Changing face of the courts

Dame Margaret Kidd QC, the first woman admitted to the Faculty of Advocates, was a lone female presence at the Scottish bar for 25 years until 1948. In April 2016, Lady Dorrian was appointed Lord Justice Clerk, the first woman to hold one of the top two judicial positions in Scotland and one of now 10 women out of 34 Senators of the College of Justice.

While most would agree that the intervening 68 years have seen a radical shift in attitudes towards gender equality and the career advancement of women, there has been more debate over whether Scotland has dragged its feet over the promotion of women to the bench.

Admitted to the Faculty of Advocates in 1981, when there were still only 10 or so practising female advocates, did the then Leeona Dorrian experience many gender-related obstacles to her career? Apparently not. “It’s quite difficult to say, but I suppose there were to a degree, in the sense that it was less familiar to have women appearing and conducting cases. There was some sexism but of a modest degree. There were occasionally in criminal cases some clients who were a bit surprised to have a woman representing them, but by and large I didn’t encounter any real difficulties.”

Nor does she attribute her rise to any particular pioneering spirit, as opposed to taking the sort of opportunities that most rising young advocates would hope might come their way. These included a standing junior counsel post from 1987 to 1994, three years as an advocate depute from 1988, silk in 1994 and appointment to the Criminal Injuries Compensation Board from 1997 to 2001. She became a temporary judge in 2002, a senator in 2005 and was promoted to the Inner House in 2011.

Although her intention was always to go to the bar, “Beyond that I have never had a plan. I have just done the work that has come my way and taken the steps that it seemed sensible to me to take at the time.

“I think becoming an advocate depute was probably a pretty critical point. I was the first woman to be appointed. That was an important milestone, I think, and I would identify that as being a very important step in my career, but so were others like taking silk or being on the CICB or a variety of other things. It’s difficult to single anything out.”

Her career advice to young lawyers starting today is similarly matter of fact: “Work hard, be enthusiastic, and take the opportunities that come your way.”

That said, Lady Dorrian will be keeping an eye on the future composition of the bench. “We now have a reasonable proportion of women on the bench, if you look at the historicity of it having been unusual for me even to have been at the bar in the early 80s. But there’s no room for complacency on that front and we do have to look at how the figures maintain and continue, because if the argument is that there have not been women on the bench because it takes time for women to have become common enough in the profession and make the progress through to reach the heights of seniority where they should be, if that’s valid then we should see more women being appointed to the bench, so we shall have to wait and see. The proof of the pudding will be whether the figures do now start to increase, at all levels.”

Digital advocate

Observers of change in the Scottish courts have more fundamental matters to follow than gender balance. Structural reforms in both civil and criminal courts have combined with new procedures, and the digital revolution, to shake up many established practices. The Lord Justice Clerk, an enthusiastic adopter of IT who prefers a memory stick to a cardboard box for her case papers, is playing a significant role in furthering this process.

A member of the group under Lord Carloway that produced the 2015 Evidence and Procedure Review, proposing among other things a radical shift to digitally recorded evidence in criminal proceedings, she now has responsibility for leading the work of developing the ideas there set out.

“There are two elements to this,” she explains. “One is that we are examining practice generally, to see if there are areas where we can improve what we do, or what we can already do within the system as it stands. And the second is to take forward the suggestions made in the Review.

“We are consulting widely within the profession; we are hoping to work hand in hand with a view to developing the best way to take matters forward towards proposals that may require legislation. These will be developed with the profession; we are not looking to impose something on a reluctant profession. We actually have very significant feedback of a positive kind from both the bar and the Law Society of Scotland, and indeed the Crown, so we are optimistic that we will be able to take this forward in a collaborative way.”

A major potential sticking point was the threat, as perceived by criminal defence lawyers, to their ability to cross-examine. Dorrian believes this hurdle can be overcome. “We have done our best to make it absolutely clear that there is no intention to try to remove or unduly curtail the right to cross-examination. And I think we have been successful in explaining to those who have concerns the valid reasons behind the proposals, and that they will not be such as to impinge on the fairness of the trial from the accused’s point of view. We are very clear that that can’t be done.”

Civil or criminal, Dorrian is “very keen that we move towards a paperless court” – while recognising that this requires significant changes to the way the court works, not to mention keeping on board the people who run it. “You can’t just turn it overnight into a utopian IT/digital court. But we are getting there and I think increasingly people are becoming more comfortable with working digitally.

