‘The Criminal Justice system is neither fair nor just.

Discrimination is a prevalent
feature.’ Discuss

Introduction
While fairness and justice are often conflated, they are definitively distinct but
related concepts. John Rawls argued in 1958 that “the fundamental idea in the
concept of justice is fairness,’ suggesting that fairness is a critical component of
justice, but not in its entirety.1 Fairness in the criminal justice system, arguably,
focuses on procedural integrity, often referred to as adherence to due process
and the principles of natural justice. These principles require that decisions are
made impartially and without bias, ensuring compliance with the rule of law.
Justice, by contrast, is more rooted in morality, it considers the ethical soundness
and moral rightness behind decisions. G.P Fletcher observed that a “fair trial
sometimes produces justice but not always” as fairness emphasizes the process
itself.2 For instance, a defendant being found guilty after fair trial is more likely to
be seen as just if the evidence suggests guilt – however, the justness of a trial is
more likely to be criticised even by the ‘winning’ side where the process is
regarded as unfair. Therefrom, it stands to reason that fairness within the
procedures and decision making is essential for justice to be realized; it lends
legitimacy to outcomes and reinforces the justness as a result. As such the
discussion will focus on how far the criminal justice system can be said to uphold
procedural fairness as a cornerstone of justice. Thus, the terms will be used
interchangeably.
Following from the above, discrimination is a direct barrier to procedural
fairness; it violates the principle of equality before the law. Within its ordinary
meaning it is to treat ‘one person or group less fairly or less well than other
people or groups.’3 Direct discrimination, under the Equality Act 2010, involves
treating an individual less favourably due to a protected characteristic such as
age, gender, or race.4 Conversely, indirect discrimination arises when a
seemingly neutral policy or practice disproportionately disadvantages a group
with such characteristics, violating principles of proportionality as required by
equality law.5 To put this into perspective black people, for example, are three
times more likely to experience insecure home status than white people in
England.6
Whilst discrimination encompasses many forms of prejudices, here we will focus
on gender and racial discrimination, its prevalence in the criminal justice system

1 John Rawls, 'Justice as Fairness' (1958) 67(2) The Philosophical Review.

2 George P Fletcher, 'Justice and Fairness in the Protection of Crime Victims' (2005) 9(3) Lewis &
Clark Law Review.
3 Collins English Dictionary, 'Discrimination'.
[Link] accessed 16.11.2024.
4 Equality Act 2010, s 4.
5 Jose Pina Sanchez, Sara Geneletti, Ana Veiga and others, 'Can Ethnic Disparities in Sentencing
Be Taken as Evidence of Judicial Discrimination?' (2024) 3(1) Journal of Legal Research
Methodology
6 Glen Bramley, Suzanne Fitzpatrick, Jill McIntyre & Sarah Johnsen, ‘Homelessness amongst Black
and minoritised ethnic communities in the UK: a statistical report on the state of the nation.’ (2022)
Heriot-Watt University, Edinburgh.
and how far it can be said to be a barrier to procedural fairness. This essay will
argue that although procedural fairness is foundational to justice, systemic
discrimination through both direct and indirect causal mechanisms like
unconscious bias and sentencing considerations reduce, but does not completely
negate, justice within the criminal justice system.

Gender Discrimination

Under the Equality Act 2010, gender is a protected characteristic as such

discrimination based on sex is prohibited. 7 Early studies on female criminality
often assumed that women were less likely to commit crimes. In many English
and Dutch studies, for example, women were characterised as vulnerable,
passive, dependent, timid, assisting and placed them in the victim role. 8 These
views reflect traditional female gender roles, which arguably continue to
significantly influence society today. In the sphere of the criminal justice system,
it is difficult to see how procedural fairness can exist where these attitudes
persist; these assumptions on the criminality of women, act in direct opposition
to impartiality and in favour of biases.
The so-called chivalry thesis appears to persist in today's more evolved criminal
justice system, where men consistently receive longer custodial sentences than
women. In 2021 a large number of men consistently received custodial
sentences, whereas a larger number of women received community sentences or
conditional discharge.9 In fact, Hopkins et al, in a report for the ministry of justice
(MOJ) found that there was an 88% increase in the odds of imprisonment for men
who had committed the same crime as women. 10 As this essay is concerned with
procedural fairness, it will consider the effect of the legal factors and criteria,
with little focus on the extra-legal factors resulting in sentencing outcomes.

