The question of how we can improve equality and diversity across the criminal justice system in the UK is particularly pertinent, as I am writing a training module for the UN on monitoring and protecting the human rights of women. While the module is mainly aimed at human rights officers working in various regions around the world, often those countries adversely affected by conflict, the principles apply to all. It reminds me how poor we are at taking a holistic approach to improving equality and diversity across the criminal justice system in the UK.
On the one hand, we recognise the lack of diversity in all respects as an issue and there have been positive strides in recent years to diversify the Bench. On the other hand, we have a retention problem for women (and others but widely recognised as disproportionately affecting women) at the criminal bar. We rob Peter to pay Paul and with little evidence of programmatic planning to indicate how diversification, even at the Bench alone, will be maintained over the next 10 to 20 years as the cuts of the last few years work their way through the system and have an even greater impact at the senior end of the criminal bar. Diversifying the civil service is an easier achievement for the state but it is false progress if it cannot be maintained or undermines development in other aspects of the criminal justice system.
And how do we approach diversification in terms of allocation of work at the Bar?
In simple terms we don’t. In a recent Criminal Bar Association Monday message, its chair Chris Henley referred to the lack of females appearing in heavy fraud, terrorism and murder trials. While I genuinely do not think there is a ceiling for women at the Bar and I have never been told or found that I simply cannot do something, the reality of conditions and subconscious bias clearly translate into a lack of diversity in heavyweight cases outside of rape and serious sexual offences. In the past year alone, I have been instructed in several cases where every one of my opponents in multi-handed fraud and drugs conspiracies has been male. When covering an 18 handed PTPH for someone at Southwark (I know- why did you agree to that I hear you ask), every single one of the 18 defence representatives was male. That is no coincidence and these are not isolated examples.
Starting with the obligations of the state, it would be a simple step for the CPS to collect data on who they instruct, in what type of cases, disaggregated at least by sex and age. This is not an expensive step to take. Perhaps, with that evidence, change could then start to be seen across other parts of the criminal justice system and defence would also see the benefits of more diverse representation. There is ample evidence to show that programmatic change is most effective when co-ordinated across all of the relevant strands.
The UK is a signatory and has ratified the Convention on the Elimination of all forms of Discrimination Against Women, sometimes known as the ‘Women’s bill of rights.’ Its obligation under this treaty are underpinned by the commitment to providing substantive equality. Representation within the legal system is widely recognised as a key element of this. The UK should be leading by example and to do so on the international stage.
Internationally, the UK has adopted a role championing the prevention of sexual violence in conflict. Investigations have improved, as has UK programming abroad (although international accountability for such crimes remains weak).
The UK also has a 5-year foreign policy strategy (the UK National Action Plan on Women, Peace and Security) designed to reduce the impact of conflict on women and girls and promote equality in order to ensure we meet our Women Peace and Security Commitments under UN Security Council Resolution1325. A key part of this plan looks at increasing women’s participation in security and justice architecture.
Achieving equality and diversity in all respects takes work but it does not have to cost a great deal of money. Given all the advantages we have in the UK compared to so many troubled countries around the world, shouldn’t we try a bit harder to achieve a holistic approach to achieving equality and diversity within the criminal justice system in the domestic arena as we seek to do internationally?
Serena Gates is a barrister at 5 St Andrew’s Hill