Women in the Law

Fawcett’s Commission on Women and the Criminal Justice System recently published a report identifying institutional sexism in practice. Laura Prince considers their proposals to improve court proceedings, and to deal with the under-representation of women at the Bar and in the judiciary.

Over the last five years Fawcett’s Commission on Women and the Criminal Justice System (“the Commission”) has examined the experiences of women as victims, offenders and workers in the criminal justice system (“CJS”). Their final report, Engendering Justice – from policy to practice, was published in May 2009. It concluded (p 7) that: “The experiences of women within the CJS provide countless examples of institutional sexism in practice through processes, attitudes, and behaviour which amount to discrimination which disadvantages women.”


This has resulted in a CJS which:

  • does not address the causes of women offending leading to many women being imprisoned on short sentences for non-violent crimes;
  • fails to provide women victims of violence with support, safety and justice; and
  • creates a glass ceiling for women working within the system so that higher positions across the sector remain male dominated.

The report covers a wide range of subjects including prisons, probation, the Crown Prosecution Service (“CPS”) and the police. I have chosen to focus on those parts most likely to impact upon practising barristers, namely the suggested changes in court processes which may impact on criminal practitioners and the under-representation of women at the Bar and in the judiciary.

Substantive equality

“A substantive equality approach to tackling disadvantage recognises that some inequalities – including gender – are so persistent durable and institutionalised that to treat people in the same way may simply be to reproduce disadvantage, thus perpetuating discrimination.” (See p 18 of the report.)

The Gender Equality Duty  (“GED”) was introduced by the Equality Act 2006, and came into force in April 2007. It imposes a positive duty on public authorities to have “due regard to the need to eliminate unlawful sex discrimination”. The Commission had hoped that this duty would result in a more positive and proactive approach towards equality, however, they concluded that progress since the introduction of the GED had been “disappointing”. The Commission found there was a lack of understanding of the meaning of substantive equality and how it differs from formal equality; Formal equality assumes that all people should be treated alike (such equality can in fact entrench gender disadvantage). Substantive equality is directed at achieving substantively equal outcomes. This misunderstanding has led to the redirection of funds from women only services and the application of programmes, services and treatment designed for men to women. It is imperative that inequalities are addressed from the perspective of substantive equality as opposed to formal equality, for measures to be effective in reducing discrimination.

Court processes Evidence in rape cases

“Evidence presented to the Commission painted a picture of a court system which remains a difficult experience for women victims.” (See p 57 of the report.) The Commission recommended that special measures – such as screening the witness off from the accused, giving evidence by live television links, excluding people from the courtroom and allowing witnesses to give evidence-in-chief by pre-recorded interviews – are more widely publicised and utilised.

The Commission found that expectations as to how a “proper victim” should behave continue to shape the CJS response to violence against women. A 2009 Home Office Survey revealed that one in four respondents believed that a woman was partially responsible if she is raped or sexually assaulted when she is drunk and one-third thought she would be partially responsible if she flirted heavily with the man beforehand. The decision of the Court of Appeal in R v Doody (2008) The Times, 26 November (that judges in rape trials can give instruction to jurors that a delay in making a rape allegation, rather than indicating a false complaint, can arise from feelings of shame and guilt) was commended by the Commission who felt there should be greater awareness of it. The Commission recommended that the application and interpretation of the decision should be closely monitored. They also recommended that the government further consider the use of expert testimony to educate juries about the potential effects of trauma and to assist in dispelling some of the myths and stereotypes which surround rape. The effectiveness of such evidence is supported by a study with over 200 mock jurors that indicated that judicial instruction/expert testimony which provided an explanation of behaviour resulted in participants being less likely to assume fabrication by the victim (submission by Vanessa Munro, University of Nottingham, March 2009).

Sentencing female offenders

“Too many women continue to be imprisoned on short sentences for non-violent crime and remand continues to be over-used. Meanwhile short sentences have a devastating effect on the lives of women, of whom one in three have histories of sexual abuse and over half have been victims of domestic abuse.” (See p 9 of the report.)

The Commission recommended that a pre-sentence report (“PSR”) is always obtained before sentencing a woman offender to custody. Comprehensive PSRs, which analyse the harms likely to result from incarceration, should be prepared for each female offender, including an assessment of the impact of incarceration on any dependents. Further, judges should be required to give reasons for not following the recommendations in the PSR. Barristers and solicitors also need to be aware of the specific harms which can result from custody for women and their families and ensure that this is clearly presented to the court. A high proportion of women are sole carers for dependent children. 17,700 children each year are separated from their mothers due to imprisonment and at least a third of women offenders with children are lone parents. Only five per cent of the children of women offenders remain in their own home once their mother has been sentenced. For women in custody maintaining contact is very important yet the location of female prisons means families are often unable to visit. Further, although women make up only five per cent of the total prison population, they commit around 50 per cent of self-harm incidents. This indicates that prisons are failing to meet the needs of female offenders.

Female workers in the CJS: Barristers

“While there is a growing acknowledgment that female victims and female offenders require a justice system that is responsive to their distinct needs, there is less recognition that justice needs women, with a greater representation of women, particularly in high level positions, crucial to make gender responsive criminal justice system a reality.” (See p 10 of the report.)

Women now join the Bar in roughly equal numbers to men. However, in 2007 30.94% of self-employed practitioners were women and only 19.5% of self-employed barristers with over 15 years’ experience were women. An unpublished survey (see www.lawgazette.co.uk/news/unpublished-research-confirmsbar-earnings-divide) of 3,600 barristers, showed that on average men earn almost £100,000 (gross billed income) more than women per annum. At the top 30 sets of the UK Bar, there are only 42 female compared to 479 male Silks. There is clearly still a long way to go to achieve equality at the Bar.

The Commission made the following recommendations in order to rectify this balance: flexible working practices should be implemented and promoted; the Queen’s Counsel Appointments Selection Committee should work with the Judicial Authority Commission (“JAC”) to share best practice and methods for increasing the pool of women applicants; equality and diversity training should be made compulsory for all barristers as part of their continuing professional development requirements; and a mentoring policy, particularly for women who take maternity leave or career breaks, should be adopted by all barristers’ chambers and relevant employers.

The judiciary

“The predominantly male environment of the judiciary might actually be hostile to women, let alone supportive.” (See p 75 of the report.)  In 2008 just over 10 per cent of the 109 High Court Judges were women and just over 8 per cent of the 38 Court of Appeal Judges were female. Baroness Hale is the only female Law Lord.

The Commission recommended:

  • further evaluation should be carried out on advertisements and outreach events to ensure the JAC is reaching its intended audiences;
  • all judges should be trained in equality and diversity;
  • fee-paid experience should not be used as essential criteria for judicial positions;
  • applications for the judiciary should also be open to government lawyers which would assist in widening the pool of female lawyers;
  • part-time working should be available to all levels of the judiciary;
  • allocation to a particular court location should be discussed with the individual before a final decision is made.

The Commission’s report has identified that there is real and systemic discrimination against women within the CJS and they have made comprehensive recommendations to address the inequalities they have found. In order for them to be effective there needs to be a change in culture and attitudes. The Bar is perfectly placed to initiate this change.

Laura Prince is a barrister at Matrix Chambers

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