A sentencing outcome is influenced by a myriad of factors but mitigating and

aggravating factors, as outlined in the sentencing council guidelines, are
arguably the strongest determinators. While judicial discretion allows for
individualized sentencing, the evidence suggests that women benefit from
greater leniency. Even with the variety of factors to take into consideration,
Steffensmeier et al, (1993) found that “adult female defendants are treated
more leniently than adult male defendants.” 11

7 n4.
8 Manon van der Heijden and Marion Pluskota (eds), ‘Women’s Criminality in Europe, 1600–1914’
(Cambridge University Press 2019).
9 Ministry of Justice, Women and the Criminal Justice System 2021 (24 November 2022)
[Link]
the-criminal-justice-system-2021#contents accessed 23.11.2024.
10 Kathryn Hopkins, Noah Uhrig and Matt Colahan, 'Associations Between Being Male or Female
and Being Sentenced to Prison in England and Wales in 2015' (2015) Ministry of Justice Analytical
Services.
11 Darryl Steffensmeier, John H. Kramer, and Cathy Streifel, 'Gender and Imprisonment Decisions'
(1993) 31 Law & Society Review.
Despite this, 2016 – 2019 Conservative government released their ‘Female
Offender Strategy’ 2018 which stated that “there [was] persuasive evidence that
short custodial sentences are less effective in reducing reoffending than
community orders.”12 The policy was put forward as a result of building
discourse following several different influential reports (e.g Corston Report
2006).13 For example, only 3% off the female prison population are assessed as
high risk of harming other people and women are more likely to suffer mental
health challenges and/or harm themselves in prison. 14 To combat this the Female
Offender Strategy Delivery Plan 2022-2025 submits the overarching aim to put in
place an “approach that takes into account the different needs and backgrounds
of women”.15 It reflects a shift in focus towards rehabilitative justice, prioritizing
community orders over custodial sentences in alignment with the principle of
proportionality. However, this targeted approach is concerning as there has been
no such strategy for men. Procedural fairness is heavily found on perception (as
outlined above) as such if only men remain subject to the same punitive justice
system there is a distinct lack of fairness that can be perceived by the public.
Rather than fairness and justice there is potential indirect discrimination against
male offenders in violation of the principle of equal treatment, which inevitably
erodes the legitimacy of the sentencing outcomes.

Regardless, since women are more likely to have dependents in their care or
have mental health issues prior to offending, it does stand as a matter of
procedural fairness that this should be considered when deliberating on
sentencing outcomes.16 Carly Lightowlers in 2019 argued that “When it comes to
sentencing, equality of outcome (e.g. sentence length and/or severity) on
average between men and women is not necessarily the correct goal to strive
for”.17 Procedural fairness as the core pillar of our justice system, however, would
demand that men are given the same opportunity for distributive justice. Within
this current uptick in policy aimed towards female offenders there is arguably a
level of discrimination towards men.

Studies have shown that the gender of a defendant influences the perception of
agency, risk, and aggression.18 Men are more likely to be seen as having full
agency in committing a crime as well as being seen as more dangerous in
comparison to their counterparts. Conversely, women are often seen as less
culpable and in need of ‘help.’19 Bindler and Hjalmarsson, in a 2017 study of the
12 Ministry of Justice, Female Offender Strategy (June 2018).
[Link] accessed 24.11.2024.
13 Jean Corston (2007) The Corston Report: The Need for a Distinct, Radically Different, Visibly-Led,
Strategic, Proportionate, Holistic, Woman-Centred, Integrated Approach. London: Home Office.
Available at: [Link]
accessed 24.11.2024.
14 Pina Sanchez, J and Harris, L, 'Sentencing Gender? Investigating the Presence of Gender
Disparities in Crown Court Sentences' (2020) Criminal Law Review.
15 Ministry of Justice, Female Offender Strategy Delivery Plan 2022–25 (January 2023)
[Link]
accessed 25.11.2024.
16 n14.
17 Carly Lightowlers, ‘Drunk and doubly deviant? The role of gender and intoxication in sentencing
assault offences’ (2018) British Journal of Criminology.
18 Leanne Macken and Michael O'Connell, '“Same Crime, Same Sentence?” Disparities in
Laypersons’ Sanctioning Preferences for Male and Female Offenders, and the Link to Respondent
Gender Bias' (2023) 10 Journal of Criminal Psychology.
19 n18.
gender gap in court over 200 years, found a persistent gender gap which they
attributed to paternalistic bias from male judges. 20 While Lightowlers argues that
equality of outcome is not always necessary, she advocates for distributive
justice specifically for women.21 This selective application of distributive justice
undermines the principle of equality before the law and is unjust as it fails to
cover male offenders in the same circumstances.

