A lot more progress to be made

It is an old adage at the Criminal Bar that whenever you walk into a courtroom and it is populated by female juniors and/or silks, the case must concern an allegation of a sexual nature. It is often the case that female counsel are instructed on cases involving allegations of sexual offending as their approach is considered ‘softer’ or more ‘empathetic’ to both vulnerable defendants and witnesses.

As co-authors of this article, we are far from the exception. We have both experienced the call from someone in our respective clerks’ rooms or instructing solicitors requesting our assistance with a sex case as ‘the client thinks it looks better to have female counsel’.

We also have individual experience of being one of the few (if not only) female counsel in a case. We have walked into packed courtrooms to start multi-handed allegations of serious violence or fraud, only to be met with the dawning reality that we are the only one of a different gender. This can only add to the misconception that a gendered approach to instruction on certain cases is appropriate – sex for the girls and everything else for the boys.

It is still a rare beast to see a case entirely made up of female juniors and silks. For the first time in our joint experience, we found ourselves independently instructed in a case at the Central Criminal Court where all the leading advocates were female. At one stage it was almost an entirely female case, when initially the prosecution were represented by leading and junior female counsel. Alexandra Healy KC led Alisdair Smith for the Crown. Gudrun Young KC led Rebecca Erkan-Bax for the first defendant. Laurie-Anne Power KC led Alex di Francesco for the second defendant. Clea Topolski, for the third defendant, appeared as sole counsel and Carolina Guiloff also appeared alone for the fourth and final defendant.

The temperature in the room was changed. So rare is it to see all-female counsel (particularly in a case involving gangland shootings) that we whispered conspiratorially to each other about this brave new world we found ourselves in. Gone were the days of feeling outnumbered or solitary in a case dominated by male advocates.

But when the female leading cast became clear, and one of our number suggested writing about it, some of us were unsure. Was there a need for such an article? Surely the fact that we were all in the case proved that ‘we had arrived’ – that this was not newsworthy?

It’s true that we have come a long way since 1922 when Dr Ivy Williams was the first woman to be called to the Bar (graduating with a first, no less). Up until the Sex Discrimination (Removal) Act 1919 women were prevented from entering into practice as a barrister or solicitor. The same piece of legislation allowed women for the first time to sit on juries, although women were only added to the selection pool in 1922.

Dr Williams never practised at the Bar and clearly intended to open the door for others. She went on to take up the honour of being the first woman to teach law at Oxford. When she was called Williams spoke publicly ‘of the women who would follow and practise at the Bar’, and asked that ‘every help and encouragement should be given to them in the difficulties they would face’.*

These were prescient words because the editor of the Law Journal at the time, while acknowledging the historical significance of the entry of women into the profession, also observed that it ‘was never likely to be justified by any success they will achieve in the field of advocacy’.**

Yet in the face of such scepticism, Williams’ contemporaries from the 1922 cohort, Helena Normanton QC and Sybil Campbell, who was the first woman full-time judge, flourished.

Do we need to keep banging the drum?

All that prejudice was 100 years ago. Many of our mentors are male and, given the bustling nature of the female robing room at the Central Criminal Court and the visible presence of women in robing rooms around the country, we asked ourselves whether there is a need to keep banging on the drum about the cause of the women at the Bar? In short, yes. The facts speak for themselves:

• A Bar Council report (October 2022) showed a 34% gap between men and women’s earnings. Using anonymous income data from self-employed barristers shared by Bar Mutual Indemnity Fund, the report revealed the gap is getting wider in some practice areas including immigration (38%), chancery (contentious) (39%) and personal injury (53%). In crime the disparity is 35% and in commercial and financial services it is 51%. Women’s earnings overtook men’s in just two areas – defamation (36%) and family (children) (3%).***
• As for the Judiciary, the picture for women, who make up 35% of judges – compared with 24% in 2014 – is improved. However, it is still expected to be another decade before women account for half of the Judiciary and reflect their percentage in the UK population. Currently, only one of the 12 Supreme Court Justices is a woman.
• Since 2017, the number of female KCs has gone up from 254 to 334, a rise of 31%. However, women still only make up just over 17% of silks.

