The Disproportionate Effect of s57 of the Criminal Justice and Courts Act 2015 (Findings of Fundamental Dishonesty) on Ethnic Minorities

I recall when I was a child of 10 years walking with my father, when a group of young men threw stones at us and shouted “P… i”. I looked up at my father to respond to the abuse, like any child would do. My father looked down at me and said, “son, not every situation demands an answer. There is a time and place for everything. Look at the amount of people and their size. A response from us could lead to them harming us”. I agree with him, and my late father’s words impacted upon me for the rest of my life. 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 for them is one worth fighting. I have been practising for nearly 25 years now and I therefore feel it almost incumbent on me to write about this issue. If I will not discuss this, then why would I expect anyone else to raise the issue? 

In my 20 odd years of practice, I have seen constant and continual discrimination against ethnic minorities within the court system. For present context, I have seen this in the particular application of s57 of the Criminal Justice and Courts Act 2015. For those who are not familiar with this, it’s the power of the court to make a finding that a claim is fundamentally dishonest or fraudulent, in claims where personal injury is pursued. From my real time experience, the effect on ethnic minorities has been grossly disproportionate. In other words, more findings of fundamental dishonesty are made against ethnic minorities on average and generally speaking they appear to be more at risk from such findings being made. There can only be two potential reasons for this. Either ethnic minorities are just more dishonest than others, or the system is inherently unfair. I cannot accept the first reason as being a serious proposition. In my view the system is inherently unfair.

I am often told that this is “unconscious discrimination” or so-called “unconscious bias” - having been a barrister for so long I really struggle to accept this. I find it difficult to comprehend that such intelligent people could not be aware of this discrimination. A judge is usually also an experienced lawyer and has dealt with a diverse range of clients in their career. In that context, I find it hard to fathom how this is completely unconscious bias. Couching this problem in terms of an unconscious bias in my view just creates an easy “get out” clause for a troubling problem. It’s a way to make people feel comfortable perhaps. But when has there ever been serious change in society by people feeling comfortable?

I reiterate the Equal Treatment Bench Book (February 2021), the guidance which all judges are encouraged to take into account wherever applicable to ensure they can meet the requirements of being free of prejudice and partiality. Paragraphs 33 – 35 are important enough to repeat here in full: 

“Recognising and eliminating prejudices, including a judge’s own prejudices, is essential to prevent wrong decisions and to prevent erroneous assumptions made about the credibility or actions of those with backgrounds different from the judge’s own.

Unconscious prejudice (demonstrating prejudice without realising it) is more difficult to tackle and may be the result of ignorance or lack of awareness.

Ignorance of the cultures, beliefs and disadvantages of others encourages prejudice. It is for judges to ensure that they are properly informed and aware of such matters, both in general and when the need arises in a specific case.” (The emphasis is mine.)

The February 2021 version of the Equal Treatment Bench Book also contains new sections on anti-Semitism, Islamophobia, modern slavery, and multicultural communication in recognition of the complex considerations needed to ensure fair trials and hearings are undertaken by the Judiciary of England and Wales.

Objectives

Those who follow me on social media know that I have been talking about writing this article for some time. This is because the regular and continued discrimination I see within the Courts sits uneasily with me and I find it difficult to balance this with the pride I have for the judicial system and my role within it. 

I would like to achieve from this article the following:

• to raise awareness of the issues amongst judges and advocates participating in the system to a level where it simply cannot be ignored; and consequently,
• for this topic to no longer become the ‘elephant in the room’ so that more people are talking about it directly. 

This is because in my experience, you can’t solve a problem unless you talk about it properly. 

Responsibility for the courtroom 

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 court room is completely equitable and a safe and completely unbiased environment.

There is an increasing belief that we should be striving for equity as opposed to equality. The Cambridge dictionary defines equality as “the right of different groups of people to have a similar social position and receive the same treatment.” It defines equity as “the situation in which everyone is treated fairly according to their needs and no group of people is given special treatment.”

I consider that it is even more important that this concept of equity is reinforced within the judicial system given that in order to ensure fair treatment and outcomes we have to ensure that opportunities are proportionate to the need of the individual and their circumstances. This is recognised within the Equal Treatment Bench Book (February 2021) which states that “Treating people fairly requires awareness and understanding of their different circumstances, so that there can be effective communication, and so that steps can be taken, where appropriate to redress any inequality arising from difference or disadvantage.”