As already stated, women do in fact, statistically, face more challenges prior to

committing crime and as a result of imprisonment. 22 As outlined by the foreword
of the female offender strategy “vulnerability is not just a consequence of crime.
it can also drive offending behaviour ... there is a higher prevalence of need
amongst female offenders, such as mental health problems and self-harm.” 23 The
MOJ’s 2015 study found a disproportionate presence of factors like caring for
dependents and mental health problems in females, compared to male,
offenders.24 As such it is entirely possible that sentencing disparities have
persisted such as they have due to legitimate considerations. Pina Sanchez and
Harris (2020) argued that “differences in sentencing may be entirely legitimate if
they can be justified by legally relevant characteristics” like aggravating and
mitigating factors.25 According to the Sentencing Act 2020, sentencing aims to
punish, reduce crime, reparate, rehabilitate and protect the public. Any offender,
for example, who is seen as a greater risk to the public is highly likely to receive
a longer sentence. Further, according to the 2015 study carried out by the
National Offender Management Service, women are less likely to reoffend than
their male counterparts and women experience higher harm whilst in custody,
being twice as likely as men to report depression and 5 times more likely to self-
harm.26 Therefore, the sentencing disparity could be justified with these
considerations with particular focus on rehabilitation and public protection
factors as studies have found that previous convictions in men tend to be of a
more serious nature.27

What is clear here is that whilst sentencing is not gender neutral, it may not be
as a result of systemic discrimination. 28 It has to be acknowledged, however, that
while the unique needs of female offenders, such as mental health issues and
caregiving responsibilities, warrant a rehabilitative approach, it is crucial that
any such strategies do not unintentionally perpetuate inequality or gender-based
discrimination in sentencing. It has to be noted that Judicial discretion for
example could easily prove a conduit for discrimination to be perpetuated.
Judges are highly trained and experienced individuals, but this does not make

20 Arnaud Philippe, 'Gender Disparities in Sentencing' (2020) Economica 19 January 2020.

21 n17.
22 n14.
23 n12.
24 National Offender Management Service ‘Better Outcomes for Women Offenders.’ (2015)
Available at: [Link]
attachment_data/file/457922/Better_Outcomes_for_Women_Offenders_September_2015.pdf
accessed 26 November 2024.
25 n14.
26 n24.
27 n14.
28 n14.
them immune from bias. A good example of this is the ‘hungry judge effect’; “the
likelihood of a favourable ruling is greater at the very beginning of the workday
or after a food break than later in the sequence of cases.” 29 However, as
acknowledged by one critic, “If hunger had an effect on our mental resources of
this magnitude, our society would fall into minor chaos every day at 11:45. Or at
the very least, our society would have organized itself around this incredibly
strong effect of mental depletion.”30 Despite this, judges are human and It is
easy to see how unconscious bias could play part in judicial discretion here, as
judges could, as initially mentioned in the chivalry thesis, view women as victims
of sentencing regulations with less agency in their crimes rather than arbitrators
of their own destinies.

