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28 Aug 2019 - SCOLAG

Whole Life Sentences – Consultation Response

The Scottish Legal Action Group works to promote access to justice in Scotland as a fundamental democratic right.

This response sets out the Group’s view on the proposed Whole Life Custody (Scotland) Bill (hereinafter, “the bill”), which has been proposed by Liam Kerr MSP.

We have considered the terms of the consultation document and have followed closely the parliamentary and public debate on the bill.

The consultation document itself makes an unimpressive case for its core proposal and, at times, is simply incorrect as to matters of law, such as the assertion that the Crown is able to appeal against a “not proven” verdict or that there is no basis to appeal conviction following the tendering of a guilty plea (Consultation Document, page 19). Given the magnitude of the proposal advanced and the effect that discourse in this area has on the public’s perception and understanding of Scotland’s legal system, SCOLAG would urge all politicians to ensure that they articulate carefully and correctly the legal principles underlying the area of debate at all times.

As to the substance of the proposal, SCOLAG does not intend to replicate the arguments advanced against the proposed bill elsewhere. It sympathises with the terms of the open letter by Dr Hannah Graham and Professor Fergus McNeill of the Scottish Centre for Crime and Justice Research (accessible here: https://twitter.com/DrHannahGraham/status/1164792998762180608/photo/1).

In particular SCOLAG agrees:

  • that the proposal is unnecessary as existing sentencing powers are already adequate to deal with those considered the “worst offenders”;
  • that the proposal interferes unnecessarily with the existing functions of sentencing judges in the High Court, and the Parole Board;
  • that no financial case has been made for the introduction of whole life sentences (although, for what it is worth the Group would oppose the introduction of these sentences even if such a financial case had been made); and,
  • that whole life sentences are akin to capital punishment and an affront to human dignity.

We also wonder whether putting someone “beyond the law” – i.e. in a situation which can be made lawfully no worse, for that would be the position in which a true “whole life” prisoner would be in – is in the interests of prison staff, inmates, or visitors.

In addition to these arguments, the Group wishes to draw attention to the terms of the judgment of the European Court of Human Rights in Hutchinson v the United Kingdom (App no 57592/08 (ECtHR, 17 January 2017)). This is a judgment prayed in aid by Mr Kerr in the consultation document.

The Strasbourg Court set out the following general principles in relation to life sentencing (the emphasis is our own):

42. …The Convention does not prohibit the imposition of a life sentence on those convicted of especially serious crimes, such as murder. Yet to be compatible with Article 3 such a sentence must be reducible de jure and de facto, meaning that there must be both a prospect of release for the prisoner and a possibility of review. The basis of such review must extend to assessing whether there are legitimate penological grounds for the continuing incarceration of the prisoner. These grounds include punishment, deterrence, public protection and rehabilitation. The balance between them is not necessarily static and may shift in the course of a sentence, so that the primary justification for detention at the outset may not be so after a lengthy period of service of sentence. The importance of the ground of rehabilitation is underlined, since it is here that the emphasis of European penal policy now lies, as reflected in the practice of the Contracting States, in the relevant standards adopted by the Council of Europe, and in the relevant international materials (Vinter and Others, cited above, §§ 59-81).

43. As recently stated by the Court, in the context of Article 8 of the Convention, “emphasis on rehabilitation and reintegration has become a mandatory factor that the member States need to take into account in designing their penal policies” (Khoroshenko v. Russia [GC], no. 41418/04, § 121, ECHR 2015; see also the cases referred to in Murray, cited above, § 102). Similar considerations apply under Article 3, given that respect for human dignity requires prison authorities to strive towards a life sentenced prisoner’s rehabilitation (see Murray, cited above, §§ 103-104). It follows that the requisite review must take account of the progress that the prisoner has made towards rehabilitation, assessing whether such progress has been so significant that continued detention can no longer be justified on legitimate penological grounds (Vinter and Others, cited above, §§ 113‑116). A review limited to compassionate grounds is therefore insufficient (ibid., § 127).

We do not accept what is proposed by Mr Kerr subscribes to the spirit of the principles set out by the Strasbourg Court.

