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More feminist judges could change outcome of legal cases

Professor Rosemary Hunter of Kent Law SchoolFeminist Judgments: From Theory to PracticeLegal judgments could end in different outcomes if more senior feminist judges are appointed to the UK’s courts, according to a new study.

Feminist scholars re-examined 23 judgments in key English cases such as rape trials, child custody in divorce, same-sex marriage, asylum and wearing headscarves in schools.

The Feminist Judgments Project, led by the University of Kent and Durham University, found that different outcomes might have been achieved in some cases by applying a feminist perspective to the judgments.

More feminist judges were needed to improve decision-making in legal cases and bring greater diversity to the judiciary, the researchers said.

There is currently only one woman, Supreme Court Justice Baroness Brenda Hale, on the UK Supreme Court, and only six women have ever sat in the Court of Appeal or House of Lords (now the Supreme Court). Women make up 20 per cent of the judiciary as a whole and in the senior judiciary there are 21 women and 161 men, the researchers said.

The research findings will be officially published on Thursday 11 November in a new book, Feminist Judgments: From Theory to Practice, which is being launched by Baroness Hale at Matrix Chambers, Gray’s Inn, London.

The work was co-ordinated by Professor Rosemary Hunter of Kent Law School, University of Kent and Professor Clare McGlynn and Dr Erika Rackley of Durham Law School, Durham University. It was funded by the Economic and Social Research Council.

Professor McGlynn wrote the alternative feminist judgment in the 2001 case of R v A where the House of Lords overturned Labour government legislation restricting the use of sexual history evidence in rape trials.

Professor McGlynn said: ‘There were no women judges in the House of Lords when they decided to overturn the laws which had been adopted to make rape trials fairer.

‘This lack of diversity meant that the judgment was not seen as legitimate by many women’s groups.

‘My feminist judgment shows that the restrictions on questioning about past sexual activity are compatible with human rights and did not need to be overruled.

‘A more representative judiciary, taking into account the views and perspectives of the whole population, could reach fairer decisions.’

Women currently make up around 45 per cent of solicitors and 31 per cent of barristers in England and Wales, the researchers said.

The researchers added that around 11 per cent of solicitors and barristers in England and Wales were from black and minority ethnic communities and that no one from this background has ever sat in the Court of Appeal, House of Lords or the Supreme Court.

Dr Rackley said: ‘These feminist judgments provide a new twist to famous cases and show us what the law might look like if there were more feminist judges.

‘They illustrate how important it is to have greater diversity in the judiciary and legal profession.

‘They also indicate how the quality of judicial decision-making might be improved by including the views and perspectives of under-represented groups in society.’

Professor Hunter commented: ‘We found that applying feminist principles to the cases we analysed would in some instances have changed the legal outcome.

‘For example, in the case of YL v Birmingham City Council, the decision to remove an elderly woman with Alzheimer’s disease from a care home would have been reversed.

‘In some other cases, the feminist judgment agreed with the original outcome, but reached that result by quite a different route.

‘However, in all cases the conclusions were reached within the constraints of precedent and legal rules.’

Supreme Court Justice Baroness Brenda Hale said: ‘Reading this book ought to be a chastening experience for any judge who believes himself or herself to be both true to their judicial oath and a neutral observer of the world.

‘If lawyers and judges like me have so much to learn from reading this book, then surely other, more sceptical judges, lawyers and judges have even more to learn.’

Feminist Judgments: From Theory to Practice is published by Hart Publishing (ISBN: 9781849460538; Pbk; £22.95)


Story published at 1:24pm 11 November 2010

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