about the decisions reached in civil courts for different ethnic groups, regarding findings of fundamental dishonesty being made. While I accept the results will not be conclusive, I am sure that there will be a clear and significant disparity seen in outcomes between ethnic minorities and others in the decisions given by the courts. This data can then be a starting point for much needed discussions. Otherwise, what will continue are truths that are largely known about but rarely discussed.
Justice for all is surely a battle worth fighting for. In my view, a society is judged not by how it deals with the strongest. A society is judged by how the most vulnerable are treated.
Azeem Ali is a barrister at The Barrister Group (formerly known as Clerksroom). He specialises in personal injury (particularly fatal accidents, very serious injuries, dental injuries and whiplash-type injuries), credit hire, consumer credit (defending a variety of clients involved in disputes with banks resigned consumer credit agreements) and contract work – commercial cases in particular. He is based in Manchester with a practice that takes him nationwide.
I recall, when I was a child of 10 years, walking with my father. A group of young men threw stones at us and shouted ‘P**i’. I looked up at my father, expecting him to respond to the abuse, as any child would. He looked down at me and said, ‘Son, not every situation demands an answer. There is a time and place for everything. Look at the number of people and their size. A response from us could lead to them harming us.’ I agreed, and my late father’s words still have great impact on me. Some battles are just not worth fighting for all sorts of reasons.
I have, however, wrestled with how poorly ethnic minorities are dealt with in the courts for so long now and I am firmly of the view that this battle for justice is one worth fighting. In my 20 odd years of practice, I have seen continual discrimination against ethnic minorities within the court system. The findings of Racial Bias and the Bench, the report published in November 2022, resonated deeply with me. In my own area of practice, I see it in the particular application of s 57 of the Criminal Justice and Courts Act 2015 – the power of the court to make a finding that a claim is fundamentally dishonest or fraudulent, in claims where personal injury is pursued. My experience is that the effect on ethnic minorities has been grossly disproportionate.
The purpose of writing this article is to raise awareness of this issue among judges and advocates to a level where it simply cannot be ignored; and consequently for this topic to no longer be the ‘elephant in the room’.
When judges are sworn in, they take the judicial oath which states ‘… And I will be right to all manner of people after the laws and usages of this realm, without fear or favour, affection, or ill will.’ The guiding principles for judicial conduct are distilled from the fundamental values set out in the Bangalore Principles of Judicial Conduct which derive from the United Nations Human Rights Commission – these principles are: independence, impartiality, integrity, propriety, equality, competence and diligence. The Guide to Judicial Conduct Guide (fourth amendment 2020) states that ‘the judge should seek to be courteous, patient, tolerant and punctual and should respect the dignity of all. He or she should ensure that no one in court is exposed to any display of bias or prejudice from any source.’ It also states: ‘The principles of exercising equality and fairness of treatment have always been fundamental to the role and conduct of the judiciary when carrying out their judicial functions and are inherent in the judicial oath.’ I would argue that there is a responsibility for the judge to make sure that their courtroom is completely equitable and a safe and completely unbiased environment.
I first saw discrimination in the criminal justice system. I had hoped this attitude would be better for civil cases. However, sadly it has been the same. I have many examples which have a common theme: often when you have an Asian or Black client, your opponent tells you quickly ‘they are lying’. Sometimes they ask your client to produce a passport or licence to prove they were the same person in the car. I have never experienced this with a non-ethnic minority client. This is bad enough; however, I feel that the environment which allows this is set by the approach of the judge in court. There are some judges who always tend to make a finding of fraud when dealing with an ethnic minority individual. What are they looking at? The evidence, which almost always in the case of an ethnic minority is unfavourable towards them? Or could this just be a remarkable coincidence? These are serious questions that strike at the heart of a society that purportedly seeks to be fair and equitable.
Also of grave concern is inconsistency of approach. I remember appearing before a Circuit Judge who also happened to be a silk. I represented a client with multiple breaches of the Civil Procedure Rules. This meant that we were at court with no evidence, as the witness statements were served late, along with other breaches. I had to apply for an adjournment and was pleasantly surprised when it was allowed.
