Racial bias in the criminal justice system: Is the due process model of fairness a legal illusion

Abstract 

There are concerns regarding racial bias in the English and Welsh criminal justice system. The criminal justice system in England and Wales adopts principles of due process to uphold justice and fairness, but many suggest it instead adopts a crime control model where racial bias can ensue[1]. This potential racial discrimination within the criminal justice system could undermine human rights standards and ethics and perhaps legal reform to the criminal justice process is necessary and would be beneficial.

This article argues that despite the criminal justice system adopting due process principles to ensure justice and fairness, recent evidence has shown racial bias still exists in policing and the wider criminal justice system.

Introduction

The criminal justice system is central as a legal instrument to justice. The criminal justice system adopts due process principles to ensure fairness and equality. The principle asserts that no one should be convicted without an appropriate impartial process, the rights of citizens are valued, miscarriages of justice must be avoided, and it acknowledges scepticism surrounding human institutions in the criminal justice system, particularly around their motives and fallibility which potentially lead to racial bias and the disproportionate treatment of ethnic minorities[2]. The principle also allows legal advice and representation to be allocated, evidence and other material to be disclosed, the right to call upon witnesses and to present evidence, the right to cross examine witnesses and to challenge evidence, and the right to appeal[3].

However, there are instances where racial bias via ‘crime control’[4] models result in ethnic minorities, particularly Blacks and Asians, disproportionately targeted in policing and sentencing. The ‘crime control’ model, established by Herbert Packer in his work on both the ‘due process’ and ‘crime control’ model, advocates that the citizen’s interests are best protected through repressing crime and criminal offenders in all efficient means, with a focus on police investigation and the use of administrative principles rather than judicial principles[5]. It additionally enables investigatory powers to be maximised, need for participating suspects, investigative discretion to be maximised, solely minimal safeguards and reviews to be carried out to increase efficiency, and the maximising of admissible evidence[6].

This article will discuss that the criminal justice system in England and Wales, although at times adopting due process to promote fairness, equality and justice, also largely adopts crime control measures that often promote racial bias and the disproportionate targeting of ethnic minorities such as Blacks and Asians in contrast with their white counterparts. It will draw upon evidence from official government statistics, case law, legal reports and reviews. This article will also conclude that perhaps legal reforms are necessary within the criminal justice system to prevent racial profiling and will propose legal procedural reforms aiming to tackle racial bias, upholding due process. These include: increased police training, stop and search law reforms, ethnically diverse recruitment, consistent reviewing of current policies, and judicial review of stop and searches.

Due process rhetoric utilised by the criminal justice system 

PACE 1984

Within the criminal justice system, the Police and Criminal Evidence Act 1984 (PACE) maintain strict regulations for the use and legality of stop and searches and how officers must carry them out to prevent racial profiling targeted at Blacks and Asians. The Police and Criminal Evidence Act 1984 provide boundaries for utilising stop and searches, focusing on reasonable suspicion and when it is necessary. Section 1(3) of the Police and Criminal Evidence Act 1984 highlights that reasonable suspicion when stopping and searching persons and vehicles is necessary to confirm suspicions about individuals without exercising arrest powers, provided that the officer reasonably suspects stolen or prohibited articles, or other applicable items to be found. The reasonable suspicion test found in the Police and Criminal Evidence Act 1984 Code A 2.2 sets out that: (i) the officer must have formed a genuine suspicion in their own mind that they will find the object for which the search power being exercised allows them to search; and (ii) the suspicion that the object will be found must be reasonable in that there must be an objective basis for that suspicion based upon facts, information and/or intelligence which are relevant to the likelihood that the object in question will be found, so that a reasonable person would be entitled to reach the same conclusion based on the same facts and information and/or intelligence.

The act states that: (i) powers to stop and search must be used fairly, responsibly, with respect for people being searched and without unlawful discrimination. (ii) It must be brief and detention for the purposes of a search must take place at or near the location of the stop. (iii) The primary purpose of stop and search powers is to enable police officers to allay or confirm suspicions about individuals without exercising power of arrest.

Furthermore, section 149 of the Equality Act 2010 under the public sector equality duty states that police officers carry duties to have due regard to the need to eliminate unlawful discrimination, harassment and victimisation, to advance equality of opportunity between people who share a ‘relevant protected characteristic’ and people who do not share it, and to take steps to foster good relations between those persons.

