In the Magistrates’ Court there’s a general principle that where three individuals sit as a “lay bench” to form judgement on the criminal cases there should be at least one woman and one man on that bench. This doesn’t usually poses any difficulty, as there are roughly equal numbers of male and female Magistrates (49% : 51%). However when you get to the Crown Court, this changes substantially. Crown Courts hear the more serious criminal cases that get “sent” from the Magistrates’ Court (such as murder) as well as those that are “committed” from the Magistrates’ Court (i.e. the cases that could be tried in the Mags’, but are thought to warrant a sentence over and above what the magistrates could impose). Of the Judges in the Crown Court, only around 17% are female. And the higher up you go the worse it becomes. At the top of the top, the Supreme Court, Lady Hale is our only female Judge, in amongst a host of no less than eleven men! This, however, looks set to change, as the UK’s fourth most powerful woman is on the case.
I was recently privileged to attend a lecture sponsored by Tooks Chambers and Bindmans Solicitors in which Lady Hale addressed us on the subject of diversity in the judiciary. Her full speech is available here. It appears that the UK is lagging behind considerably in the equality stakes. Across Europe, there appears to be a fairly even gender balance in the judiciary, with approximately 48% women. England and Wales come in at a pitiful 23%. Why is this? One theory is based on the idea that judges are generally criminal barristers who have worked their way up to becoming Recorders (part-time judges) in the Crown Court and then applied to become a full-time member of the judiciary. To be a Recorder you need to be an experienced barrister (or solicitor). The trouble is, many female barristers leave the profession before they gain that experience. Why is this? Again, there are various theories. Personally I don’t believe the Bar to be a particularly family-friendly profession; we’re self-employed practitioners and so don’t have the maternity pay or annual leave benefits enjoyed by our employed counterparts. We work long hours and are frequently called upon to prepare cases during the evening and at weekends. From my perspective it appears to be a real struggle to balance a family life and a successful, busy practice, as a criminal barrister. Some manage it but many seem to be leaving the Bar at a time when their male counterparts are climbing the career ladder.
But whatever the reason for our lack of equality in the judiciary, two questions remain; does something need to be done about it? And if so, what? Lady Hale is clear that diversity on the bench is both necessary and positive. Men and women draw on different life experiences and there is a need for a balanced approach in deciding cases. So how to we increase the numbers of female judges? Lady Hale advocates positive discrimination, however makes clear that this is not about putting women in roles which they are not qualified for. Rather, it’s about ensuring that experienced, qualified and suitable women are not overlooked in the recruitment process. I’m inclined to agree.