When the Legal System Perpetuates Discrimination Instead of Mitigating It – Discriminatory Judicial Misconduct and How Diversity May Directly Combat It

Published:

13 May 2026

A Judge’s Background

Firstly, it is important to outline the process for becoming a judge in the higher courts of England and Wales, including the Crown Court, County Court, High Court, and the Supreme Court. Judicial appointments (for most courts) are managed by the independent Judicial Appointments Commission (JAC). Candidates must be qualified legal professionals and typically require a minimum number of years of post-qualification experience, depending on the role. In practice, many successful applicants have considerably more experience, often 15 years or more.

Prospective judges may also take part in initiatives such as the Judicial Work Shadowing Scheme to gain insight into the role. Following appointment, judges receive further training to support them in delivering informed judgments. These requirements may help ensure that judges have developed the breadth of experience necessary to make balanced and well-reasoned decisions. All in all, judges are expected to have accumulated substantial experience in their field. It may be that, potentially, these procedural requirements are established to narrow the possibility of biased perspectives influencing judges in their decision-making role.

Establishing the Essentials: Judicial Misconduct and the Institutional Approach to Its Prevention

The ‘Judicial Conduct Investigations Office’ (JCIO) is responsible for investigating complaints of judicial misconduct in England and Wales. According to the JCIO, judicial misconduct generally refers to personal misbehaviour which falls below the standards expected of judicial office holders, not dissatisfaction with their legal decisions. The JCIO elaborates, stating that the types of personal misbehaviour amounting to misconduct against which they can carry out disciplinary actions include bullying, harassment, any kind of offensive language, including racist and sexist language, as well as aggression and rudeness. Following an investigation, the JCIO may recommend disciplinary action, with final decisions made by the Lord Chancellor and the Lord Chief Justice. The existence of such a public institution for monitoring judicial misconduct has been said to discourage judges from behaving in a way amounting to judicial misconduct.

Significant Instances of Discrimination

The existence of a procedural safeguard, such as the JCIO, which can investigate bullying, harassment, and the use of ‘racist, sexist, or otherwise offensive language’, has not necessarily prevented discrimination from judges toward legal actors.

One significant instance of a judge’s allegedly biased perspective, is that of Judge Philip Lancaster. One of the cases involved an employment tribunal, where Dr. Hinaa Toheed, a GP, brought a claim against her former business partner for maternity discrimination. According to an article by the BBC detailing the incidents, Dr. Toheed’s legal team was concerned with Judge Lancaster’s increasing aggression toward Dr. Toheed, and noted the number of times that Judge Lancaster shouted at Dr. Toheed. The total over three days was 16 instances of shouting, while Dr. Toheed was giving evidence.

Given his immediate, dismissive approach to Dr. Toheed’s claim, Dr. Toheed believed Judge Lancaster’s behaviour to amount to bullying, according to her account in the BBC article. A statement released by the JCIO confirmed that the complaint about Judge Lancaster involved comments about the judge’s bias.

In another claim, brought by another woman in a commercial law trial with Judge Lancaster presiding, said “I think it mattered hugely that I was a woman. For some reason, he [Judge Lancaster] had a real problem with the fact that I was a well-paid professional woman.”

The JCIO refused to investigate many of the complaints against Judge Lancaster for a number of reasons (e.g. that they took place during case management or had insufficient evidence). In response, the claimants, representing a group of at least 10 complainants, lodged a claim for judicial review against the JCIO for their failure to investigate. In a significant update on 12 May 2026, the JCIO has agreed to withdraw each of the previous decisions to not investigate, and will be reopening and reinvestigating each of the complaints against Judge Lancaster in full.

Baroness Harriet Harman KC, in her September 2025 “Independent review of bullying, harassment and sexual harassment at the Bar” report, documents instances of bullying behaviour from the judiciary, some with apparent bias. The review concludes that ‘The nature and scale of judicial bullying of barristers that has emerged in the course of the Review is disturbing and needs urgently to be addressed’.