Furthermore, officers must not search a person, even with his/her consent, where no power to search is applicable[7] and even where a person is prepared to submit to a search voluntarily, the person must not be searched unless the necessary legal power exists, and the search must be in accordance with the relevant power and the provision[8]. Article 14 of the European Convention on Human Rights 1950 further solidifies non-discrimination.

Evidence of racial bias in the criminal justice process and its evolution 

Stop and search 

However, despite PACE 1984, evidence via statistics, reviews, reports and case law suggest that racial bias still exists within the criminal justice system, despite aims to uphold due process. The 1999 MacPherson report revealed the ‘institutional racism’ and ‘cop’/’canteen’[9] culture evident in the wider Metropolitan Police Force while investigating the racially motivated murder of black teenager Stephen Lawrence[10]. The report, carried out by retired high court judge Sir William MacPherson, came about following the charges that were dropped against two youths in response to Stephen Lawrence’s racist murder[11]. The institutional racist attitudes found within the Metropolitan Police Force in the MacPherson report suggests that the criminal justice system often opts for a crime control model which raises concerns surrounding racial bias and disproportionate targeting of ethnic minorities, despite the importance of due process and measures such as the PACE 1984 in the criminal justice system. Furthermore, the earlier Brixton Riots in 1981, where rumours of police brutality against a black man resulted in rioting against police, revealed the tensions between the police force’s use of stop and search and black people who felt disproportionately targeted against[12]. These riots resulted in the Scarman report in 1981 which revealed that there were ‘racial disadvantages’ present but institutional racism was not present[13].

Furthermore, the 2017 Lammy Review, where MP David Lammy and then Prime Minister David Cameron carried out an independent review into the treatment of Black, Asian and Minority Ethnic (BAME) Individuals in the criminal justice system[14], sought to bring about legal reform to the criminal justice system.

However, despite the 1981 Scarman report, 1999 Macpherson report and 2017 Lammy Review, the murder of Chris Kaba in 2022, in which a police officer was cleared of murder and the shooting of unarmed Chris Kaba in the forehead at a vehicle stop and search[15], reveals prevalent concerns around potential racial profiling and use of police force against black people and other ethnic minorities, despite the importance of due process in the police force.

Moreover, 2022 official government statistics highlight that mixed race ethnicities faced stop and searches 1.7 times higher than those from white backgrounds, whilst data in earlier years highlighted that Black people were seven times more likely to be stop and searched in contrast to those from white backgrounds[16]. In addition, statistics from 2014 and 2015 highlight that black people are arrested at a rate three times higher than that white people[17]. These figures suggest that despite the importance of due process in the criminal justice system, crime control measures are often adopted by police institutions in stop and searches which raise concerns over racial bias and the disproportionate targeting of ethnic minorities in harsh contrast to those from white backgrounds. 

Case law

Case law and judicial commentary has also suggested that there is evidence of racial bias in the criminal justice system despite the principles of due process. The Court of Appeal’s decision in the case of Durrant v Chief Constable of Avon and Somerset [2017] EWCA Civ 1275, on appeal from the High Court of Justice and County Court, involved a failure by the judge to maintain the two-stage analysis under the Race Relations Act 1976, section 57ZA, which is now the 2000 revised Act. This failure was in regard to a case of discrimination, where the court held that Ms Durrant, a mixed-race woman, did not face racial discrimination after being arrested for allegedly assaulting a taxi driver[18]. This decision that she did not face racial discrimination from police officers in incidents in 2009 was appealed by Ms Durrant[19]. The incidents included: (i) Ms Durrant being rear handcuffed and placed in a separate compartment of the back of the police van in contrast with her white friend who was unhandcuffed and placed in the front of the van. (ii) Ms Durrant claimed to be thrown around by the van’s motion when moving while police officers mocked her situation. (iii) Ms Durrant had requested a police officer to use the toilet four times in which she eventually had to urinate in front of officers on the cell floor. (iiii) Ms Durrant was searched and placed in a holding cell while awaiting an interview whereas her white friend was not searched and was instead put with an officer in a consulting room with access to a babysitter and magazines. The judge in this case found there to be no evidence of racial bias[20].