We do accept that a system of executive review of so-called “whole life sentences”, interpreted in line with Article 3, may be considered compliant with the Convention.

We do wonder, however if, standing that position, one of Mr Kerr’s key arguments holds up.

He is concerned with “giving the public real confidence in sentencing” (Consultation Document, page 10). He says that “life should mean life for Scotland’s worst criminals” (Consultation Document, page 2). But, as Mr Kerr must accept, given the case law in relation to Article 3, even a so-called “whole life” sentence in terms of the bill might eventually see a prisoner released (any attempt to engineer a sentencing system which did not provide for that possibility would likely be, in our opinion, outwith the legislative competence of the Scottish Parliament).

We doubt whether the release of someone sentenced to a “whole life sentence” would do anything to boost public confidence in sentencing.

In conclusion, we consider the introduction of this radical change to sentencing unnecessary, unethical and regressive. We feel strongly that politicians should not seek to pander to populist sentiment in the arena of legal reform. We oppose in the strongest possible terms Mr Kerr’s proposed bill.

We are grateful to have had the opportunity to contribute to this important debate.

14 Oct 2018 - SCOLAG

Public Inquiry into Undercover Policing in Scotland

The Scottish Legal Action Group (SCOLAG) today adds its voice to the campaign for an independent public inquiry into undercover policing in Scotland.

Media reporting south of the border has found evidence of gross malpractice by undercover police officers. These include allegations of:

  • Women discovering that their partners were serving undercover police officers, in some cases, after having had children with those partners.
  • The infiltration by police officers of social and environmental campaign groups, trade unions, as well as political campaigns and interactions with politicians themselves.
  • The use by officers of the identities of deceased children.
  • Possible miscarriages of justice arising from a failure to disclose to prosecutors, and therefore, the defence, evidence obtained by police in the course of undercover activities.
  • Allegations of criminality on part of undercover officers.

As a result of the reporting, the then Home Secretary, Theresa May, established an independent public inquiry into the subject matter in England and Wales. Despite repeated requests by the Scottish Government, the UK Government has declined to extend the scope of the inquiry to cover activities in Scotland. This is despite the fact that certain officers allegedly involved in the aforementioned activities were deployed, at times, in Scotland.

The Scottish Government has relied on a recent report by Her Majesty’s Inspectorate of Constabulary in Scotland in refusing to establish an inquiry of its own. This report, however, does not provide any detailed analysis of the activities carried out on an undercover basis by officers from Scottish legacy forces.

In these circumstances, SCOLAG believes there is a compelling case for a Scottish inquiry in order to allow resolution of the fundamental human rights issues arising in relation to those who suspect they have been victims of inappropriate undercover intrusion. We have produced a briefing note setting out our position in detail.

We are presently working with Neil Findlay MSP and Liam McArthur MSP with a view to hosting an event in coming months at the Scottish Parliament outlining the case for an inquiry. MSPs from other parties have also indicated their support. We are hopeful that in time the Scottish Government will come to accept that this issue is a matter of legitimate public concern which can only be properly addressed by the establishment of a public inquiry.

29 Aug 2018 - SCOLAG

Trainees in the Criminal Courts

Recent media reporting indicates that plans are afoot to amend the current rules governing when trainee solicitors are able to appear in criminal proceedings. The Law Society of Scotland has confirmed that it is drafting regulations that would allow first-year trainee solicitors to appear in court on behalf of clients “subject to numerous safeguards”.

According to The Times the justification for this change is that the “level of new entrants to the sector is below that required to sustain the network of criminal firms providing access to justice across Scotland”.

SCOLAG agrees that action is required to address the lack of solicitors entering this important field of work. The cornerstone of our adversarial system is that an individual accused of criminality can be represented by a properly qualified lawyer who can represent his or her interests. Where there are insufficient numbers of such lawyers to carry out this work, the whole structure of our criminal justice system begins to crumble.

SCOLAG is also clear that first-year trainees are valued members of the legal profession. As was noted by Thomas Ross QC, the trainees of today are the High Court practitioners of tomorrow. Nothing said by SCOLAG should be taken as a criticism of the abilities or potential of first-year trainee solicitors.