Practitioners can mitigate biases through structured interventions at key judicial stages,
supported by decision-making frameworks prioritizing objective criteria over subjective
perceptions. The Ministry of Justice should invest in tools like comparative case analysis
software and AI-assisted systems to ensure equitable sentencing, aligned with UK legal
standards and principles of procedural fairness. Such tools could provide anonymized data
on sentencing patterns, enabling judges to benchmark decisions and reduce unconscious
bias. While sentencing guidelines aim to ensure consistency, subjective factors such as
offender remorse or perceived vulnerability leave room for disparities. AI can address this by
reinforcing impartiality, provided it complements rather than replaces judicial discretion.
Judges should be actively involved in AI development to balance empathy and procedural
efficiency, ensuring the system reflects legal and ethical standards.

Estonia’s use of AI in administrative civil cases illustrates the promise and challenges of
integrating such technology.31 Critics warn of risks to procedural fairness, citing opaque
algorithms and reduced trust in AI outcomes.32 Transparency about AI functionality and clear
guidelines on its supportive role can safeguard against these issues. Furthermore, systems
must be trained on unbiased datasets, updated to address emerging concerns, and
designed to highlight rather than perpetuate bias. It must be noted that critics also
emphasise, “the importance of human dignity in decision-making, cautioning against the
‘procedural efficiency’ approach to justice that might be pursued in AI systems.”33A phased
implementation, starting with non-criminal or simpler cases, would allow the judiciary to
evaluate AI’s effectiveness while addressing concerns about fairness and human dignity.
Ultimately, AI’s role should enhance procedural fairness by identifying and mitigating
disparities, preserving the human element central to justice.

To ensure that the criminal justice system is procedurally fair, there needs to be a strategy
similar to that of the female offender strategy 2018 that gives men the same opportunity of
distributive justice. For low-risk male offenders, for instance, expanding alternatives to
custodial sentences, such as community orders or restorative justice programs, could reduce

29 Facing a Judge? Study Says Go Early or After Lunch' ([Link], 11 April 2011)
[Link]
%20likelihood,the%20National%20Academy%20of%20Sciences. Accessed 27.11.2024.
30 Daniel Lakens, 'Impossibly Hungry Judges' (Daniel Lakens Blog, 3 July 2017)
[Link] accessed 27.11.2024.
31 Marta Gamito Cantero and Giulia Gentile, ‘Algorithms, Rule of Law, and the Future of Justice:
Implications in the Estonian Justice System’ (2023) European University Institute,
[Link]
language-en accessed 28.11.2024.
32 n31.
33 n31.
incarceration rates and promote rehabilitation. There should also be targeted support
provided for male offenders facing socio-economic disadvantages, mental health challenges,
or family responsibilities, ensuring these factors are adequately considered during
sentencing. Further, programs after incarceration such as vocational training, mental health
interventions, and social reintegration and employment initiatives would go a long way
towards reducing the reoffending rate amongst men. Although some of these programs and
suggestions are already in place they remain unfunded and poorly implemented. For
example, prison education programmes designed to prepare inmates for employment post-
release. A 2022 report by HM Inspectorate of Prisons highlighted that some inmates only
receive a few hours of education or training weekly, with limited practical skills being
taught.34 Implementing a comprehensive Male Offender Strategy will inevitably raise
questions about financial feasibility. Expanding community-based programs, providing
targeted support, and developing rehabilitative initiatives require significant upfront
investment. However, this should be weighed against the long-term cost savings achieved
by reducing incarceration rates and recidivism. Studies have shown that rehabilitative
approaches, such as restorative justice and vocational training, are often more cost-effective
than prolonged custodial sentences.

Procedural fairness demands that all offenders—regardless of gender—are

treated with impartiality and provided equitable opportunities for distributive
justice. The disparity in sentencing outcomes, though partly rooted in legitimate
considerations such as mental health and caregiving responsibilities, risks
undermining public perceptions of fairness and equality before the law. There is
a clear need here for systemic reforms that address these disparities holistically,
ensuring that sentencing policies and practices promote both justice and
legitimacy without bias. The use of AI could improve procedural fairness by ensuring
that decisions are not only consistent and unbiased but also perceived as transparent and
legitimate. AI-assisted tools could reinforce these principles by standardizing decision-
making processes while retaining judicial oversight.