The dismal prejudice exhibited by the Editor of the Law Journal in 1922 seems risible and distant yet it is difficult to reconcile such shocking disparity in earnings and judicial composition, unless some prejudice still persists in the legal profession.

Why?

The reasons for the predicament we face are multi-faceted and complex. ‘Choices’ involving bringing up children and working practices at the Bar which can be incompatible with being a parent. Differences in levels of confidence and inclination to self-promote also have their role to play.

There have been fantastic initiatives which really have to be understood in the historical and current context for their full value to be appreciated. Women in Criminal Law (WICL), for example, seeks to resolve some of these obstacles, by putting women in touch with other women for mentoring purposes. The authors, like others, have been massively helped along the way by male colleagues, but a female mentor will have a uniquely female perspective. Crucially she will understand that while our male counterparts may need either no nudge or a little nudge to accept their first leading brief or take the next step on the career ladder, female colleagues could often do with a reminder to ‘back themselves’.

Wellness is another initiative which despite its name is not about aromatherapy but about modern working practices for a modern Bar. No woman barrister we know only works 9am-5pm or feels that it is her entitlement to do so. However, if we are to have a diverse Bar and Judiciary which reflect societal make-up, that means keeping women at the Bar. This, in turn, means not expecting emails to be returned over the weekend or skeleton arguments to be prepared at the drop of a hat. The work will get done and the email will be responded to, but not necessarily on a Saturday when children, who may not have seen their parent for much of the week, are rightly prioritised.

We were impressed to read in last month’s issue of Counsel about the launch of the Charter for Fairness in Work Allocation, Career Development, Marketing and Earnings offering practical strategies to achieve best practice across the whole Bar (see ‘Charter for Fairness & routes to real change’, Nicola Rushton KC and Yasmin Yasseri, Counsel February 2023).

In today’s world, men take a more active role in a domestic setting but there is still an undeniable emphasis on women assuming a front and centre position at home. Until we are truly equal in our personal lives, the justice system must acknowledge the balance between work and home life is a fine one that requires understanding and flexibility all round.

However, there is cause for optimism

We are slowly heading towards equality in the profession. In 2021, the Recorder of London HHJ Lucraft KC confirmed that, for the first time since the Old Bailey opened its esteemed doors in the 18th Century, there was parity between male and female judges (‘Old Bailey achieves gender parity as more women join ranks of judges’, The Telegraph, 20 August 2021).

Baroness Hale presided over the Supreme Court from 2017 until her retirement in 2020. A stellar ascent but she was not complacent about the lot of women barristers. She, too, was dismayed at the earnings disparity and the fact that female advocates were not being given the opportunity to argue the biggest and most significant cases. As the most recently published reports prove, Baroness Hale was on point when she said ‘there’s still a lot more progress to be made’ (‘Female lawyers should not be forced to wear heels, says Baroness Hale’, The Telegraph, 11 January 2020).

In deciding whether to write this article, it was the response from others that persuaded us to finally put pen to paper. Our case lasted three months, and as the trial pressed on, the fact that we were in the firm majority became more comfortable.

Within the first few weeks, though, familiar faces in the Bar mess would stop at our table and marvel at the unique nature of personnel in our trial. All well-intentioned and meant as praise, but repeated plaudits for simply being all-female wore thin. Why, in this modern age, should it be still a surprise to see so many of us in one room?

There is further work to be done in achieving true equality at the Bar and the Bench. Like many of our female colleagues, we are committed to playing our part in seeing that such changes are effected, and a pathway is drawn for future generations. Complacency is not an option and, as with most change, it requires the input and support of us all. We look forward to the day when a multi-handed trial at the Old Bailey with female-only counsel is nothing to write home about.