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Women at the Criminal Bar: Fair Access to Work and Fees

- The WICL Policy Team

The problem

Since the inception of Women in Criminal Law (WICL) in 2018, we have heard repeatedly from our barrister members, particularly at the junior end, that they feel that they are hitting a ceiling after a few years in practice. We all know that retention of more senior women criminal practitioners is a problem, and the quality of work they do is one of the causes. One WICL member (8 years’ call) told us that she is increasingly moving her practice away from criminal work. Whilst she loves criminal law, she feels that her briefs have not evolved with her, and she is tired of watching more complex and profitable work being handed to her male colleagues in chambers as she walks the familiar path of sex cases and lower level general crime.

We have heard this from our individual members, and the data confirms the position. We know that women join the criminal bar in greater numbers than men, but that there are fewer women the higher you go.

HHJ Emma Nott recently published a brilliant series for Counsel on “gender at the bar and fair access to work”. She examines the data in detail and the picture is not pretty. In 2019, across 29 areas of law, men out-earned women in 27. In criminal law, women earned 39% less than their male counterparts.

Frustratingly, despite the heroic efforts of many within the profession to effect change, the position is not improving. HHJ Nott examines the number of women in both the top 500 and top 100 fee earners (of publicly funded advocates in criminal defence). Whilst the number of women in the top 500 has risen from 53 in 2011-12 to 63 in 2016-2017, this is down from a high of 90 in 2014-15. The number of women in the top 100 has held steady. At FOUR. No, that’s not a typo. Put simply, we are going in the wrong direction.

HHJ Nott’s figures are borne out by WICL’s own data. WICL conducted an equal pay survey last year, and are grateful to chambers who were prepared to participate. Our method excluded anyone who had any significant time off (due to illness, maternity leave etc.) but the picture was clear: over 10 years call men’s earnings consistently outstripped women’s.

Through working with WICL, the CPS have also discovered that despite their championing of women in their own organisation, their briefing is significantly skewed towards men.

The challenges

Collecting data on this issue is problematic, because there is no requirement for chambers, solicitors or prosecuting authorities to collect or publish this data. HHJ Nott looked at the Legal Aid Agency’s data on fees paid to advocates for publicly funded criminal defence work, however, we do not have data on private work (although we cannot help but think the numbers there would be even worse). As a result, those with briefing power are not accountable for their decisions. Further, following work with WICL Policy team and the Bar Council, the CPS are creating a new, more sensitive tool to collect this data and working to improve self-declaration rates on a number of protected characteristics in relation to CPS work.

The challenges faced by female practitioners are compounded by the Covid-19 pandemic. Several studies have shown that women have shouldered a disproportionate burden when it comes to childcare, home schooling and other caring responsibilities. Sometimes it is asked why this is still seen as a women’s issue. We agree, it shouldn’t be. Most children have a mother and a father. These are wider societal issues, and they need addressing. However, the fact remains that, right now, women’s careers are disproportionately impacted. We are delighted to have been instrumental in ensuring that the Extended Operating Hours policy was not rolled out, however, it is clear that women’s ability to work capacity is extremely limited in lockdown.

The solutions

Accountability for those with briefing power: We are thrilled that the CPS, who already lead the way on equality, have been working with WICL to address the gender inequality in briefing practices (see Part 4 of HHJ Notts’ series) and a plan has been set in motion. WICL’s work with the CPS has demonstrated that it is possible to improve diversity in briefing. We are confident that in time, this will significantly improve the gender pay gap in the CPS’s briefing figures.

WICL has also worked with the Bar Council Equal Pay Committee on producing to the Monitoring Work Distribution Toolkit Part 1: Sex which was published on 18.12.2020. As it rolls out, it too should improve the fair allocation of work in Chambers.

Whilst the legal requirement on larger organisations to publish data on gender pay gaps captures bodies such as the CPS and the SFO, it misses virtually all defence solicitors and does not encompass payments made to the self-employed bar. We believe the Law Society, the CLSA, the LCCSA and the CBA organisations should look to have a plan to improve equality in briefing and insist that chambers also has a written policy. As public money is being spent, we would also encourage the MOJ to require defence firms and prosecuting agencies to analyse their briefing data. We would encourage all of our solicitor and clerking members to champion the cause of gender equality in briefing within their organisations, and for chambers to commit to collecting and sharing data, across publicly and privately funded work, on fees.

Increasing female representation amongst criminal clerks: There are some brilliant women working in the clerking rooms of criminal sets, including several of our committee members. However, there is no doubt that clerking remains a man’s world. Clerks hold significant power in terms of the type of work in which tenants, particularly junior tenants, are briefed. Criminal sets should actively seek to recruit women to their clerking teams and properly analyse how clerks distribute work and promote their barristers.

Challenging gender stereotypes: Ill-informed preconceptions about the types of work that women and men are suited to persist in the criminal law. Women are perceived to be better at handling “emotional cases” and “difficult clients”, whilst men are thought to be more capable of addressing the perceived complexities of white collar and fraud work and of dealing with corporate clients. Written down, that sounds ridiculous, but these pre-conceptions inform briefing practices, and we must change them. Only by increasingly accountability, and challenging those with briefing power to do better, will we begin to dismantle these stereotypes.

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