Racial Discrimination

Another protected characteristic that continues to cause much social turbulence is race.
Whilst society has progressed in some areas beyond its past racial barriers, the criminal
justice system appears to lag behind.35 As highlighted in the Lammy Review 2017, “Those
who are charged, tried, and punished are still disproportionately likely to come from minority
communities. Despite making up just 14% of the population, [Black, Asian and Minority
Ethnic groups (BAME)] make up 25% of prisoners”.36 These findings underscore persistent
racial disparities and have prompted broader discussions on reform.

34 HM Inspectorate of Prisons, Annual Report 2021-22 (2022).

35 David Lammy, ‘The Lammy Review: An independent review into the treatment of, and out comes for, Black,
Asian and Minority Ethnic individuals in the Criminal Justice system.’ (2017) Her Majesty’s Government.,
Available at: [Link]
643001/[Link] Accessed 29.11.2024.
36 n35.
After the mishandled murder investigation of Stephen Lawrence in 1993. The Stephen
Lawrence Inquiry (1999) declared the Metropolitan Police Service institutionally racist a
pivotal moment in the UK’s criminal justice history, leading to a number of significant policy
and systematic changes.37 For instance, amendments to the Race Relations Act 2000, made
it unlawful for public authorities including the police to engage in racism.38 Additionally, the
establishment of the Independent Office for Police Conduct that investigates allegations of
police misconduct. Despite progress, it cannot be said that racial discrimination no longer
persists within the criminal justice system. Racial discrimination remains a significant barrier
to procedural fairness in the criminal justice system, as evidenced by critiques from ethnic
minority rights groups and movements such as Black Lives Matter, which highlight how
systemic bias compromises procedural fairness and legitimacy of the judicial process as a
whole. The persistence of racial discrimination within the criminal justice system
directly undermines the principles of procedural fairness, as it results in unequal
treatment and a lack of impartiality at various stages of the process.

I. Stop-and-Search
As we have previously discussed there are two forms of discrimination; indirect
discrimination and direct discrimination. Although this view is highly contentious, stop-and-
search powers in the CJS have been widely criticized as a form of direct discrimination.
Stop-and-search powers found their roots in 1824, where the Vagrancy Act 1824 gave the
police the power to stop and search any individual who they considered suspicious.39 In the
early 1980’s these powers were exempted from anti-discrimination legislation, allowing for
the disproportionate use of stop-and-search powers and the criminalisation of black people;
this led to several uprisings across the country.40 Today, it is legislation like Section 1 of the
Police Crime and Evidence Act (PACE) 198441, Section 60 of the Criminal Justice and Public
Order Act (CJPOA) 1994 42and Section 342E of the Police, Crime, Sentencing and Courts Act
(PCSC) 2022,43 amongst others, that gives the police the power to stop and search
individuals. Whilst some legislations require grounds for stop search like PACE 1984, others
like CJPOA do not.

In the years following the Stephen Lawrence Inquiry, studies have consistently shown that
stop-and-search practices disproportionately target BAME communities. This practice, often
conducted without adequate grounds, exacerbates perceptions of injustice and procedural
unfairness by relying on racial profiling rather than reasonable suspicion. Black people, for
example, are 40 times more likely to be searched without grounds under section 60 CJPOA
1994. Additionally, not all stop-and-searches lead to arrests, let alone convictions. For
example, only 5% of Section 60 CJPOA stops result in arrests. In fact, of all stop-and-
37 Sir William Macpherson for HM Government, The Stephen Lawrence Inquiry: Report of an Inquiry
(Cm 4262, February 1999) [Link]
accessed 8.12.2024.
38 Race Relations (Amendment) Act 2000, s 19B.
39 The Vagrancy Act 1824.
40 'Brixton Riots 1981: What Happened 40 Years Ago in London?' (BBC News, 12 April 2021)
[Link] accessed 28.11.2024.
41 Police Crime and Evidence Act 1984, s1.
42 Criminal Justice and Public Order Act 1994 , s60.
43 Police, Crime, Sentencing and Courts Act 2022, s342e.
searches completed on BAME and white (excluding mixed or other) ethnic groups in
England and Wales, over 70% result in no further action. This effectively underlines stop and
search as not only not fit for purpose and ineffective but also as an unnecessary breach of
Article 8 and Article 14 of the Human Rights Act 1998.44 In R (Gillan) v Commissioner of
Police of the Metropolis (2006), the courts considered the application of stop-and-search
powers and highlighted that their arbitrary use risks violating human rights protections.45 The
persistent racial disparities in stop-and-search practices further underline systemic failure to
meet this standard. The historical and ongoing misuse of stop-and-search powers has not
only eroded trust between BAME communities and the police but has also fundamentally
undermined procedural fairness, as it fosters a perception that the justice system operates
with bias and unequal treatment.