Furthermore, SCOLAG is open to the possibility that the regulations governing areas in which first-year trainees are permitted to carry out work merit reform. A key concern throughout must be the promotion of access to justice. We welcome the opportunity to contribute to a discussion on these issues.

That said, the current plan raises several concerns.

As a matter of principle, SCOLAG does not consider it appropriate that the response to an insufficient number of suitably qualified solicitors carrying out criminal work is to, in effect, lower the qualification level required to carry out that work.

Criminal law is complicated, as are the rules of evidence and procedure which govern its proceedings. Trials are unpredictable, and even those concerning “minor” allegations often raise novel and complex issues.

It also must be borne in mind that in the era of disclosure certificates and obligations to declare, even what might be considered a “minor” conviction can have catastrophic consequences for an accused person who is convicted. This is particularly the case since, given the notable increase in non-court disposals, even the Justice of the Peace courts are left with a caseload that contains offences of a relatively serious nature. It is imperative that accused persons have their interests represented by a properly qualified solicitor in such cases. It is also in the interests of complainers and other witnesses, for whom giving evidence can be a stressful experience, to be properly examined or cross-examined by a practitioner with the necessary skillset. It is difficult to see how first-year trainees can be expected to have those skills “on arrival”.

SCOLAG’s final concern is for first-year trainees themselves. In many cases the total extent of their criminal experience may be from having studied a course in criminal law for one semester during their university studies, followed by a further one semester course on the subject of criminal litigation whilst undertaking the Diploma in Professional Legal Practice.

All the teaching in the world cannot provide the benefit of experience. At present, trainees entering the profession can rest assured that they have at least a year to accrue as much of that experience as is possible, by assisting their senior colleagues in preparation of their cases and observing their presentation. No such assurance would appear to be available were the proposed reforms to be implemented.

Instead such trainees would enter courts likely facing opponents considerably more qualified than themselves. They would be appearing in front of a judiciary already burdened with an unrealistic caseload. They would be representing individuals with a legitimate expectation that their case would be presented in optimal fashion. It is difficult to see how the proposed reforms can be said to be in the interests of first-year trainees. The question that begs to be asked, with all of this in mind, is who exactly stands to benefit from these reforms?

In the event that these reforms are to be pursued, SCOLAG would welcome details of the safeguards which the Law Society proposes to implement to protect the interests of accused persons, trainees and the profession itself.

In SCOLAG’s view, irrespective of whether the proposed reforms are implemented, more fundamental action is required on behalf of the Scottish Government to ensure that we are a country which provides access to justice for those accused of committing criminal offences. It is telling that on the same day that reports of these reforms surfaced in the press, extra funding was announced for Crown Office. That is of course to be welcomed but one must surely question why it is that increased funding seems to be so readily available for certain aspects of the judicial systems but not others.

Unless the criminal law can attract well-qualified, passionate young lawyers, access to justice and ultimately the Rule of Law itself will be undermined. This is not in the interests of lawyers, accused persons, witnesses, or society as a whole.

The issue of funding is one that can be ignored no longer. Whilst those undertaking publicly-funded work have long accepted that they will not be paid as well as their commercial colleagues, it is unreasonable to expect that a sense of public duty alone will attract the necessary quality and quantity of practitioners to criminal work. The state of criminal justice in England and Wales should serve as a warning to politicians north of the border as to what happens if cutting cost is the only objective. The time for action in Scotland is now.

31 Jul 2018 - SCOLAG

Legal Aid: Open Letter – Ken Dalling, Solicitor

Earlier this year, Martyn Evans released his “Independent Strategic Review” of the Legal Aid System in Scotland.

Ken Dalling, Solicitor, has prepared the following open letter in response.

“Dear Sir

I read with interest the detail of your “strategic review” of legal aid now published. Whilst I understand that the Law Society of Scotland, amongst others, will provide detailed responses to your conclusions and recommendations, I think a number of points can be made regarding legal aid remuneration upon which I would ask you to reflect.