I first saw this discrimination in the criminal justice system. I remember that when I ever had an ethnic minority client, there was often the look of mistrust in the judge’s eyes. No matter how I attempted to draw the sympathy of the judge, the judges seemed to get even more angry with the client. Even something like the young man’s mum had died seemed to elicit little apparent sympathy. If, however, I had a non-ethnic minority client, then whilst initially the judge maybe angry at the client, they would often start showing more empathy for the defendant and be far more lenient the more I mitigated. The more, however, you mitigate for ethnic minority clients, the less sympathetic the judge would
get, and nothing would cause them to show sympathy. So I Iearnt from experience that if you have an ethnic minority client one needed to make briefer representations so as to not make the situation worse with the judge for the client. If I had a non-ethnic minority client then it was “business as usual”, and a lengthy mitigation would often greatly assist the client. Then all the training I had at Bar school would come into play, namely persuasion with words, drawing out the relevant facts and marshalling your points. With an ethnic minority client, often you had to throw the training out of the window and just do your best to assist the client. 

There were exceptions to this, though these were rare. If I prosecuted an Asian or Black person, I knew with almost certainty they would be convicted. If I prosecuted a non-ethnic minority person, then it was all up in the air and then all the normal rules came into play. The same with imprisonment or remands in custody which, from my real time experience, are much harder on ethnic minorities; I can never ever forget the apprehensive look on the judges’ faces when you mitigate for an Asian or Black client and can never forget the excessive jail terms they used to get, in comparison to others. When I was defending, if the client was Asian or Black then I found this was perhaps the most important factor in deciding guilt or innocence. Often the decisive factor.

I had hoped this attitude would be better for civil cases. However sadly it has been the same. I particularly noticed this on fundamental dishonesty cases. The biggest factor in deciding whether fraud or fundamental dishonesty is raised as an issue in the case, is often the ethnicity of the client. When this happens, the actual evidence plays a far more insignificant role. 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 license to prove they were the same person in the car. I have never experienced this with a non-ethnic minority client.

However, if it were a non-ethnic minority client, then your opponent will often take a far more measured approach and so it’s business as usual where you can take advantage of all the training you have had. The outcome will depend on how the evidence pans out and how the judge sees the case.

Another concerning issue arising more frequently is that when you have an ethnic minority case, you will be asked seriously if you want to “drop” the case, even if the evidence is clearly strong. You will be told often that your case is useless, even when it is clear to you that your client is credible. 

This is bad enough; however, I feel that the environment which allows this can be the approach of the judges in court. There are some judges who will 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. 

Of grave concern here is the inconsistency of approach by judges. For example, I remember appearing before a Circuit Judge who also happened to be a QC. I represented a client with multiple breaches of the CPR. In summary 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. I was pleasantly surprised when the adjournment was allowed. Only 4 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 4 weeks ago with multiple breaches, which were also 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…

I do have however other examples. 

On another case, I had an Asian client. She appeared to be very credible. As soon as she gave her first answer, the judge looked at me to suggest that he did not believe the client. 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 the 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?” It was clear that this intelligent client had picked up that something was just not right. 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 never had such a similar example on a non-ethnic minority case. 

Another case I recall was when I represented an Asian taxi driver. He was originally from Pakistan. He had migrated to Italy 10 years before and then a few years ago arrived in the UK. He had a claim for personal injury and on the papers appeared to have a strong case. Certainly fundamental dishonesty did not seem likely from the papers. The client required an interpreter. He was robustly cross-examined. The client was clearly struggling with answering some of the questions as he did not understand the cultural context of the country as he had not been in the UK for long. The first time he said this, I saw the judge look up and mutter under her breath “My Lord”. The client stated this a few times and the judge on a number of occasions would look up and at times mutter under her breath “My Lord”. I think she was oblivious to the fact that despite the low tone she spoke in, I could hear what she was saying as could the client. This appeared to distract the client somewhat as well. It was crystal clear from the way the hearing went that this client was facing findings of fraud, despite there being no evidential basis for this. Fortunately, on this occasion, the defence counsel agreed to no order as to costs, if the client withdrew his claim. The client promptly withdrew the claim not wanting to be declared a fraud when he was not one, though shortly thereafter he quipped: “Shall I move back to Italy?

