Fairness is a fundamental tenet of Maltese law. Yet, despite substantial work to address issues of fairness, public scepticism that we receive consistently fair and equal treatment in Maltese courts remains widespread. Why?
There is no greater mistake than thinking that there is such a thing as absolute and foolproof fairness, made up of independence and impartiality, within any judiciary. Our law lists those circumstances when a judge or magistrate should not preside over a civil or criminal case, all instances of presumed bias, partiality, or lack of independence. Yet, any other reason not listed in the law is frequently availed of by our judiciary in order to thwart the essential 'ratio legis' of that law: fairness and impartiality.
Judicial bias is quite real. Although judges are supposed to be impartial, as they promise in their oath, they are as human as each and every one of us and do harbour implicit biases influenced by their identity and experiences. Trial court judges may unwittingly rely extensively on intuition, more than deliberative judging, in deciding matters before the bench. This provides more opportunities or, rather, creates more risks for the judges to apply their implicit biases to the matters at hand.
A properly functioning brain recognises certain patterns and even makes generalisations about what it observes. But these same brain processes can also lead to overgeneralisation and discrimination via "implicit bias," which describes a prejudice, stereotype or presumption made about practically any subject under the sun pre-reflexively or without conscious knowledge of that bias.
The influence of unconscious bias on judges is subtle. Judges harbour many of the same implicit associations as most adults. What is more important for judges, however, is whether this bias affects their decision-making. Judges take an oath to be impartial and follow a code of ethics that demands that nothing play a role in their decisions. But do commitments like these really motivate judges to avoid relying on implicit biases?
Judges are typically successful mid-career professionals who have been selected for a prestigious position, and they also take seriously their commitment to fairness and impartiality. Yet judges have a difficult time accepting their weaknesses, especially when it comes to implicit bias. Acknowledging the imperfections of the judiciary can be painful for judges and can give rise to public criticism and even cynicism. But hiding the flaws of courts and judges is not the way to minimise or eliminate them.
Judges can and should do a great deal. Judges have a responsibility to educate themselves about anything that might contribute to unfair or biassed outcomes in their cases and to take action to ensure that their decisions are unbiased and just. What can judges do to avoid implicit bias?
To begin with, we need to make sure that our expectations are realistic. Implicit bias is the product of deep acculturation. It accumulates over the course of a lifetime, beginning as early as age three. It cannot be fixed by an afternoon of training. Yet there are two easy steps that are a good beginning.
The first is to reduce the role of stereotypes and other shortcuts in the decision-making of the judiciary. Reliance on intuition and "going with your gut" can be useful, but only if the technique matches the task. In general, the nature of judging dictates that judges are better off proceeding deliberatively, keeping the facts and the law, rather than impressions and feelings, in the driver's seat whenever possible. Judges who are forced to rule quickly or feel rushed are more likely to make mistakes, rely on potentially misleading shortcuts and stereotypes, or rely on the suggestions of others.
The second step consists of measures designed to combat implicit biases directly rather than indirectly. This can enhance awareness, heighten motivation, and suggest practical strategies for minimising it. Awareness alone is not a complete solution, but it helps. Every judge has days when he or she is tired, frustrated by the shenanigans of lawyers, stressed by overwork, or pressured by the need to rule promptly. That is the time for judges to remember judicial ideals and to redouble their commitment to them.
The term 'unconscious bias' represents the accumulated learned stereotypes that are unintentional, automatic, and heavily influencing one's thinking patterns and may lead to judges and magistrates impacting their judgements and behaviour. These biases are deemed conscious when they become aware of their influences.
The determinants of a judge's bias are based on deeply ingrained values and beliefs from past experiences and exposures that can be hard to manage. It is also known as implicit bias, and it causes dominating suggestions in conscious thought. These biases relate to key values and beliefs that are generally developed through cultural norms, religious practices, influences from key people such as parents, teachers, and, often more importantly, friends and peers, or media-based influences.
In the case of a court or any other formal procedure in which the outcome is a binding decision or award, a judge's or the presiding official's biases can heavily influence their decisions and the level of harshness of their sentencing. In the appeals process in a court system, the inclusion of an odd number of judges aims to balance any bias from any one individual.
The fact remains, however, that much of the disproportionality in our justice system is attributable to unconscious stereotypes that affect decision-making.
Dr Mark Said is a lawyer