Civil society in Scotland is well served by the legal profession – both solicitors and advocates – and when it comes to legal aid the cost to the public purse is actually decreasing year on year. In the criminal sphere, if a person is accused of a crime or offence and cannot themselves afford to make payment for a solicitor, arrangements are in place for legal aid to foot the bill. An accused will be defended or represented by a member of the Law Society of Scotland. In appropriate cases and in the High Court arrangements can be made for an advocate or solicitor advocate to appear. As a member of the Society a solicitor will be held to certain professional standards and will be covered by professional indemnity insurance. Clients, universally, will have the protection of the Society’s Client Protection Fund – your suggestion at p 34 that “not all legal aid lawyers are covered by Client Protection Fund” is erroneous. A solicitor will either be a sole practitioner or a member of a larger firm, and in either case he or she will be supported by administrative staff (secretaries and cashroom). The solicitor will be remunerated in terms of a private business model, as this has been universally found to be the most efficient way in which legal aid services are delivered.

Questionable conclusions

You conclude that there is no evidence to justify a general increase in legal aid fees (p 2). I find this conclusion surprising, and suggest that there is more to it than simply determining the matter of supply and demand and deciding that where there is no difficulty with supply, there is no need to acknowledge the value of the service. I note the reference you make to information provided to you by various focus groups. Whilst those who gave their time to input to your review should be commended, I respectfully suggest that ill-informed opinions should not inform policy – except regarding the need to educate the public.

The apparent adoption of the perception that criminal legal aid users “put themselves in that situation” is particularly unfortunate, as is the observation from one contributor: “I’ve never seen a poor lawyer.” Poor lawyers go out of business. Legal aid lawyers often require to be subsidised by the non-legal aid work which they or their firms undertake. Your concern about a general increase in legal aid rates being unlikely to find public support is, I feel, nothing to the point. Solicitors undertaking the valuable work required in a legal aid sphere should be fairly remunerated for the work that they do. It is surely a matter for the Government to approach this task objectively and determine what “reasonable remuneration” looks like.

You suggest that some legal aid lawyers are well remunerated. I wonder from where you draw this conclusion. The figures which you quote relate to gross payments to certain advocates and solicitors’ firms. Those figures will undoubtedly include value added tax which the firms simply pass directly to the UK Government. Although the profit which an advocate could expect to derive in any financial year may be closer to the general payment figure received, that will be far from the case in the context of a solicitor’s firm. The figures are in no way equivalent to a “wage”. I would have expected from you a basic understanding of the realities of business. You suggest that it is hard to justify a general increase in fees when “top earners” would also receive an increase. This again simply ignores the realities of a private practice delivery model: fees are paid to a firm which is responsible for the considerable business overheads that require to be met before there is any “profit”. Think rent/rates/mortgage, staff wages and pension contributions, heating and lighting, technology and cashroom costs, and of course practising certificate fees, professional indemnity premiums and SLCC/client protection dues.

Can I also suggest that, perhaps with the sole exception of VAT, the legal aid spend should be regarded as an investment, not only in the legal services industry of Scotland but also in access to justice and the rule of law. Additionally, as identified in recent independent research commissioned by the Law Society of Scotland (Rocket Science, November 2017, #DefendLegalAid), there is a significant beneficial return to the country for every pound so invested.

1992: still casting a shadow

You are dismissive of the Society’s arguments that there has been “no uprating since 1992”, and suggest that the 1992 rates relate to only 5% of solicitors’ income. I note that you are careful not to suggest that this 5% relates to solicitors’ time. It is undoubtedly the case that considerably more than 5% of that would be required. You refer to a number of percentage increases in respect of figures no doubt provided by the Scottish Legal Aid Board. I would wish you to be clear on the following:

  • Criminal advice and assistance by way of representation (time and line matters), and indeed cases reduced to summary level from solemn, are still remunerated at a base rate of £10.55 per quarter hour and base advocacy rate of £54.80 an hour; these rates were fixed in 1992. This category includes the most serious cases to be prosecuted at summary level, as well as alleged breaches of court orders and Parole Board cases, which are of huge importance to the client.
  • Criminal advice and assistance has indeed been increased by 10% to the sum of £11.60 per quarter hour during the 26 years since 1992, and civil advice and assistance has been increased from £10.55 to £12.75 during that period.
  • For solemn work involving the preparation of cases for sheriff and jury or High Court prosecution, remuneration is at the rate of £12.20 per quarter hour, increased from £10.55. Advocacy is remunerated at £72 per hour. Solemn rates were, in fact, higher until they were cut by the Legal Aid Board in order that other, previously unremunerated work could be covered.

