Thoughts on the 21st Century Bar Conference, 2nd December 2022

The theme for this year was “Doing the right thing, for the right reasons”.?The theme was further expanded on in the 4 chapters: an introduction, “righting wrongs”, “virtuous conduct”, and “the future”.

This short piece is not to give a full account of the day: I could not do justice in writing to the time, effort, and skill of the contributors evident in real time; you had to be there.?Further, the shorter treatment in this piece of some of the talks ought not to be seen as a negative reflection on the issues or the speakers and their able presentations.

Rather, I wish to record some personal insights from the day, which might otherwise be lost.

The Keynote and crime. The first was the electric juxtaposition of the talks given by the Lord Advocate, Dorothy Bain KC, and Frances McMenamin KC.?Both of these eminent lawyers eloquently described threats to the rule of law, albeit from different perspectives and with markedly contrasting conclusions, which (I think) bring into view matters of constitutional importance, as well as radically different political philosophies.

The Lord Advocate described the frankly shocking statistics published by the World Health Organisation in 2021 than estimated 1 in 3 women worldwide have experienced either physical and/or sexual intimate partner violence or non-partner sexual violence in their lifetime, and that nearly 2/5ths of all murders of women are committed by intimate partners. The Scottish courts have obligations under the ECHR to enact and apply effective laws to investigate and prosecute (among other crimes) rape. There were some 33,425 charges with an element of domestic abuse in 2020-1. In the same period, 2,176 rapes and attempted rapes reported to the police; of those, 152 were prosecuted with 78 convictions. The conviction rate- of around 50%- is lower than the 88%-91% conviction rate. Underlying these statistics, in the Lord Advocate’s view is the “tacit acceptance of the fact that men are violent to women” and a failure of the judicial process.?As well as the existing “rape shield” provisions (ss274 and 275 of the Criminal Procedure (Scotland) Act 1995), the Lord Advocate commended the changes proposed by Lady Dorrian’s review of the management of sexual offence cases in Scotland, especially specialist courts, in which a judge would sit without a jury.

Mrs McMenamin raised equally fundamental points: that the rule of law, as experienced by the complainers and the accused in each case brought before the court, ought to be based on facts and not emotion, political pressure, or fear.?The numbers of solicitors practising criminal law had been decimated by years of underfunding, resulting in Scottish citizens being less able- and in some cases unable- to instruct local solicitors.?The lack of criminal trainees and solicitors meant that the next generation of both criminal solicitors and advocates is under threat.?The Bar itself was struggling to meet demand because so many Advocates are now serving in Crown Office, and so much essential work (amongst other things to make the “rape shield” work fairly) was being done for no pay.?The backlog in trials meant that both complainers and those they accused were waiting years for the outcome of their cases, with accused often on remand for periods much longer than they should be.?Reminding us of the presumption of innocence, Mrs McMenamin asked what would happen if there were no one to provide effective representation for our fathers, brothers, or sons if they were accused of a sex crime??On a different note, the graphic failures in the prosecution of sexual offences, in which complainers had been bullied or browbeaten, were vanishingly small exceptions to the rule, given the protections afforded to complainers by the “rape shield”.?Whether the application of the “rape shield” was consistent with an accused’s presumption of innocence was an open question, particularly in light of other changes (including the modern application of similar fact (“Moorov”) corroboration and the forthcoming abolition of the not proven verdict).?Finally, Mrs McMenamin questioned why the accused in sexual crimes were to be treated differently than in other cases: trial by jury was an essential bulwark against oppression (I had “Wilkes and Liberty” ringing in my ears at this point, as well as thoughts on juries being an antidote to “groupthink”, described below).?

These different perspectives ought not to be seen as opposites. The rights of both complainers and accused ought to be protected.?If it weren’t obvious before, the talks by the Lord Advocate and Mrs McMenamin confirmed to me that specialist courts, trial by jury, the not proven verdict, the funding and availability of legal aid and the prosecution system, corroboration, the independent representation of complainers, and whether the presumption of innocence of those accused of crime is adequately protected are constitutional matters and ought, in my view, urgently to be considered together, to achieve the right balance between utilitarian or outcome-driven considerations and due process.?It is not hyperbole to say that these matters are central to the fair operation of our liberal democracy.