“I did a stage in France last year with the Conseil d’État and Cour de Cassation, and I was very impressed there that when the court met to discuss its cases, they all had their judicial laptops, the decision or case they were working on in front of them digitally. It’s an effect of the centralised system they have in France that they could do that work from home or from their own local area without necessarily having to come to Paris. So I’ve looked at what sometimes is available in other jurisdictions, and that helps us see what sort of thing we might want to introduce here.”

The reshaped court in practice

What of the changes already in place? How is the new court system living up to the vision of the Gill Review? So far, so good, is Dorrian’s assessment, though it is still early days, and her own experience mainly relates to the criminal work of the Sheriff Appeal Court. “Before I was Lord Justice Clerk I was the administrative judge for criminal appeals, and so I was and am in regular contact with the President of the Sheriff Appeal Court to discuss any issues which arise, such as questions over jurisdiction. Obviously I’ve kept an eye on the figures in the Sheriff Appeal Court, and certainly the criminal side of things appears to be working very satisfactorily.”

For civil business, the impact of the new Court of Session jurisdiction threshold has still to be felt, as actions raised ahead of the change continue their progress. I ask whether it will have an effect on the character of the court, making it a more exclusive place to litigate.

“It will have an effect on the character of the court by removing what has been a significant part of the day-to-day throughput of cases, but the reality is that the vast majority of these cases settled, so from the point of view of court hearings it’s debatable whether the effect is going to be very substantial because the cases which tend to proceed are the very significant cases of catastrophic injury and the like. Those will remain in the Court of Session. With the other cases, the 97% which settle without a proof, there will be an effect in the sense that time spent by judges dealing with case management will be saved, but from the point of view of the court overall I wait with interest to see what will happen. In theory, it should free up some court time for other business and assist us with the efficiency in how we deal with other civil cases, but I think it’s early days.”

Professional standards

I raise the possibly sensitive subject of solicitor advocates, who sometimes feel they are being singled out for criticism by the bench. Does the Lord Justice Clerk think there is an issue of professional standards there?

“I think one has to be alert to maintaining professional standards across the board, whether for solicitor advocates or members of the bar. And if there are issues occasionally arising in which it is felt that any member on any side of the profession falls down, then the court has a duty to make observations about it. The court is always concerned about standards in the High Court, but that applies across the board to standards of advocacy in the High Court, not simply in relation to solicitor advocates but in relation to advocates and to the Crown. I don’t think that there is an issue that we have in relation to solicitor advocates other than the issue that has recently been addressed” (the pending Act of Adjournal covering advice on the options for representation at trial).

All part of the job

Another statutory responsibility of the Lord Justice Clerk is to chair the recently established Scottish Sentencing Council. How is its work progressing?

“This work has been very interesting,” Dorrian replies. “We’ve been looking at sentencing councils or commissions elsewhere and the kind of guidelines they have. We don’t want just to incorporate some other jurisdiction’s guidelines and put a kilt on them. We want to develop guidelines that are appropriate for the Scottish system and the people it serves.”

As a new body starting effectively from scratch, the Council is looking at guidelines elsewhere, as well as assessing what would be suitable subjects for early guidelines. “We’re looking at the format they would take and quite an amount of work has been done by way of research and workshopping amongst the Council to look at what we see as the best way of taking that forward. We are working on a programme of when guidelines will start to be delivered.”

Dorrian readily assents to the proposition that there are a lot of additional demands of this nature nowadays on our senior judges. She herself also has a seat on the Scottish Courts & Tribunals Service board, as well as time-consuming duties on the programming board which schedules and manages court business and monitors the efficiency of the system. And there are other additional tasks. Is there a danger, then, that these take up too much time?

“There is a risk about that, because year on year there seem to be more and more of these responsibilities. And I certainly want to make sure that I don’t allow those to develop at the expense of time spent in court assisting to develop the law, and I’m sure the Lord President is in the same position. How successful one can be in doing that, I don’t yet know. I’ve only been in the post for a few months, and so far I’ve been managing to appear in court pretty regularly as well as undertaking the other obligations that come with the office. I hope to continue to be able to do that, but again time will tell.”

That balance has been kept despite being “inundated since taking up office with people asking me to do things”. One such invitation arrived from the Society, to deliver the opening keynote address at this year’s Leading Legal Excellence conference on 30 September, and was promptly accepted (as was the request for the opportunity to carry out this interview). What can solicitors expect her to discuss on the day?

“I’m hoping to be able to address the role of the solicitor in a 21st century system, because I think there are some aspects and areas in which the role of the solicitor is perhaps not quite at a crossroads, but where there are decisions which the profession is going to have to make. We’ve seen lots of changes of work models, with substantial Scottish firms being taken over by firms from other jurisdictions and so I’m hoping to look at that.”

Does that have a bearing on court practice? “That’s what I need to think about!”