Life comes at you in waves. I wrote this blog back at the beginning of March, ready to publish the moment that I had finished the trial I was in at the time. There are ways that seems a lifetime ago. Maybe even a different life. Events big and small meant that this blog did not get published then.
Now I have come to realise that often there isn’t going to be the perfect time to do all we intend to do, that waiting can mean missed opportunities. I know we all have a host of problems that we face but this was important enough to me to have written about when we all, perhaps, were someone else. And so it is still important to me now. Important things should not go unsaid.
There is a significant issue which is prevalent in the legal world. It is something which I have always known was there but has really become apparent to me in recent times.
A little background: Before becoming a QC a significant proportion of the work I did were sex cases. My diary also contained serious violence, fraud and drugs but I was not someone who went from one “big” multi-handed trial to another. I have written before about how the legal profession seems to value some areas of work more than others, that the diary of “paper heavy” fraud trial is seen as being better than back to back sex trials. It would appear that we have forgotten that complexity is not only measured by page count and ELH.
Now I am a QC, my work has changed. And it is that first twelve months of being in silk which has really brought something home to me – there is a gender brief gap. Men are disproportionately briefed in the “serious” cases that involve murder, guns, drugs and fraud.
I can go back to November 2018. In the run up to finding out I had been successful in my application and then in the period straddling my appointment, I was the junior in a couple of cases. From March I have, with the exception of one trial that was leftover from my junior practice, done a number of cases in Silk. From November 2018 the subject matter in each trial has been; Trial A – double murder in a gang war; Trial B – conspiracy to murder in a gang war; Trial C – a grooming gang; Trial D – murder by strangulation; Trial E – joint enterprise murder; Trial F – joint enterprise murder with a firearm. Interspersed amongst those trials have been other cases but I want to just focus on the trials. These are the cases where judges have granted certificates for the instruction of a QC due to the seriousness and complexity of the case.
Let’s now look at each case in turn:
Trial A – 7 counsel in total, 3 QCs and 4 juniors. Total number of women? 0
Trial B – 21 counsel in total. 7 QCs and 17 juniors (3 of whom took Silk during the case). 4 women. That’s 19% of counsel in the case were female.
Trial C – 7 counsel in total, 1 QC and 6 juniors. 3 women. That’s 42%.
Trial D – 4 counsel in total, 2 QCs and 2 juniors. No women.
Trial E – 10 counsel in total. 5 QCs and 5 juniors. No women.
Trial F – 17 counsel in total. 8 QCs and 9 juniors. 1 woman. That’s 6%.
In the cases trials I have conducted in the last 18 months, only 12% of other counsel have been female. Notably, if you take out the one sex case that I did, this falls to 8%.
None of the cases have featured a female QC who was instructed in that capacity (one of my fellow new Silks was in Trial B with me which we started out as juniors).
It is entirely possible that my workload is unrepresentative, it is a statistical outlier. Yet when I look at work to come I reckon there are probably something like 58 counsel involved in those cases. At the present moment in time there are two women involved, one who prosecutes a sex case and one who is the prosecution junior in a baby shaking case.
I also know that every female barrister that I have spoken to about this will recognise the picture I paint. They have the experience of being the only female in multi-handed cases. They know that their talented female counterparts are not instructed in such work in the same volume as their male colleagues.
There are factors at play such as the retention of females at the criminal bar but the attrition rate is not such as explains this. This is not a question of there not being females available to conduct these cases because there are. Plenty of them. And whilst I am most reluctant to even have to deal with this potential explanation, the women that are available are more than capable of doing the cases.
So why is it that a pool of available and talented advocates are not instructed in these cases? I am afraid I don’t know the answer. At least not a detailed answer.
In general terms it is clearly a problem that can correctly be labeled sexism. That sexism may be the attitudes of others (clients wanting a male barrister), structural (women are pigeon holed into sex cases), ingrained (courtrooms packed with men are the norm in these cases) or overt, direct sexism.
What I do know is that it is wrong. How do we put it right? I don’t know that either.
That is part of the reason for this blog. I am really interested in the suggestions of others for the solution to this issue.
One thing that occurred to me is that organisations need to be accountable for what happens. We need to be able to see what is going on. Whilst this will not make me very popular in professions which are already burdened with administration, is it not time that we required solicitors and barristers to keep and publish data on the instruction of advocates in certain cases? It is only by transparency, it is only by us all seeing the problem, will the solution emerge. It is only when we all acknowledge the gender instruction gap, will we begin to close it.
My colleague Claire McCann introduced a monitoring of instructions by ELA Solicitor’s so that gender bias of instructions could be identified. We have also campaigned for shortlists when considering briefing that should not be only male gender.
We think that it may be working. Please contact me on email@example.com and it’d be good to chat about ways in which to confront gender imbalance in instructions.
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would you be in a position to sk the Govt or other party to commission a study of cases by Cross referencing CREST and Xhibit data to see if there is a correlation with your anecdotal evidence? Pretty easy for a stats person to do. Could do BAME as well
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There is a duty on chambers to monitor gender balance in receipt of instructions (Bar Council) and to turn down requests for a male or female brief (Equality Act 2010). There is a duty on solicitors not to discriminate in instructing (Equality Act 2010). The problem is proving in individual cases that this is what has happened. I was the only woman who spoke in Miller (the Article 50 case) in the SC, over 4 days (and that was for 30 minutes). Only 3/55 barristers in that case were women. None instructed by ANY of the 4 nations, all separately represented. Utterly unrepresentative of the senior public law bar. ‘A safe pair of hands’ is still a white man.
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This is an important piece of writing. This is a shared experience. The author’s request for responses should be answered. Statistics can be obtained under a FOI request – that should get the conversation started.
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If such deliberate discrimination is occurring the evidence will lie behind a wall or privilege. You can’t ask solicitors what advice on the choice of counsel they gave their clients, and you can’t ask the clients what preference they expressed to the solicitors.
The oddity is this: that barristers and advocates are the only self-employed people who are even nominally covered by the Equality Act. If I want a solicitor to do the conveyancing on my new house, or an architect to design the extension, or an accountant to tell me how I can make it tax-deductible, or a surgeon to do what surgeons do (and there are many, many fewer female than male surgeons) – I am free, quite lawfully, to choose by reference to gender, race, religion, orientation, trans status, the lot. Similarly of course if I want the services of a butcher, a baker, or a candlestick maker, or perhaps today that should be an electrician. Or, more probably, I can select “in my own image” which often leads to a discriminatory effect even without the intention.
The explanation is that the law was changed in 1990, I believe at the request of the Bar Council who were engaging in “virtue signalling”. It was no doubt right to apply the law to e.g. the choice of tenants (although there too proof of discrimination is likely to be elusive) but it was nonsense to apply it to the choice of counsel. I suppose as it is unenforceable it does not matter, which is all very English.
I only once (before 1990!) deliberately chose counsel on the basis of gender. My client was an ex-husband who was, he told me, very sorry, he knew that the female counsel who was my first suggestion would do her professional best: but after his experience in his marriage (which was appalling) he did not believe he would ever feel any trust or confidence in a woman again; and I was please to instruct a man, which I did. I thought then and think now that his right (especially in such personal litigation) to counsel in whom he felt confidence trumped any obligation not to discriminate, and I would be glad to know why anyone disagrees.
I cannot resist mentioning the sequel. That was in 1980. In about 2015 I bumped into my ex-client at the Festival Hall, fell into conversation with them – and learnt that he had remarried and was only recently widowed. Obviously he had eventually overcome his experience!
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