Nevertheless, it could be argued that where stop and search is used correctly with proper
safeguards in place, it is likely to increase effectiveness, procedural fairness and in turn,
public trust in the legitimacy of the criminal justice system. In Roberts v Commissioner of
Police of the Metropolis (2015), the court addressed the lawfulness of stop-and-search under
Section 60 of the Criminal Justice and Public Order Act.46 While the practice was upheld, the
judgment emphasized that the safeguards in place, such as authorization by a senior officer
and a limited time frame, are essential to prevent abuse.47 In the Lammy review the
Northamptonshire police were highlighted for their handling of stop-and-searches following
past criticism of its use of the powers.48 The Reasonable Grounds Panel scrutinises the
grounds used for every stop and search. Where grounds used is found to be unreasonable
or does not meet the force’s standards: in the first instance, the officer is offered training
and reminded of guidance, in the second instance the officer and their supervisor is given
one to one training and, in the third instance the officer and supervisor is suspended from
conducting/supervising searches until a personal development plan is completed.49

However, the Northamptonshire police reported that of the “2,129 stop and searches
conducted between May 2024 and October 2024, 443 (20.81%) had a police outcome, and
1,686 (79.19%) had no further action taken.”50 The fact that these statistics align with the
outcome for all of England and Wales in 2023, mentioned above, suggests that stop and
search powers are ineffective. Whilst it could be argued that some level of inefficiency is
expected in law enforcement. The principle of proportionality under human rights law
requires that any interference with rights, such as Article 8 (right to privacy), must be justified
as necessary to achieve a legitimate aim and that the means employed are the least
intrusive way to achieve that aim.51 In the case of stop-and-search, the disproportionate
targeting of BAME communities undermines this test. Further, Under Article 14, the

44 Human Rights Act 1998.

45 R (Gillan) v Commissioner of Police of the Metropolis [2006] UKHL 12; [2006] 2 AC 307.

46 R (on the application of Roberts) v Commissioner of Police of the Metropolis and another [2015]
UKSC 79.
47 n46.
48 n35.
49 n35.
50 'Stop and Search in Northamptonshire Police: May 2024 – October 2024' ([Link])
[Link] accessed
28.11.2024.
51 n44.
discriminatory application of stop-and-search powers cannot be deemed "necessary" when
safeguards like those in Northamptonshire fail to mitigate disproportionate outcomes.52
Despite the safeguards black people specifically in Northamptonshire remain over -
represented in stop-and-search figures in numbers highly disproportionate to their population
size whereas white people are heavily under - represented.53 Arguably this underlines stop-
and-searches as a direct obstacle to procedural fairness; it cannot be achieved, regardless
of safeguards, where the underlying practice continues to disproportionately impact certain
communities. It is questionable whether the measure effectively prevents crime or whether
less discriminatory alternatives, such as targeted intelligence-based policing, could achieve
the same goals.

II. Pre-trial detention & Sentencing

Under section 4 of The Bail Act 1976, the court must presume that a defendant is entitled to
bail, bail can only be refused where an objection is properly made out.54 There are several
grounds for objection and the prosecution can use as many of the objections that apply to
the case at hand, only one needs to succeed in order for bail to be granted.