Moreover, statistics strongly support the argument that the judiciary is often observed as discriminatory. According to a report from the University of Manchester, called ‘Racial Bias and the Bench’, 56% of 373 legal professionals reported that they had seen at least one judge behaving in a racially discriminatory way. In addition, 52% stated that they believed a judge had made a decision from a discriminatory perspective.

A deeply disappointing data point is that 95% of the respondents agreed that racial bias had some effect on the processes and/or outcomes in the legal system. In an article by The Guardian on the report, Professor Eithne Quinn, the lead academic author of the report, said that the report’s findings indicated “judges often play a role in fuelling and normalising the terrible disparities in our legal system”. All in all, the discussed cases and statistics indicate that there is a discrepancy between what is expected of judges’ conduct and the reality that they can and have discriminatory perspectives.

Looking Within – Where Might the Issue Come Up?

As outlined, judges are expected to have a substantial amount of work experience and training. Additionally, there exists a public institution dedicated to establishing consequences for judicial misconduct. Nevertheless, based on the evidence presented, this has not necessarily prevented behaviour amounting to judicial misconduct. Statements by judges irrelevantly referencing the identity (gender, race, religion, and other elements of identity) of legal characters continue to be made, and statistics on discrimination observed in courtrooms are persistently high. This may indicate that a different approach to our judiciary is required to overcome discriminatory perspectives on the bench.

One recurring issue that has been debated in the jurisdiction of England and Wales is that of the diversity of the judiciary. In England and Wales, black judges only make up 1.09% of the judiciary. Only 5% of judges in the UK are from Asian backgrounds. Female judges make up just 30% of High Court judges. The advantages of a more diverse judiciary have been contended by many legal actors. A report on Judicial Appointments by the House of Lords’ Constitution Committee, published in 2012, stated that, ‘diverse courts are better equipped to carry out the role of adjudicating than courts that are not diverse and…the public will have greater trust and confidence in a more diverse judiciary’. Therefore, by reflecting women and ethnically diverse individuals in the judiciary, judges’ attitudes or perspectives of minority groups would likely become more accurately represented. In this way, an inclusive approach to the judiciary could overcome discriminatory judicial attitudes.

A Global Picture

One of the consistently high-ranking countries for women’s equality is New Zealand, ranking 5^th on the Global Gender Gap Index introduced by the World Economic Forum in 2025. This may suggest that the factors in the Index, such as economic participation and political empowerment, are high-placing due to lower discrimination toward women. New Zealand’s judicial body indicates changes for a more inclusive judiciary, with three out of six Judges in the country’s Supreme Court being women. Notably, the Chief Justice of the Supreme Court is a female judge.

Similarly, the Supreme Court in Canada is composed of nine judges, with five judges being women. Canada is also one of the higher-ranked countries on the Global Gender Gap Index, in 33^rd place, and has consistently climbed the rankings over the past couple of years. Nevertheless, there seems to be a persistently deficient rate of ethnically diverse representation in judicial bodies globally.

A more diverse judiciary in England and Wales might be able to better reconcile discriminatory judicial misconduct, through an inclusive approach that challenges discriminatory perspectives.

Conclusion

It has been shown that discriminatory judicial misconduct has persisted despite institutional safeguards, indicating the need for a different approach to our modern judiciary. Despite the long journey to qualifying as a judge, this does not diminish the possibility of discrimination. Rather, a system that is reflective and inclusive of its population’s diversity may be required to overcome discriminatory judicial misconduct.

By Kinda Nashef, Student Blog Writer at QMLAC and LLB Law Student.

This blog is for information only and does not constitute legal advice on any matter. While we always aim to ensure that information is correct at the date of posting, the legal position can change, and the blogs will not ordinarily be updated to reflect any subsequent relevant changes. Anyone seeking legal advice on the subject matter should contact a specialist legal representative.