I recall appearing before a senior Circuit Judge. My client’s case had been settled and both me and my opponent appeared before the judge. After it had been explained to the judge that the case had been settled, the judge appeared to share a joke with my opponent in court about that “Nigerian case”. I had no idea what the conversation was about. However, I asked the opponent counsel after the hearing what the “joke” was about. I was informed that he recently appeared before this Circuit Judge, and he was cross-examining a claimant who was born in Nigeria and arrived in the UK recently. The case involved a personal injury claim with allegations of fundamental dishonesty. The barrister explained that during trial, the claimant kept on saying he could not understand the questions being put forward in cross-examination, due to the barrister’s regional accent. This barrister informed me that the judge promptly informed the claimant that if he, the judge, could understand him, then there was absolutely no reason why the client (of Nigerian origin) could not understand. The barrister informed me that a finding of fundamental dishonesty was made largely on this basis. The judge found that the claimant was just trying to make a financial gain. Of course, I was not there but this was clearly the perception of the barrister who was acting against the claimant – and this was the reason he believed he had won the case. In my view however this example on its surface does not look or sound good, especially when set against the Equal Treatment Bench Book. It also reminded me of the evening beforehand whereby I had been in the hospital with my mother. My mother was a Headteacher and English teacher in Pakistan in the 1960s. She has been in the UK for about 50 years and is proficient in speaking English. My mother was however rather nervous in hospital that evening and proceeded to ask me to “translate” what each Doctor was saying. This is because her first language was not English and she was in a situation in which she felt out of her depth – just like a claimant would on the stand. My mother certainly had no financial gain to make, and I often wonder what really happened in that so called “Nigerian case”.

The above example may well be a case where a person is considered to have been dealt with “equally”, though he may have not been dealt with “equitably”.

I have many more examples – far too many to share here. I can already visualise those reading these examples however saying: “how does this prove anything?” Perhaps there would have been equal hostility to a non-ethnic minority claimant by those same judges? Where is the evidence? Well, you have my experience as a barrister for nearly 25 years that in many of these cases, the fairness is just not there. Whenever I have an ethnic minority client then apart from the evidence, there is always an additional pressure of how the clients ethnic background will impact upon the result. I certainly have these conversations with other counsel who I am good friends with and they also experience the additional pressure when they are representing an ethnic minority client. Then you have some of my clients who also feel that they were just not treated right and pose somewhat awkward questions to me afterwards about what happened. Is this really the type of society we want to live in?

If I am wrong in my analysis based on my significant experience, then as I point out later in this article, there will surely be no harm in compiling statistics about the difference in outcomes for ethnic minorities in cases where fundamental dishonesty is alleged.

There are three types of judges, from my experience:

(1) those who almost always make findings of FD 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 and often there appear “obstacles” which you would never seem to get in other cases . This leads to the probability of an Asian or Black client being declared fraudulent much higher than in other cases. This category appears 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 are in the small minority. 

I have read the entire “Guide to Judicial Conduct”, and I have to say that despite my reservations before I read it, I was pleasantly surprised to see it was written with a great deal of care, attention, and insight into matter around Equality Diversity and Inclusion. So, the ‘theory’ is right; however the problem is in the application of that ‘theory’. The reason why I had my reservations I think was because of my experiences in court. These experiences formed my view that the guidance in the “Guide to Judicial Conduct” must be defective. So it appears to me that what is happening is that many decision makers are not following their own guidance properly. 

As an example, the Equal Treatment Bench Book (February 2021) states that people from South Asia articulate differently as a natural cultural affection but I have rarely ever seen this taken into account. In Chapter 8, p513, The Equal Treatment Bench Book, states that “Certain South Asian witnesses when answering a question will adopt a ‘narrative style’, providing lengthy context first, before arriving at the end ‘point’.” In my experience, judges hardly ever follow these principles and get frustrated with clients who answer questions in this way. The Equal Treatment Bench Book is clear that those who originate from the South Asian subcontinent have more of a tendency to tell a story first and then answer the question, as opposed to the West where the answer is given first. This is particularly the case where the Asian person is born in the subcontinent, from my experience. The Equal Treatment Bench Book is very clear on this that the judges MUST take account of this. In my career, I have however seen scant, if any, regard paid to this issue. Indeed, I have seen the opposite happening usually. Too many times, I have seen very early on in a trial a judge saying to an Asian client repeatedly and impatiently: “Just answer the questions, just answer the questions!” Often this is stated to the Asian client in a demeaning and hostile way, as if they are a second-class citizen. The next step can be then directly addressing the client as being “evasive”. This then often leads on to the judge eventually accusing the witness of being dishonest.