Indirect discrimination is a nuanced and complex foe that arguably rears its head largely in
the pre-trial stages of the criminal justice system. In the case of pretrial detention, evidence
has been found that defendants who are remanded to custody are more likely to be given a
custodial sentence. Kitty Lymperopoulou, found that, “defendants with previous convictions
are twice as likely than defendants without convictions to be sentenced to custody while
defendants who were remanded in custody at committal to Crown Court were 7.5 times
more likely to be sentenced to custody.”55 Considering that ethnic minorities were between
4% and 28% more likely to be remanded in custody this statistic is doubly concerning.56
Equality before the law should mean that prior to sentencing, everyone should have the
same opportunity to prepare their defence, access legal resources, and be judged impartially
without bias or prejudice stemming from pre-trial conditions such as detention. What is,
therefore, proved here is that there is a lack of procedural fairness where defendants are
held in remand.

BAME individuals are overrepresented in the criminal justice system due to factors such as
socioeconomic disparities, concentrated poverty, and poor community organization.57 As a
result of these disadvantages, they are more likely to be refused bail due to challenges like
inability to afford bail and failure to show up in court. Therefore, these are covert systemic
barriers that are perpetuating inequality throughout the criminal justice process; indirect

52 n44.
53 n50.
54 Bail Act 1976, s4.
55 Kitty Lymperopoulou, 'Ethnic Inequalities in Sentencing: Evidence from the Crown Court in
England and Wales' (2024) 64 British Journal of Criminology 1189 [Link]
accessed 8.12.2024.
56 n55.
57 n55.
discrimination at work.58 Lymperopoulou argued that these social disadvantages, combined
with factors such as poorer plea bargaining, higher rates of not guilty pleas, and pre-trial
detention, result in harsher sentencing outcomes for ethnic minorities, suggesting a
'cumulative disadvantage.59

Procedural fairness is undermined where these barriers are not acknowledged. Individuals
on remand face additional barriers, such as restricted access to legal advice and resources,
which diminishes their ability to prepare a robust defence. Moreover, the correlation between
remand and harsher sentencing outcomes creates a feedback loop of systemic inequality.
The Lammy review found that, “Ethnic groups with higher unemployment rates also have
higher reoffending rates. For example, two years after a caution, conviction, or release from
custody, 28% of Asians were unemployed, compared with 40% unemployment among Black
ex-offenders. Black offenders have the highest reoffending rates and Asians the lowest." 60 It
should be no surprise that these individuals turn back to crime because there are not enough
support services to remove them from the cycle. If the criminal justice system is perpetuating
the cycle, how can they then penalise these individuals for arriving right back where they
started? Not only that but the wider social implication is that overrepresentation of BAME
individuals in prisons and remand reinforces implicit biases among police, prosecutors, and
judges, perpetuating racial profiling and harsher treatment at earlier stages of the justice
system. The patterns fuel public and institutional narratives that criminalize BAME
communities, justifying harsher policies and policing practices. A Blind application process,
where demographic identifiers are removed from bail applications, could make a significant
difference in reducing the influence of these biases. Additionally, independent reviews of bail
decisions can identify patterns of disparity and prompt necessary corrective [Link]
independent reviews would also help to develop a more functional bail criteria that doesn’t
put offenders at a disadvantage due socioeconomic status.

General Recommendations

Addressing discrimination within the criminal justice system requires a comprehensive

approach that combines legislative reform, practitioner training, and systemic oversight.
Practitioners like prosecutors, and judges are uniquely positioned to mitigate systemic
biases, provided they are equipped with the appropriate tools and frameworks. These
reforms are essential to uphold procedural fairness, which requires decisions to be
transparent, consistent, and free from bias.

I. Transparency

Transparency is a cornerstone of procedural fairness, as it ensures accountability and

fosters trust in the justice system. Reports like the Lammy Review have initiated this work,
but there remains a widespread need for greater transparency at all stages of the judicial
process. As Noted in the Lammy review, “all the datasets held centrally on ethnicity and the

58 n55.
59 n55.
60 n35.
CJS should be published, whilst protecting the privacy of individuals.”61 Comprehensive data
collection and publication would enable independent parties such as academics, journalists,
and campaigners to analyse trends, identify disparities, and propose evidence-based
reforms.