Ms Durrant’s appeal in response to this decision was permitted by the Court of Appeal on the following grounds: (i) The judge failed to adopt the two-stage analysis test under section 57ZA of the Race Relations Act 1976. (ii) Ms Durrant’s request to use the toilet: the facts met the necessary criteria under the first-stage analysis test that it was ‘incumbent’[21] for the police officers to prove this treatment was not racially motivated. (iii) The police officers’ behaviour in the van: there was a failure to provide ‘fair’[22] notice of the relevant acts to the police officers or Judge, which led to this part of the appeal being dismissed and disregarding section 57ZA of the Race Relations Act 1976. (iiii) Ms Durrant’s treatment by officers at interview: The facts ‘did not give rise to a prima facie case of race discrimination which called for explanation by the police’[23].

Further commentary was provided by Lord Justice Sales, Lord Justice Moylan and Lady Justice Black, all whom stated they would allow this appeal ‘in respect of one of the three additional allegations of race discrimination and substitute a finding that there was an act of race discrimination, namely as regards the delay in providing the appellant with access to a toilet on 13 June 2009. The substituted finding is that this was the result of unconscious racial stereotyping by the police officer concerned’[24].

Furthermore, in response to the alleged acts of racial discrimination the Judge confirmed that: (i) the targeted arrest of Ms Durrant in contrast with her white friend and (ii) rear handcuffing of Ms Durrant with PC Brett and PS Thorpe’s actions stemming from ‘unconscious racial stereotyping’[25] rather than conscious racial discrimination. Lord Justice Sales further commented that this stemmed from ‘an unthinking expectation’ that Ms Durrant had ‘most likely’ committed the assault against the taxi driver and ‘might cause trouble’[26]. Thus, case law suggests that racial profiling and bias does exist in the criminal justice system, yet it is unclear whether this bias is conscious or unconscious.

The more recent death of George Floyd in 2020, despite being a U.S case, further suggest that the criminal justice system often racially discriminate ethnic minorities[27] and adopt crime control models that perhaps deviate from due process principles and proportionality in policing.

Implications 

It is also crucial to consider potential wider societal implications such racial bias can cause. Symbolic Interactionists argue that the racial labelling[28] of ethnic minorities as offenders can be internalised, establishing a self-fulfilling prophecy and ‘moral panic’[29] leading to further crime and tension between the criminal justice system and ethnic minorities. These moral panics were evident in the ‘Mods’ and ‘Rockers’ internalised labels during the 1960s within the media[30].

Discussion

This article sought to discuss and examine whether the criminal justice system consistently upholds principles of due process or whether there is in fact evidence of racial bias, discrimination and disproportionate targeting of ethnic minorities in contrast with their white counterparts. This was particularly examined when looking at stop and searches utilised by police institutions. This article also examined Herbert Packer’s idea of the crime control model potentially adopted by the criminal justice system in which racial bias can take place and thus undermine due process. Therefore, perhaps legal and procedural reform to the criminal justice system would be beneficial through increased police training, stop and search law reforms, ethnically diverse recruitment, consistent reviewing of current policies, and potentially the judicial review and intervention of stop and search cases.

Conclusion 

The English and Welsh criminal justice system and the due process principles it upholds could be deemed to be a legal illusion that instead often allows racial bias, disproportionate targeting of ethnic minorities and perhaps institutional racism, when examining evidence from official government statistics, reports, reviews, case law and academic work. This is particularly relevant when analysing the police institution’s use of stop and searches to control crime. However, racial disparities among sentencing and other aspects of the criminal justice system are also useful to examine in the context of potential racial discrimination in the wider justice system. The criminal justice system is central to England and Wales and a crucial legal tool to promote justice and thus should be protected and consistently reviewed to best protect the rights of criminal offenders. Further legal and procedural reform which is discussed above is thus necessary and beneficial to the wider criminal justice system.

 Reference(S):

Becker H, Outsiders (Free Press 1963)

Ben Quinn, ‘Macpherson report: what was it and what impact did it have?’ The Guardian (London, 22 Feb 2019)

BBC, ‘Brixton Riots 1981: What happened 40 years ago in London?’ (12 April 2021) <https://www.bbc.co.uk/newsround/50035769 > accessed 5 July 2025

BBC, ‘Police Officer cleared of murdering Chris Kaba’ (21 October 2024) < https://www.bbc.co.uk/news/articles/c17lk592ygdo > accessed 5 July 2025

Chris Stein, ‘George Floyd Murder: Minneapolis police have pattern of aggression and discrimination, DoJ finds’ The Guardian (16 June 2023)