So, I have seen a regular three stage pattern in s57 cases of

(1) first stage: asking an Asian witness to “just answer the question” repeatedly;

(2) second stage: pointing out that the Asian witness is being evasive and

(3) third stage: eventually stating that the Asian witness is not helping their case and is indeed just lying.

Of course, there are situations when witnesses are being dishonest. However, I have often been astonished at the judge making the accusation of lying and I have considered whether we are both listening to the same witness. There has to be something wrong in the system when a case is seen so differently by the judge and an experienced barrister.

These bad experiences I have had, has sometimes led me to being rather sensitive and being eager to a avoid any injustice against a client. For example I went before a judge with an Asian client who stated at one point in the evidence “with all due respect to Your Honour”. With all my negative experiences of how ethnic minority clients and witnesses are often treated in court, I leapt up rather instinctively and stated: “My client has stated this to you as a mark of complete respect and English is his second language and the context can therefore be different.” The judge appeared to be rather offended and stated to me after asking my client to leave the court room, that I should not make any assumptions, as their “spouse is Asian”! The judge then proceeded in almost rote fashion to start saying to
my client in evidence: “just answer the question, just answer the question!” and “this is affecting your credibility – not answering the question!” This was a case where the client was doing precisely what the Equal Treatment Bench Book anticipates, namely answering the question after telling a story. I could not see the judge showing any regard for the Equal Treatment Bench Book. This is a very recent example which happened over 3 years since first publication and 15 months after the Equal Treatment Bench Book was updated. The judge was appointed after those dates.

Rule 245 of the Equal Treatment Bench Book refers to “Showing awareness of fasting practice if the hearing takes place during Ramadan and making any necessary adjustments, e.g. offering additional breaks”. I have frankly never seen this awareness in my 24 years of practice. That’s a long time to wait!

So, the suggested solution has been to appoint more ethnic minority judges. I have seen this recommendation in the Lammy Review (September 2017). The idea that by appointing more ethnic minority judges, there is a more diverse bench and this 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; nor has it produced the results it should have with more ethnic minorities being appointed than before. The reasons why this does not work on its own are wide, complex and perhaps outsidethe scope of this article. With “institutional racism”, the problem becomes a lot more complex. 

The definition of institutional racism in the Lawrence report (paragraph 6.34) was: “the collective failure of an organisation to provide an appropriate and professional service to people because of their colour, culture or ethnic origin”. This form of racism is seen in “processes, attitudes and behaviour which amount to discrimination through unwitting prejudice, ignorance, thoughtlessness and racist stereotyping which disadvantages minority ethnic people”. 

So, it’s the “collective failure” of an organisation, which leads to discrimination. The appointment of the ‘right’ individuals on the basis that there are 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. Whilst it’s correctly argued that the bench is not diverse enough, it’s more diverse than, let’s say 20 years ago. By that token the situation should have improved considerably. From my experience it has certainly not improved in any meaningful way.

Advocates' responsibility

From my experience, when I have discussed the problem of the disproportionate effect of section 57 on ethnic minorities, I see a lot of blame being placed upon defendant insurers. There may be legitimate points in this regard. However, in my view the ultimate responsibility is with the court to ensure that justice for all is achieved. Whatever has happened before a court hearing, all parties expect the court to be the ultimate bastion of justice. If a defendant insurance company has made unfounded assumptions, the court should always be there as the ultimate “check and balance”and of ultimately achieving justice for all regardless of their background.

However, advocates can, and should, in my view 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 a clear latitude in how counsel proceed in the best interests of the client. 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? In this regard, it should be noted that poor points accepted by a court may of course lead to a successful appeal from the other side. From my experience of the Bar, I have known barristers to put forward unworthy points that sometimes succeed and are then withdrawn on appeal. I recall one such case whereby my opponent had put forward such submissions and succeeded. An appeal was promptly lodged in this case. The opposing counsel was de-instructed and the other side agreed with the appeal being allowed and had to pay substantial additional costs. In these cases,
solicitors have actually been critical of counsel for running points that had to be withdrawn on appeal. So, this may not be seen for entirely altruistic reasons, it may also be seen from a practical and costs perspective.