?Ethics and inclusion.?Another juxtaposition, arguably, was with my own talk on ethics and inclusion.?The central idea was that the collective mindset- or “groupthink”- tends to lead to ethical fading and bad decisions with poor outcomes for individuals, organisations, and society; recent studies have shown a litany of corporate failures, including many recent Scottish examples, that may be blamed on the collective mindset.?Diversity, which is the art of thinking independently together, affords more opportunities to learn different points of view, increase professional standards, and make better decisions.?Psychological safety- the ability to speak up and not to be punished for having a differing point of view- is an essential condition for diversity, and for combating the collective mindset.?Psychological safety is not easy and is not all about being nice: indeed, psychological safety may result in productive conflict and working out how reasonably to agree to disagree.?For diversity and inclusion to flourish, good governance and accountability are required, to prevent the re-emergence of the collective mindset. ?These ideas are not new and are also central to the effective functioning of a liberal democracy: see Chapter 2 of John Stuart Mill’s On Liberty:

If all mankind minus one, were of one opinion, and only one person were of the contrary opinion, mankind would be no more justified in silencing that one person, than he, if he had the power, would be justified in silencing mankind... The peculiar evil of silencing the expression of an opinion is, that it is robbing the human race; posterity as well as the existing generation; those who dissent from the opinion, still more than those who hold it. If the opinion is right, they are deprived of the opportunity of exchanging error for truth: if wrong, they lose, what is almost as great a benefit, the clearer perception and livelier impression of truth, produced by its collision with error.

An interactive quiz, using Sli.do afforded the opportunity to reflect on how to challenge the dominant opinions of a group in a reasonable but meaningful way.

Governance.?Almira Delibegovic-Broome KC, Chair of Justice Scotland, eloquently talked of the intertwining of gender equality and good governance, the present (lamentable) lack of gender equality in leadership roles in the legal profession (including the Faculty), and what might be done to meet that lack.?

Solicitors’ negligence.?The talk given by Chris Paterson, Advocate on solicitors’ negligence picked up on the importance of due process: those giving advice, making representations, or deciding cases ought not to start with damages and work backwards; rather, the starting point is with the facts and then addressing liability before moving on to causation and any loss. ?His treatment of the UK Supreme Court case Meadows v Khan [2022] AC 852 brought us up to date and very much the wiser.

Personal injury.?Bruce Langlands, Advocate dealt with Qualified One Way Cost Shifting (“QOCS”), another recent seismic shift in the justice system concerning the funding of civil claims for damages for personal injury.?As Bruce set out so well, QOCS will have a huge, but as yet unknown, impact on access to justice, due process, and the conduct of the parties to litigation. When might a pursuer’s conduct be so unreasonable that QOCS ought to be departed from??Will defenders tender earlier and more often? What will the role of fraud be? Watch this space…

Adult financial protection. With a lightness of touch, Roddy MacLeod, Advocate’s talk on the serious matter of Adult Financial Protection explained the extraordinary case of Thomson v Warwick [2022] SC Inv 31, demonstrating the protection that lawyers and the courts can offer to the most vulnerable in society.

Pro bono. I have written and spoken at length in recent weeks about the Faculty’s Free Legal Services Unit, and the present need for pro bono legal advice and representation.?I should apologise for the pro bono/U2 joke.?I am, however, unapologetic about using the Conference as another opportunity to get my message across.?In-house lawyers are well-placed to contribute to pro bono legal work.?On top of that, my recent conversations have let to the germ of an idea: as well as the need for more and better data on the unmet legal need in Scotland, perhaps there ought to be a framework for pro bono work in Scotland that connects those in need with the right service, reduces friction in that connection, closes the gaps in the offering, and avoids duplication.?That is a conversation I will be having with interested parties in the new year.?

?The final chapter of the day concerned the future.

Devils.?Rachel Breen, Alex Critchley, and Ross Mitchell, Devils, shared their perspectives on devilling.?Their inclusion is because they, and the other devils and junior Members, don’t just have present needs and will be practising long after I and my generation have hung up our wigs, but also that future leaders are likely to be drawn from their ranks.?They need to be heard and start being part of the conversations about how the profession is and ought to be.?They ably gave talks on gender parity, diverse experience before coming to Faculty, and how practising at the Bar is different from practising as a Solicitor Advocate.

Junior Bar Association.?The discussion in the last paragraph applies to the JBA, today represented by Emma Boffey, Advocate, Fergus Whyte, Advocate, and Antonia Welsh, Advocate. Although a new organisation, they have a great deal of potential to organise themselves, be heard, and to influence and improve the lot of the junior Bar.

The day was closed with generous words from Vlad Valiente from the In-House Lawyers Committee of the Law Society of Scotland. Thanks also to the Chairs, Graeme McWilliams and John D Campbell KC.