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Lessons from Baroness Kennedy: women in legal practice

Updated: Oct 28, 2021

Last year, the Dickson Poon School of Law had created a series of lectures to celebrate 100 years of women being allowed to enter the legal profession and to outline the importance of women's contribution to the law.

The story of women coming into law is not one without plenty of hardships. As they tried to enter the legal field in the late 19s/early 20s, regulations stated that 'only the persons suitably qualified' could become solicitors, barristers or get into university. These regulations were taken to court with women stating that they were indeed suitably qualified. However, the problem was not in the qualification at all. In a ruling which prevented women from qualifying as solicitors, the 1914 Court of Appeal case Bebb v Law Society found that women failed to fall within the definition of 'persons' and so these cases became known as 'the person cases’.

Many of those cases were brought by courageous women who were met with ridicule at that time for supposedly wanting things above their station. It was not until after the First World War, in 1919, when the Sex Disqualification (Removal) Act came into force, that four women with first-class degrees from Cambridge University were allowed to pass their law exams and become lawyers. Nevertheless, many decades of discrimination continued as the Sex Discrimination Act, which made it unlawful to discriminate against women or men in employment, education, goods, facilities, services and premises, was only passed in 1975. In the 70s less than 10 per cent of practitioners in the Bar were women. It was not rare for women applying to chambers to hear people say 'we've already got one'.

This is the experience and knowledge Baroness Helena Kennedy QC recounted at the King's lecture series. She is one of Britain's most distinguished criminal law barristers. She has used many public platforms – including the House of Lords, to which she was elevated in 1997 – to give a voice to those who have the least power within the system by championing civil liberties and promoting human rights, including bringing one of the world's first cases about transgender rights, at the European Court of Justice in 1996. I read Helena Kennedy's book 'Eve Was Framed' as I was applying to study law and found her writing very powerful in looking at the underlying causes of the appalling outcomes for women within the criminal justice system.

Diversity in the judiciary and for practising lawyers is vitally important - we need to see the law enriched by the experience of people from different backgrounds to get representative law that is trusted by the general public. For example, in her speech, Baroness Kennedy explained that back then, the widespread nature of domestic abuse and violence against women was never an issue discussed in the criminal law. Having law that sounds as it is equal is not enough – you have to look at the underlying assumptions made in it. For example, in criminal cases, murder sentence was possible to be reduced to manslaughter when 'a man was no longer a master of his mind' when he snapped in the face of provocation. The case law was usually about men killing their wives because of the rage of walking in and finding their wives in the arms of a lover. It was difficult to get that to work for women. There were cases of women, having been badly battered and abused, killing their husband in the centre of the continuing assaults and the courts would convict them of murder, not manslaughter, saying that it was not done in the heat of the moment and that they were a master of their mind. The courts, however, failed to understand that the situation women faced could sometimes be more similar to the snapping of an elastic after many years rather than an instant moment of loss of control.

Diversity in law is about the need for the law to reflect the reality of women’s experiences and the ways in which women live their lives. It is about examining the ways in which the law, which was made from the perspective of men, often from privileged backgrounds, has to be enriched with the experiences of women. We have to recognise that inequality goes beyond the topic of gender. It is exacerbated by inequality of wealth, race and other factors. In the face of that, women still end up being disproportionately affected when there are things like austerity policies that aim to reduce government budget deficits through spending cuts and tax increases. The House of Commons Library estimates that, looking at all changes to taxes and benefits from 2010-2017, 86 per cent of the reduction in government spending is affecting women more.

Take into consideration cuts to legal aid in the family courts and therefore the increase in self-representation—as many as one in three cases have no lawyer at all. There is horror for those who have to suffer personal cross-examination by an ex-partner accused of domestic abuse. There is indeed a current protocol, however sometimes not used, which asks judges in such cases to put themselves in the extraordinary position of taking over the cross-examination before ruling on the case. However, it is still often unhelpful in terms of encouraging victims to come forward.

Also, when it comes to criminal compensation because of sexual assault, women are put through an awful interrogation process and often do not get the compensation to afford therapeutic and psychological help. Moreover, that is a broader topic of the narrative of women expected to be the 'perfect victim', usually in terms of having no past record, reacting distressed and vulnerable.

Some provisions were made to help vulnerable witnesses. For example, the mandatory training for barristers and judges and the use of independent intermediaries has profoundly changed the trial experience for everyone. A complainant's evidence is now pre-recorded, so one doesn't need to stand in court and say it all over again. If the witness is vulnerable, cross-examination will be agreed in writing with the prosecution and approved by the judge in advance. Prosecution procedure demands that no complainant should ever be unaware that an application to bring up her sexual history has been allowed. The fact that Baroness Kennedy describes breaches of such laws and procedures as happening 'often' means that it is often not the law itself which is failing women; rather, sometimes the ones practising it.

Many still believe that the law is an objective set of rules, that the law is neutral. The point of 'Eve Was Framed' was to show that this claim of neutrality was not particularly realistic. Treating as equal those who are deemed unequal does not produce equality. The issue of discrimination goes beyond the topic of women. It extends to wealth, race, sexual orientation, physical disability and more.

Helena Kennedy also mentions that it is not about going into Human Rights law; she encourages choosing an area to your liking and expertise, being it tax or corporate law, business or entertainment, and integrating human rights in it.

Agota Bogdzeviciute

2nd Year, Law (LLB)


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