The solemn fee increases, and the move to a hybrid system of block and time and line charges, were intended to generate an increase in remuneration and an increase in spend for the profession – which has never, in fact, materialised.

The block fees in summary cases to which you refer, and which themselves have been cut over time, were introduced at the time of summary justice reform to promote the early resolution of cases. Summary justice reform was itself successful, but none of the system savings have ever been reinvested into fees – despite that being the original intention of the Scottish Government.

Your strategic review was to be a once in a generation rethink of legal aid. It is disappointing that you have been so quick to dismiss the arguments which have been advanced for an increase in the remuneration of solicitors undertaking this work. If legal aid lawyers do “think they are the bottom of the barrel” (p 82), this can only be because it is how they are treated by their paymasters. It is hard to accept that you were unable to identify the evidence clearly supportive of just that.

Yours sincerely,
Kenneth A R Dalling, solicitor”


This letter originally featured in the Journal of the Law Society of Scotland and is gratefully reproduced with the permission of Mr Dalling.

23 Jul 2018 - SCOLAG

Interview with Angela Grahame QC

Our Convenor, Eamon Keane, recently interviewed Angela Grahame QC, the Vice Dean of the Faculty of Advocates. The subjects covered varied from the Faculty’s role in promoting access to justice, to her own personal experiences at the Bar, and her tips for young lawyers.

Her interview is reproduced below.

1. There has been publicly funded litigation in Scotland from the 15th century and the right of the poor to be represented by counsel in criminal cases can be traced to the 16th century. The Faculty’s role in ensuring access to justice has undoubtedly been significant over the course of its history and the development of the Scottish legal system. Do you think there still exists a desire to promote access to justice within the faculty amongst individual members? What is the Faculty doing today in order to promote access to justice?

The answer to the first part of that question is most definitely yes. In the first instance, across the bar you have counsel who are undertaking legal aid work. This is a choice counsel make. This work is paid far less than private commercial work. These cases have profound consequences for those who are being represented. Their liberty is at stake. Accepting instructions in these cases needs to be seen as a public service being offered by counsel.

Then away from the criminal bar you have speculative work or “no win no fee” type cases. These cases might involve catastrophic personal injury. If counsel was not prepared to work on a speculative basis then, there would be a massive access to justice issue as those who do not qualify for legal aid would simply not be represented in these actions. If these cases don’t succeed or don’t settle, then counsel simply do not get paid. Counsel spend large amounts of time and effort on these matters. Of course, counsel try and only take on cases which have reasonable prospects of success, but you cannot always be sure. There is a judgement call involved that you might get wrong. When I first called to the bar in 1995 there was not as much of this type of work about but in the absence of proper funding of legal aid and given the increases in court fees this work is now more common.

Another issue I have a particular interest in is the work of regulatory bodies and this is another area in which the Faculty is helping to improve access to justice. In 2016, when I stood for election as Vice Dean I said I would like to explore the work of these regulatory bodies (such as the Scottish Social Services Council or the “SSSC”). These regulatory bodies have a wide ambit and an important role in Scottish society. We wrote to all of the regulators and asked them if they would like to come and meet with the Dean of Faculty and me. We had a meeting at which they relayed to us their concerns about access to justice. They told us that a lot of individuals who may have fitness to practice hearings often do not attend or attend with lay representation, such as a unqualified relative. There will be a qualified lawyer presenting the case against them. The panel will have legal expertise. Yet there is no legal aid and as such often no legal representation for the person appearing before the panel. These people will often have been suspended by their employers. Insurance is likely not to extend to cover legal representation. Sometimes the unions will help but often they will not be able to as they are under pressure themselves financially. The end result is a lot of individuals are effectively left to their own devices. These people are often the sole bread winners in the families with everything to lose. The pressure can often make these people suicidal. At the Faculty we were really concerned about this from an access to justice perspective. When I started getting involved in this area, I emailed our members asking if anyone was interested in becoming involved with the work of regulatory bodies. Over 80 replied. Then we had a training day which was a big success. Our members were so keen to learn more about this kind of work that we linked up with Aberdeen University who provided our members with a course on regulatory law and practice. This has allowed us to educate ourselves about this particular field and learn much more about the law and types of issues that these panels are interested in. The SSSC has also just appointed legally qualified chairs and a large number of that intake have been advocates. I think this shows again our members willingness to become involved and tackle access to justice related problems.