When it comes to discrimination, in my experience, insufficient consideration is given by advocates in relation to: their own conduct in advancing their client’s case; instructions given by a client to take a particular stance; and their responsibility to support the court in the administration of justice – perhaps even when this may involve calling attention to the judge's behaviour.

On this point, it is worth us looking at the relevant provisions from the BSB Handbook as well as the Equality Act 2010:

Core Duty 1: You must observe your duty to the court in the administration of justice.
Core Duty 8 - You must not discriminate unlawfully against any person.
Core Duty 3 – You must act with honesty, and with integrity.

In order to fully understand Core Duty 8, it is appropriate to consider the Equality Act 2010 which provides a number of relevant prohibitions on discrimination: 

• Section 13(1)- A person (A) discriminates against another (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others.
• Section 19(1) - A person (A) discriminates against another (B) if A applies to B a provision, criterion or practice which is discriminatory in relation to a relevant protected characteristic of B’s. 
  • o Of particular note here may be S19(2)(d) which states “For the purposes of subsection (1), a provision, criterion or practice is discriminatory in relation to a relevant protected characteristic of B’s if A cannot show it to be a proportionate means of achieving a legitimate aim. 
• Section 26(1)- A person (A) harasses another (B) if (a) A engages in unwanted conduct related to a relevant protected characteristic, and (b) the conduct has the purpose or effect of (i) violating B’s dignity, or (ii) creating an intimidating, hostile, degrading, humiliating or offensive environment for B. 
• Section 27(1) - A person (A) victimises another person (B) if A subjects B to a detriment because (a) B does a protected act, or (b) A believes that B has done, or may do, a protected act. 
  • In this regard, protected acts relate to proceedings, allegations, providing information or evidence or any other thing in connection with the Equality Act 2010.

As I see it, there is frequently a reluctance to draw attention to this type of behaviour even when it does reach the level of the regulatory and legislative provisions. At this point, it is worth a reminder of a barrister’s obligations under rule C66 of the BSB Code of Conduct which requires serious misconduct to be reported to the BSB. 

It may be that much of this reluctance is due to a culture of fear of speaking up and the consequences of doing so. 

Action to change 

My view of how people are and how they behave with different people is that it can largely be due to how they were raised in their own homes. So perhaps that’s why the Guide to Judicial Conduct and Equal Treatment Bench Book are not being properly applied – sadly this guidance is being overridden by societal pressures and baser instincts. This shows that even judges as the decision makers may largely be a reflection of society as a whole – just not in the positive way we would like! 

However the only way anarchy is prevented is when ultimately people can find justice somewhere. That is usually provided by the courts of any country. In my view the very essence of anyone appointed to the judiciary is that justice and fairness should be enshrined in that person’s character. I, however, also realise that pure idealism does not work. For example, everyone should be driving at a safe speed as this protects lives; however it is recognised that without there being “eyes” on the road with penalties (cameras, images, penalty points, court appearances) you cannot expect all people to drive safely. So there has to be oversight and deterrence to people from speeding. At the start of this article, I mentioned an incident when I was a child when me and my father were subject to racial abuse. Such open racism is much less common now. There are many reasons for this. However, one of the main reasons in my view is the introduction of racially aggravated offences (Crime and Disorder Act 1998) and the Crown Prosecution Service’s zero tolerance of such crimes. I discovered this when I prosecuted years ago. There was a real reluctance to dropping racially aggravated offences. There is less open racism in society. Cause and effect.

So I suggest a similar approach to the courts. I believe that court inspectors should visit the courts randomly and 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. This may 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 there being justice in the courts.

The success rates of surgeons is routinely monitored. Why is the justice system not monitored?

I also believe that consideration should be given to adopting a project such as the NHS “Freedom to Speak Up” process. HHJ Kaly Kaul QC is doing some excellent work around whistleblowing. 

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. Whilst 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.

© Mohammed Azeem Ali 2022 15/08/2022