Only four weeks later, I went before the same judge. I represented a client who was of Sri Lankan origin. The single breach in that case was that the interpreter had not been called and it was not clear whether it was the client’s or solicitor’s fault at that stage. I informed the client that I was confident that the trial would be adjourned, as the judge had adjourned a case four weeks earlier with multiple breaches which were of a more serious nature. Surprisingly, the judge refused the adjournment and struck the client’s case out. I cannot think of a similar non-ethnic minority case, where a case has been struck out for a single breach and where it is not even clear if it is the solicitors’ or client’s fault. Just coincidence? Perhaps…
In another case, I represented an Asian client who appeared to be very credible. As soon as my client gave her first answer, the judge looked at me to suggest that he did not believe her. The case was certainly not an obvious case of dishonesty on the papers and it certainly did not make any sense to show such cynicism of the client’s evidence at such an early stage. As the client gave her answers in cross-examination, it became increasingly obvious that despite her credible responses, she was not being believed and the expressions of the judge were such that it was obvious. It was clear that the judge was looking to make findings of fundamental dishonesty, even though the evidence did not warrant it. Once she finished her evidence, the client asked me in conference: ‘Is the judge just racist?’ About half an hour later, the client decided she would rather pay £10,000 costs than risk a finding of fraud. Cause and effect. I have many more examples – far too many to share here.
There are three types of judges, from my experience: (1) those who almost always make findings of fundamental dishonesty on cases involving Asian or Black clients – I accept this is a small though significant minority; (2) those who are fairer than category (1) though find it harder to accept an Asian or Black client’s version of events and their protestations of honesty, often there appear ‘obstacles’ you never seem to get in other cases, which leads to the probability of an Asian or Black client being declared fraudulent much higher than in other cases – this category appears to me to apply to the majority of judges, including those appointed from the ethnic minorities; and (3) those judges before whom there appears to be no difference in treatment of clients – these, in my view, form a small minority.
I have read the entire Guide to Judicial Conduct. and was pleasantly surprised to see it was written with a great deal of care, attention, and insight into matters around equality, diversity and inclusion. So, it appears to me that many decision-makers are not following their own guidance properly.
The Lammy Review (September 2017) puts forward the idea that by appointing more ethnic minority judges, there is a more diverse Bench and this, in turn, leads to a fairer situation for ethnic minorities. Well, ironically, this is not a ‘black and white’ issue and this is not the simple solution it sounds. I believe that with institutional racism, the problem becomes a lot more complex – it’s the ‘collective failure’ of an organisation that leads to discrimination. The appointment of more ethnic minority judges does not solve the problem on its own. If this were the case, then I believe society would be well on its way to tackling discrimination against ethnic minorities. While it’s correctly argued that the Bench is not diverse enough, it is more diverse than, let’s say, 20 years ago. By that token the situation should have improved considerably, but from my experience it has not.
When I have discussed with colleagues the problem of the disproportionate effect of s 57 on ethnic minorities, a lot of blame is placed upon defendant insurers. However, if a defendant insurance company has made unfounded assumptions, the court should always be there as the ultimate ‘check and balance’ to ensure justice is achieved for all, regardless of their background.
Here, advocates should play a part in assisting the courts. Subject to our professional obligations, counsel can always advise solicitors and clients on the best way forward. Of course, subject to the duty to the court, a barrister has to look at the best interests of the client. There is, however, clear latitude in how counsel proceed in their client’s best interests. If you are being asked to run poor points, which nevertheless may find traction before a particular court, then surely you can consider advising that these points are not worth pursuing?
Often, when it comes to discrimination, insufficient consideration is given by advocates in relation to their own conduct in advancing their client’s case. On this point, it is worth us looking at the relevant provisions from the Bar Standards Board Handbook as well as the Equality Act 2010.
While I believe that anyone appointed to the Judiciary should have justice and fairness enshrined in their character, I do realise that pure idealism will not get us very far. For example, everyone should be driving at a safe speed because we know this protects lives. However, it is recognised that without ‘eyes’ (i.e. cameras) on the road and penalties you cannot expect all people to drive safely. Similarly, I believe that court inspectors should visit the courts randomly to see what is going on. This will put decision-makers on notice that society is taking the idea of true fairness in the courts seriously, and could well result in fairer decisions being made.
Often individuals will only perform well in any job when they know they are properly regulated and audited. Why not apply this to judges? Surely there is nothing more important than justice in the courts. The success rates of surgeons is routinely monitored. Why not the justice system?
I am also of the view that statistics should be compiled about the decisions reached in civil courts for different ethnic groups, regarding findings of fundamental dishonesty being made. While I accept the results will not be conclusive, I am sure that there will be a clear and significant disparity seen in outcomes between ethnic minorities and others in the decisions given by the courts. This data can then be a starting point for much needed discussions. Otherwise, what will continue are truths that are largely known about but rarely discussed.
Justice for all is surely a battle worth fighting for. In my view, a society is judged not by how it deals with the strongest. A society is judged by how the most vulnerable are treated.
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