2. When it comes to access to justice, whilst funding of cases and legal advice plays a large role, suitable court buildings and systems are also important. From your own experience, do you believe that the current Scottish court system is accessible for the average user?

There are two aspects to this. There is the physical accessibility issue and the issue of the recent increase in court fees.

The Lord President is obviously responsible for dealing with the actual physical set up of the buildings so I cannot really comment on that, but I would like to talk about a similar issue I have experience of which shows the importance of accessibility. There is a lift at reception at the Advocates’ Library in Parliament House. It used to be able to take you down to the Dean’s Secretariat in the basement and to the only accessible ladies toilets within the Advocates’ Library. The only other toilets for female members were upstairs in the ladies gown room, with no lift providing access. Some years ago, I raised the point, when I was co-director of Compass Chambers, that if female members have mobility problems, there may be serious accessibility problems. There are toilets for men with mobility problems that are more easily accessible. You may be wondering why the Vice Dean is talking about toilets but bear with me as I do see it as important issue! Before Christmas the issue came to a head as the lift was broken. We made arrangements through the then Faculty Superintendent and the Scottish Courts and Tribunal Services so that a female member who wishes to use accessible toilet facilities would be able to use SCTS facilities in the main part of the building. It might not seem like a big issue, but it is a clear accessibility issue and it’s about giving people dignity. I can also say that I have asked our Chief Executive to look into the possibility of gender neutral toilets. We have an old building but that is no excuse not to consider all options.

With regard to court fees, these have increased significantly and it is my view that this will in the future be shown to have a detrimental impact on the number of people able to use the courts and access to justice. The Faculty has written a Response about court fees to the Scottish Government in this regard raising this as an issue.

3. An important access to justice issue is the accessibility of the law to the average citizen (to the extent that it is clearly defined and easily understood). Do you think that the law is accessible in this sense in Scotland? What role does the Faculty have to play?

I think the Faculty does have a role to play. On an individual basis, it is down to advocates communication skills at consultation. They often have to inform those who instruct us and our clients of the law insofar as it applies to them and their case. On a broader basis, from the outset, the Dean and I thought it was important that the Faculty is a body that people are aware of. We want people to see Faculty as more open and accessible. For years we were viewed as an organisation that sits in an ivory tower and that sits apart from society. There is a commonly held perception that we are all privately educated, male and wealthy. These are preconceived ideas people have but I don’t think the Faculty has helped itself over the years if I’m honest. Enough of us have not gone out and said to people you know what, we have moved on from that. I didn’t go to private school. I’m not male. We are all self employed and our incomes vary significantly. A lot of our members don’t fit the mould people have in their heads. It’s our fault to an extent as we have never adequately reached out to the outside world. The Dean and I wanted to change this. We have written to the royal colleges, regulatory bodies, public bodies and individual people. We go to schools and Universities. We have had a series of meetings about equality and diversity issues with various bodies. We also engaged the services of professional PR consultants. We then had a big dinner called the Dean’s dinner in 2017 to introduce our members and what we do, to members of the public and other bodies. The middle corridor upstairs was cleared of all the desks (that’s a big undertaking given that the library is open 365 days a year 24/7!) We invited outside organisations that we never usually talk to just so they could get to know us better. It was great to meet so many wonderful people and to learn about what they are doing to improve our society. In turn, we got to share with them what our members do. They got to meet the Dean. They got to see our wonderful library. The Dean is himself very down to earth, he’s good with people. He presents a very different face to Faculty than one that has been presented in the past. He’s got a fierce intellect but he’s a very engaging person. He’s very funny. We have also just produced a small video of the calling ceremony. All of this was shrouded in mystery in the past. I know these are only small things but we want to make ourselves more accessible. We were very worried that people didn’t know who we were and what we did and we are trying to change that.