David Lammy, ‘The Lammy Review: An independent review into the treatment of, and outcomes for, Black, Asian and Minority Ethnic individuals in the criminal justice system’ (September 2017) < https://assets.publishing.service.gov.uk/media/5a82009040f0b62305b91f49/lammy-review-final-report.pdf > accessed 5 July 2025

Hall S, Mugging, the State and Law and Order (Macmillan 1978)

Ministry of Justice, ‘Statistics on Ethnicity and the Criminal Justice System 2022’ (GOV.UK, 19 March 2024) < https://www.gov.uk/government/statistics/ethnicity-and-the-criminal-justice-system-2022/statistics-on-ethnicity-and-the-criminal-justice-system-2022-html> accessed 5 July 2025

Packer H, The Limits of the Criminal Sanction (1968)

Reiner R, The Politics of the Police (OUP 2010) 129

MacPherson, The Stephen Lawrence Inquiry, Report of an inquiry by Sir William MacPherson of Cluny (London: Home Office, 1999)

Case law:

Durrant v Chief Constable of Avon and Somerset [2017] EWCA Civ 1275

Legislation:

Police and Criminal Evidence Act 1984 (PACE)

Police and Criminal Evidence Act 1984, s1(3)

Police and Criminal Evidence Act 1984 Code A 2.2 

Equality Act 2010 s 149

European Convention on Human Rights 1950 art 14

Race Relations Act 1976

Race Relations Act, s 57ZA

[1] Herbert Packer, The Limits of the Criminal Sanction (1968)

[2] Ibid

[3] Ibid

[4] Ibid

[5] Ibid

[6] Ibid

[7] PACE 1984

[8] PACE 1984

[9] Robert Reiner, The Politics of the Police (OUP 2010) 129

[10] W. MacPherson, The Stephen Lawrence Inquiry, Report of an inquiry by Sir William MacPherson of Cluny (London: Home Office, 1999)

[11] Ben Quinn, ‘Macpherson report: what was it and what impact did it have?’ The Guardian (London, 22 Feb 2019)

[12] BBC, ‘Brixton Riots 1981: What happened 40 years ago in London?’ (12 April 2021) <https://www.bbc.co.uk/newsround/50035769 > accessed 5 July 2025

[13] BBC, ‘Brixton Riots 1981: What happened 40 years ago in London?’ (12 April 2021) <https://www.bbc.co.uk/newsround/50035769 > accessed 5 July 2025

[14]David Lammy, ‘The Lammy Review: An independent review into the treatment of, and outcomes for, Black, Asian and Minority Ethnic individuals in the criminal justice system’ (September 2017) < https://assets.publishing.service.gov.uk/media/5a82009040f0b62305b91f49/lammy-review-final-report.pdf > accessed 5 July 2025

[15] BBC, ‘Police Officer cleared of murdering Chris Kaba’ (21 October 2024) < https://www.bbc.co.uk/news/articles/c17lk592ygdo > accessed 5 July 2025

[16] Ministry of Justice, ‘Statistics on Ethnicity and the Criminal Justice System 2022’ (GOV.UK, 19 March 2024) < https://www.gov.uk/government/statistics/ethnicity-and-the-criminal-justice-system-2022/statistics-on-ethnicity-and-the-criminal-justice-system-2022-html> accessed 5 July 2025

[17] Ministry of Justice, ‘Statistics on Ethnicity and the Criminal Justice System 2022’ (GOV.UK, 19 March 2024) < https://www.gov.uk/government/statistics/ethnicity-and-the-criminal-justice-system-2022/statistics-on-ethnicity-and-the-criminal-justice-system-2022-html> accessed 5 July 2025

[18] Durrant v Chief Constable of Avon and Somerset [2017] EWCA Civ 1275

[19] Ibid

[20] Ibid

[21] Ibid para 51

[22] Ibid para 44-46

[23] Ibid para 47

[24] Ibid para 57

[25] Durrant v Chief Constable of Avon and Somerset [2017] EWCA Civ 1275 149-150

[26] Durrant v Chief Constable of Avon and Somerset [2017] EWCA Civ 1275 para 16

[27] Chris Stein, ‘George Floyd Murder: Minneapolis police have pattern of aggression and discrimination, DoJ finds’ The Guardian (16 June 2023)

[28] Howard Becker, Outsiders (Free Press 1963)

[29] Stuart Hall, Mugging, the State and Law and Order (Macmillan 1978)

[30] Ibid