Before there can be true reform an accurate picture of the criminal justice system is needed
to uncover patterns of bias, propose evidence-based reforms, and hold the justice system to
account to drive real change. This level of transparency would foster more trust in the justice
system by demonstrating a commitment to fairness and accountability. While some datasets
are publicly accessible, significant gaps remain that hinder the development of meaningful
reforms. However, significant gaps remain. For example, Magistrates’ Courts do not
systematically record critical information, such as whether defendants plead ‘guilty’ or ‘not
guilty,’ or whether defendants have legal representation.62 This lack of transparency hinders
the ability to uncover patterns of bias and address indirect discrimination, particularly for
defendants facing systemic barriers due to socioeconomic status. As the Lammy Review
notes, factors such as lack of representation can contribute to racial disparities. Addressing
these gaps is crucial to understanding and mitigating inequities at every stage of the justice
process.

II. Consistency
Artificial intelligence, as discussed above, can be utilised here by generating reports on
sentencing trends, highlighting outliers, and providing evidence-based insights to inform
broader judicial reforms. These tools could support practitioners by flagging disparities and
offering comparative analyses of similar cases, enhancing accountability while preserving
judicial discretion. To maintain procedural fairness, it is essential to ensure that AI systems
are developed transparently and align with legal and ethical standards.

III. Reducing Bias

Legal professionals and institutions must also work to address the unconscious biases that
influence decision-making processes at every stage of the justice system. Comprehensive,
immersive training programs that incorporate real-life scenarios and data on systemic
disparities could be instrumental. For example, police officers could participate in workshops
simulating stop-and-search scenarios to recognize and mitigate patterns of racial profiling.
Similarly, prosecutors and judges could examine case studies where implicit biases
impacted decisions, followed by discussions on how to apply unbiased principles in practice.

Conclusion

Significant procedural unfairness persists within the criminal justice system, especially in the
form of racial discrimination that undermines its legitimacy. While the principles of fairness
and justice are foundational to its legitimacy, systemic biases and unequal treatment of
offenders undermine these ideals. Gender disparities and new policies emphasising the
needs of only females in sentencing, although largely valid, are at risk of perpetuating
discrimination through judicial discretion. Similarly, racial discrimination, particularly in the

61 n35.
62 n35
use of stop-and-search practices and pre-trial detention, continues to erode trust, uphold
discriminative narratives and keep offenders stuck in a cycle of reoffending.

Reforms are essential to address these inequities. Transparency, such as comprehensive

data reporting, and the use of AI tools to support consistent and impartial decision-making
are promising solutions. However, these reforms must be implemented cautiously, with
strong ethical safeguards and robust engagement with practitioners to ensure acceptance
and efficacy. Ultimately, while the criminal justice system is neither wholly fair nor just,
targeted reforms can significantly mitigate discrimination and uphold the principles of
equality and procedural fairness. Achieving this balance is not only a legal obligation but a
moral imperative to ensure justice is accessible

Bibliography

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1. Heijden M van der and Pluskota M (eds), Women’s Criminality in Europe,

1600–1914 (Cambridge University Press 2019).

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1. Fletcher GP, ‘Justice and Fairness in the Protection of Crime Victims’ (2005)
9(3) Lewis & Clark Law Review 547.
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Intoxication in Sentencing Assault Offences’ (2018) British Journal of
Criminology.
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Crown Court in England and Wales’ (2024) 64 British Journal of Criminology
1189 [Link] accessed 8 December 2024.
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Sentencing Be Taken as Evidence of Judicial Discrimination?’ (2024) 3(1)
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Approach (Home Office 2007)
[Link]
[Link] accessed 24 November 2024.
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(Ministry of Justice Analytical Services, 2015).
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Case Law

1. R (Gillan) v Commissioner of Police of the Metropolis [2006] UKHL 12; [2006]

2 AC 307.
2. R (on the application of Roberts) v Commissioner of Police of the Metropolis
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Legislation

1. Bail Act 1976.

2. Criminal Justice and Public Order Act 1994, s 60.
3. Equality Act 2010, s 4.
4. Human Rights Act 1998.
5. Police Crime and Evidence Act 1984, s 1.
6. Police, Crime, Sentencing and Courts Act 2022, s 342E.
7. Race Relations (Amendment) Act 2000, s 19B.
8. Sentencing Act 2020.
9. The Vagrancy Act 1824.

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accessed 28 November 2024.
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