4. Your own practice has involved acting in various high profile public inquiries and personal injury actions along with prosecuting crime at a senior level. What principles have guided the direction of your career?

Being an advocate is a public office. That’s an important part of the job. The element of public service is hugely important. We have to remember we are in a very privileged position. We can earn a lot of money. I simply cannot understand someone who wouldn’t want to give something back. For example, I went into Crown Office in 2003 to prosecute. No-one forces you to do that. You double your work and halve your salary! Of course, you still earn a very good wage. Anyway, I did it because it is a brilliant thing to do. To be able to help society with your skills. I got so much out of it. On a small level, I’ve always wanted to commit time and effort within Faculty to committees etc. So many members of Faculty give up their time to do this. They do not benefit financially, but they do it because they want to contribute something to Faculty or society. Being Vice-Dean is an amazing opportunity to do things for members of Faculty. Not all members are earning a fortune. This role allowed me to get into a position where I could change things. Helping people is a very satisfying part of any job.

5. Access to justice and the rule of law requires a representative legal profession in order to gain the trust of the public. You are the second woman to hold the position of Vice Dean of Faculty, the fifth female office bearer and have spoken candidly about your experiences of sexism at the bar in the past. Do you think sexism and sexual harassment is still a problem at the bar and amongst the profession generally? What is being done to tackle the problem?

This is something I feel really strongly about. I remember on the very first day I was elected. There was a small ceremony. You are formally introduced. I remember I sat in the Dean’s office. We had a quick chat. He said to me “there will be things you want to do?” The first thing I said was “we need a bullying and harassment policy.” I knew there was people who had been harassed and bullied and there was nothing that could really be done about it. Everything was done informally in the past in Faculty. You spoke to your devil master on an ad hoc basis about these things but that was it. So in December 2017 our policy was finally launched. It’s now available online. We never had one before in the history of Faculty at any time since our inception in 1532! Even if I stopped being Vice Dean tomorrow I would be immensely proud of that document. There is at least now a complete framework which people can utilise both formally and informally. One of the things the Dean was keen to start too was a mentoring programme. We have since started a pilot programme in this regard that is going well. I can say also that our diversity and equality committee are incredibly busy, they are one of our most active committees. We have much to do.

If you look at the legal profession. 85% of law students at Edinburgh are female. Across all universities it is 65%. The legal profession is more than 50% female. I met with the Law Society recently and they were saying when some of the older generation retired, the percentage of females in the profession is only going to go up. But look at Faculty. This year we had two devils who are female. Last year we had one. The Faculty is not attracting women at the moment. If this does not change, we will wither from the roots up. We need to do more to attract women. This year there were fourteen silks appointed, yet only two were female. There are issues right across the board. We need to be more proactive. The Faculty has only just completed its second equality and diversity survey. We need to think about what we can do to address these problems. Sexism is a problem right across society. The bar is no different. I want to tackle this problem more effectively. We need to attract the best people. I would like not to be talking about sexism. Why is it that I am only the second female Vice Dean? The Dean has written about these issues in 2017. I think all office bearers at the Faculty need to be being asked about these issues not just me or the females. We all need to realise that we need to do something about this.

6. And finally, as you may be aware, SCOLAG has as its members a large number of students. If you could give those about to embark on their traineeships one bit of advice for a long and happy career in the legal profession, what would it be?

Keep learning and don’t be too critical on yourself. I spent many years going home at night thinking I should have phrased this or that question differently. In reality it probably wouldn’t have made a blind bit of difference! Although to be fair I think it helped me to avoid asking completely disastrous questions most of the time!

Seriously, I think people skills, teamwork and good communication are now seen as three of the key attributes for employers. It’s interesting how times have changed. In the 1970s things like mental arithmetic and the written word would have been seen as more important. I think whilst having good qualifications of course is important in the profession, it is also vitally important to have good people skills. I have had an enormous about of assistance in my career just from being nice to people right across the board. It’s so important. Sorry that’s not really one piece of advice!

