Gender Disparity in the British Judicial System

 Since the 19th century, women have been striving for greater participation at every level of the political and legal systems. Starting a century ago with the Suffragettes securing their right to vote and more recently through the #MeToo campaign, women have been highlighting their response to the law’s failure. For me, this raised the fundamental concern: were these brave women who were abused and shamed by powerful men going to receive justice in a system made and governed by other powerful men?

This essay aims to demonstrate the clear gender disparity in the British judicial system and that the UK is considerably behind other countries. There is a large body of opinion that believes different perspectives can add variety and depth to decision-making, improving the quality of judgements. Moreover, this gender disparity undermines the standard of our justice system, as it does not accurately reflect our society, and thus a more reflective judiciary would increase democratic legitimacy and public confidence.

Currently in the UK, the judiciary is made up of predominantly white, privately-educated men. Given that 51% (Statistics, 2018) of the British population is female, the table below effectively highlights the lack of diversity.

UK	1995	2007	2016
Supreme Court (UK)	Female: 0% BAME: 0% (0)	Female: 8.3% (1) BAME: 0% (0)	Female: 8.3% (1) BAME: 0% (0)
Court of Appeal (England and Wales)	Female: 3.1% (1) BAME: 0% (0)	Female: 8.1% (3) BAME: 0% (0)	Female: 20.5% (8) BAME: 0% (0)
High Court (England and Wales)	Female: 7.3% (7) BAME: 0% (0)	Female: 9.3% (10) BAME: 0.9% (1)	Female: 20.8% (22) BAME: 3.7% (2)
Circuit Bench (England and Wales)	Female: 5.6% (29) BAME: 1% (5)	Female: 11.4% (73) BAME: 1.4% (9)	Female: 25.6% (160) BAME: 3.7% (23)

(The Working Party, 2017)

As illustrated by the table above, compared to the British population, women are woefully underrepresented in our senior courts. Although there has been change, it is more concentrated at the lower end of the judicial system. Whilst my focus is gender based, it is also worth noting that the figures show a lack of representation for the BAME community which makes up around 19.5% of the population as of the most recent census (Ethnicity-facts-figures.service.gov.uk, 2019). The statistics overwhelmingly demonstrate that the British judiciary system is dominated by white males and does not reflect the ethnic or gender structure of our society. Interestingly, in 2017, ‘the number of working female solicitors in England and Wales … exceeded men for the first time.’ (Baker, 2018) meaning that the lack of female judges is not due to a lack of female talent.

Moreover, the UK falls behind other equivalent courts overseas in terms of gender diversity, as exemplified in the table below.

	Court	Women	Total Number of Judges	Women as a % of Court
New Zealand	Supreme Court	3	6	50%
Germany	Federal Constitutional Court	7	16	44%
Canada	Supreme Court	4	9	44%
Australia	High Court	3	7	43%
France	Constitutional Council	4	10	40%
Ireland	Supreme Court	4	11	36%
Norway	Supreme Court	7	20	35%
Denmark	Supreme Court	6	19	32%
USA	Supreme Court	3	9	33%
South Africa	Constitutional Court	3	9	33%
Sweden	Supreme Court	5	16	31%
Israel	Supreme Court	4	15	27%
Italy	Constitutional Court	3	14	21%
UK	UK Supreme Court	1	12	8%
	ECtHR (European Court of Human Rights)	15	47	32%
	International Criminal Court	7	18	39%

(The Working Party, 2017)

Many of the countries mentioned above are generally considered less progressive than the UK, yet have still managed to achieve a far greater level of diversity at the highest level of the Justice System. This evidently proves that gender equality is achievable and reinforces the UK’s need to radically strengthen diversity and modernise the justice system to remain in line with our peers.

Research shows that diversifying the judicial body will better ‘[reflect] the gender ratio of society generally, … [enhance] public confidence, … [change] the working environment,... [provide] role-modelling for women and … [bring] different approaches to judicial office than those brought by men’ (Feenan, D, 2008). Public faith in the judiciary system has been proven to be directly linked to the ability to relate to those who sit in judgement. A further study by the Women’s Communication Centre states that women wanted more equality of representation within the system (Adcock and Tibballs, 1997).

Additionally the Neuberger Advisory Panel on Judicial Diversity stated that, ‘There is a strong case for judicial diversity. Not only should there be equality of opportunity for those eligible to apply but in a democratic society the judiciary should reflect the diversity of society and the legal profession as a whole.’ (Improving Judicial Diversity Progress towards delivery of the ‘Report of the Advisory Panel on Judicial Diversity 2010’, 2010).

