Judge Rebuked Over Subconscious Bias

In late February 2023, the Judicial Conduct Investigations Office handed down its decision in the form of what it termed formal advice for misconduct to a person operating in her capacity as a member of the judiciary. The order was made by the regulator as evidence seemed to suggest that she had put a line of questioning to a claimant in respect of their ethnic origin.   

What Happened In The Case?

This matter concerned a legal professional who had achieved the accolade of a member of the judiciary in England and Wales. Her career seems to have been progressing on an upward trajectory. However, this apparent career success appears to have deteriorated when she was presiding over one particular case and during the live court proceedings. The Judicial Conduct Investigations Office seems to have investigated her behavior. When the regulatory body did so, it found evidence appearing to suggest that the person operating in the judicial capacity had directly posed a question to a Claimant in open court regarding if she had been born within the jurisdiction of the United Kingdom. The claimant emanated from the jurisdiction of the United Kingdom and resided in the area. This seemingly controversial statement was not the end of the matter as further evidence came to light during the investigation which seemed to suggest that the judge had inquired with the person in the position of claimant regarding if they had studied, looked into and analysed the legal rules and obligations in the particular country in which she resided in. After these questions were posed to the person standing in the position of claimant appears to have taken offense to the comments and perceived that they had no other feasible opportunity left open to them but to submit a formal complaint to the judicial regulatory authorities.      

Be Sure Your Sins Will Find You Out…

When the grievance was submitted to it by the Claimant at the centre of the proceedings, the Judicial Conduct Investigations Office saw it fit to make inquiries into the behaviour of the judicial office holder during the proceedings. After the regulatory body did so, it put the allegations to the judge and to her credit she admitted that her comments regarding the ethnic origin of the claimant may have caused some offence to those involved and offered a sincere apology for the comments she had made to the Claimant whilst the live court proceedings were ongoing.      

What Did The Judicial Conduct Investigations Office Say? 

Despite the creditable regret shown by the judge the regulatory authorities were damning. The body commented that the remarks made by the judge were evidence what it interpreted to be biased statements made which were of a subconscious nature. The regulator was concerned because the question asked may have given the impression to the Claimant or to external independent third parties that the person bringing the grievance had not emanated from the jurisdiction of the United Kingdom. In an effort to demonstrate how seriously it was taking the matter by handing down its decision in the form of a notice of advice of a formal nature.     

Lessons Learned?

To mitigate the risk of this happening again, judicial office holders should review this judgment and consider the potential ramifications. They need to: 

• consider how their words may potentially be interpreted from an unconscious bias perspective 
• think carefully before they ask questions regarding ethnic origin and
• not ask questions regarding whether involved persons had looked-into their law in their perceived jurisdiction

If you have experienced something similar, or have an opposing viewpoint, please kindly leave a comment on the article or contact us.  
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