13 May 2018 - SCOLAG

Comment: Evidence in sexual offence cases

On the 1st of May 2018 the Lord President announced that “rape victims should not have to appear in court”. Speaking to the BBC, Lord Carloway proposed that witnesses in cases involving sexual offences should have their evidence recorded in advance of the trial process itself with said evidence then simply being played to the jury at the time of the trial. Recorded cross-examination by the defence could take place after the accused first appeared in court. The Scottish Government is due to release draft proposals on evidence gathering for vulnerable witnesses next month. If Lord Carloway’s comments are anything to go by, then the proposals are likely to suggest drastic changes to the trial process in Scotland. The Lord President has repeatedly reiterated his radical desire to modernise the justice system, so his views shouldn’t really come as much of a surprise. In this regard see for example this speech he gave to the Law Society of Scotland’s 2017 annual conference.



The Scottish Legal Action Group is in favour of any progressive measures which improve the way in which vulnerable individuals are treated in the courts. It is also impossible to argue with the principle behind the desire for change which is ultimately to seek to improve the quality of evidence presented. One only has to read some of the accounts given by witnesses in the “Thematic Review of the Investigation and Prosecution of Sexual Crimes” by the Inspectorate of Prosecution in Scotland to realise that there are problems in this area.  That being said, the need to proceed with caution cannot be stressed highly enough. As much as it might seem unpalatable to certain politicians, the rights of individuals accused of crimes deserve equal respect to those making the accusations. In our adversarial system of proof that means witnesses require to be cross examined by the defence. The importance of this fact, although not lost on Lord Carloway, seems entirely lost on many of our parliamentarians. That is not to say that our current system is beyond reform or improvement. Indeed, changes introduced in respect of taking evidence from children on commission illustrate that change is both possible and practical. Great strides have also been made in the jurisdiction in respect of vulnerable witnesses generally. If one reads some of the reporting from the recent high-profile rape trial involving rugby players in Northern Ireland one realises that many reforms implemented in Scotland are to be commended.

However, we cannot pretend that we do not have an adversarial system, nor should we proceed on the basis that because someone makes an accusation of sexual abuse their evidence is somehow sacrosanct and beyond all challenge. The purpose of the criminal justice system is not simply to provide access to justice for victims of crime. The rights of the accused are not an inconvenience to be somehow accommodated within the trial process as an afterthought. While their intentions are undoubtedly good, the legal illiteracy of many of our politicians is at times worrying. There is at times a complete lack of understanding of the principles and practicalities inherent in the trial process.

If radical change is to happen then it is of the utmost importance that all relevant stakeholders are listened to. The abolition of corroboration debacle should serve as a lesson to our politicians that you cannot implement fundamental change without considering the wider consequences simply because it is politically expedient to do so. Charities such as Rape Crisis Scotland are to be commended for the excellent work they do in providing support to vulnerable individuals in terrible circumstances in this country. Their continued funding is essential and of course their voice is an important one. However, legal bodies and experts such as the Faculty of Advocates, the Law Society of Scotland and various bar associations need to be listened to by Holyrood as well. In the past there has been a tendency to pay lip service to these bodies while ploughing ahead with change despite their clearly articulated concerns.

The elephant in the room in this discussion of radical reform is of course funding. Lord Carloway acknowledged this himself in his interview with the BBC. The type of reform that is being hinted at is going to require substantial investment. Regular users of the courts in Scotland will have surely raised an eyebrow in respect of the suggestion of a digital evidence vault. Many courts do not have even have proper internet access at present. If politicians are serious about improving access to justice to victims of crime a good place to start would surely be increasing the funding of the Crown Office and Procurator Fiscal Service. The Scottish Legal Action Group has repeatedly highlighted how the lack of funding throughout the justice system is having a negative impact on access to justice. The absolute travesty of what is happening to justice in England and Wales at the moment as a result of chronic underfunding should serve as a dire warning to all of us north of the border.

Eamon Keane, on behalf of the Scottish Legal Group.

Eamon Keane is a solicitor and the current convenor of the Scottish Legal Action Group.

16 Apr 2018 - SCOLAG


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