Having considered the research set out above, the data supports the argument that there is a definite lack of female judges and that diversity is essential to the public’s perception of the calibre of the British Judicial System. According to Lady Hale, the only female Justice in the UK Supreme Court, ‘The judiciary needs to be more diverse so that the public feels that those on the bench are genuinely “our judges” rather than “beings from another planet”.’ (Bowcott, 2019). Bertha Wilson, the first female Puisne Justice of the Supreme Court of Canada, believes that as women can view the world from a different perspective to men, they are able to introduce more impartiality and judicial neutrality (Wilson, 2005). As well as the quality, the legitimacy of our Justice System relies on its ability to represent society as a whole.

This corroborates the view of many other legal professionals. According to the CeDaw Committee, ‘institutions will be ignored or disregarded [by the public] in circumstances where they are perceived to be representative of one specific group’ (WOMEN DELIVERING JUSTICE: CONTRIBUTIONS, BARRIERS, PATHWAYS, 2018) i.e. the white, male, privately-educated symbol that we associate with the British Justice system. Furthermore, Helena Kennedy QC states that ‘The law can never be completely out of step with public feeling or it will be held in contempt … the law has to … lead public opinion but also reflect it.’ (Kennedy, 2005). Being able to demonstrate a selection process that is inclusive increases fairness in the judicial system, whilst also encouraging a change in the working atmosphere and creating more role models for women. ‘The presence of women in the justice sector … sends a powerful message for those who aspire to justice sector positions that recruitment to the sector, in particular the judiciary appointment process, is what it claims to be - fair, meritocratic and non-discriminatory.’ (WOMEN DELIVERING JUSTICE: CONTRIBUTIONS, BARRIERS, PATHWAYS, 2018).

Furthermore, by increasing the gender diversity of our judges we are able to improve the quality of judgements due to a wider range of perspectives. There is a large amount of evidence suggesting that different but complementary perspectives lead to robust and well-considered decision-making. Lady Hale is the most senior advocate for this, and has stated ‘different voices add variety and depth to all decision-making.’(Hale, 2013). This can be seen in the case of Hesam Khosravi, 24,[who was jailed for six years in January for an attack at a flat in the Trafford area. Judge Adrian Smith said Khosravi was a well-educated man from a "decent, supportive family". However, Lady Justice Hallett agreed that the sentence had been "unduly lenient" and raised Khosravi's sentence to 11 years. The case was described as excruciatingly difficult to watch and considering the wealth of evidence (including two videos showing both the attacks) it is clear to see why this overruling was made (BBC News, 2013) . Rape and sexual offence cases are a key area where male judges can on occasion underestimate a victim’s trauma. Another example can be taken from when ‘A judge … sparked anger after branding a rape victim “extremely foolish” for drinking too much before she was attacked outside a nightclub.’ (Evans, 2015). From these examples, it’s clear that by increasing diversity, the quality of some of the judgements would be improved through more sensitive management and would potentially create a more supportive environment to encourage victims of sexual violence to come forward.

In summary, to ensure the quality of the justice system, diversity is required as it provides legitimacy, fairness and quality. Without these key factors, judgements can be perceived as one-dimensional and outdated.

Conversely, some members of the judiciary believe that gender is irrelevant to the ability to make valid judgements as it is their legal duty to remain objective, and put personal experiences and opinions aside. It is deemed unprofessional to judge with emotion. All judges should strive to uphold the Judicial Oath, which clearly states that the judge ‘will do right to all manner of people after the laws and usages of this realm, without fear or favour’ (Judiciary.uk, n.d.).If this promise is upheld then it supports the argument that gender plays no role in the quality of justice. This can be seen in the case R v R. The court judgment delivered in 1991, in which the House of Lords determined that under English criminal law it is possible for a husband to rape his wife. In 1990, the defendant had been convicted of attempting to rape his wife. He appealed the conviction on the grounds of a purported marital rape exemption under common law. R claimed that it was not legally possible for a husband to rape his wife, as the wife had given irrevocable consent to sexual intercourse with her husband through the contract of marriage, which she could not subsequently withdraw. Both the Court of Appeal and subsequently the House of Lords upheld the rape conviction, declaring that a marital rape exemption did not exist in English law. In both cases, all judges presiding over the case were male. (En.wikipedia.org, 2019). Not only was this a landmark case for sexual assault cases, setting a new precedent, but the all male panel also achieved an amendment to the Sexual Offences Act 1976, to include marital rape as ‘unlawful’.

Moreover, Lord Sumption, a member of the UK Supreme Court, suggests that it could take 50 years to achieve gender equality within the senior judiciary, and that historically this was a ' very short time’ and ‘[change] would happen naturally’ (Walker, P,2015).  Additionally, there is a school of thought led by Lord Sumption, which claims that ‘positive discrimination’ around artificially increasing the number of female judicial appointments can actually have overwhelmingly negative effects. He believes that positive discrimination ‘would dilute the quality of the bench; it would deter the best candidates from applying – that is, the top white males would not apply if they thought that they would be discriminated against; and the top women and BME would not apply because they want to be appointed on merit alone and not because of their gender or ethnicity.’ (Hale, 2013). Those who subscribe to this school of thought would rather have a less diverse judicial body than a less qualified one, to maintain the validity of the system.

From a personal perspective, whilst there are some plausible arguments that the lack of diversity does not undermine the quality of the British Justice System, my observations are that even though cases such as R v R exist, they are thoroughly outweighed by cases that would benefit from more judicial diversity. In addition, Lord Sumption’s concerns, while valid, miss the point. In my opinion, someone of his influential status, would create more positive change through promoting a more holistic approach to improving the antiquated system of judicial appointments. For example, through implementing an improved recruitment strategy such as that outlined in JUSTICE’s report on Increasing Judicial Diversity (The Working Party, 2017). Although I acknowledge radical changes takes time, if it has taken almost 100 years to appoint just one female Supreme Court judge, I believe Lord Sumption’s 50 year estimate for change to be wildly optimistic. Finally, there is no doubt that judges strive to uphold the values of the judicial oath, however I think the opinion stated by Lord Neuberger, President of the Supreme Court from 2012 to 2017, is more realistic; ‘a scientist and a lawyer both suffer from the fact that personal convictions and biases keep on breaking in. However much we try and allow for our own prejudices, it is almost inevitable that that insidious and uncontrollable imp, unconscious bias, will be hard at work.’ (Neuberger, 2015). A more solid test of quality, in my opinion, would be a process that is legitimate, fair and diverse.

In conclusion, I believe that without a doubt there is definitely a lack of female judges, as seen in the data presented. Moreover, having considered both sides of the argument, I believe that the lack of female judges does undermine the quality of the British Justice System. In view of the fact that 51% of Britain’s population is female, evidently women are grossly underrepresented. Through the cases cited it is clear that on occasion male judges do not provide impartial and neutral judgements, perpetuating the power imbalance between men and women. This results in women being failed by an institution that should promote fairness and justness. Through the eyes of the #MeToo campaigners, the risk of being subjected to further insensitive, unsympathetic scrutiny and invalidation is undoubtedly the final injustice faced by too many.

As presented, numerous quotes from senior legal professionals support the case for greater diversity and personally the most compelling of these comes from the notion that our judiciary system must reflect the society that it serves, to preserve democratic legitimacy. Laws are the foundation on which society thrives, without it chaos would ensue. Therefore it is vital that society respects the law and those who uphold it. The law sends influential messages which underpin our society and it is important that they do not reinforce stereotypical images. Given the rate at which society has changed and the challenges it faces, having a judiciary that is fit for 21st century life is more urgent than ever.

Evaluation

My primary objective was to investigate whether the lack of female judges undermines the quality of the British Judicial System. Having completed the essay, I feel that I have successfully researched the relevant areas pertaining to this topic and reached a justified conclusion based on the academic evidence presented. I believe that my project was highly successful; I reached an evidenced conclusion, included many different sources and case examples and discussed varied points of views throughout my essay. In my opinion, the most compelling area of my project is the statistics surrounding the number of female judges in comparable overseas courts, as I feel it helps illustrate the gravity of the issue in the UK. Unfortunately I was not successful in gathering primary data, and if I were to repeat this project I would try to gather some from a group of legal professionals. During the project I attempted to gather this data from a Barristers Chamber that I did work experience for, however due to an internal policy they were not allowed to share my survey. Nonetheless, I feel that I managed my project well; I followed my Gaant chart and my essay follows my original plan closely. During the completion of this project I also kept my Activity Log on ProjectQ updated so I could keep track of how my project was progressing. I also think that I managed my time well, gathered enough research beforehand and met all deadlines. During this project I have learned how to reference sources in an academic essay and how to use applications such as JStor to gather academic journal evidence. The main weakness in my research was that the data was not always current on this issue as it is a topic that fluctuates with political agendas. If I were to repeat this project, I would like to include a discussion of the Judicial Appointment process as I feel it would have given my project an extra dimension and would help explain the technical details of the system and its flaws. However for this project, I could not include this information as it would have exceeded the word count. By looking into this area, I would have been able to extend my research and give more evidence. With more time, I would like to explore this area further as I have found it interesting and disturbing in equal measure as the results could have a direct affect on my personal career ambitions and would find it useful in helping me develop my opinions on this topic.

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