Emma Toner

There can’t be many practising advocates who read as many legal opinions as Compass Chambers’ Emma Toner. As the editor of the Scottish Council of Law Reporting’s (SCLR) Session Cases – a definitive set of reports of cases heard in Scotland’s courts – Ms Toner casts her eyes over every single decision published by the Court of Session and High Court of Justiciary as well as the judgments given in every Scottish case heard in the UK Supreme Court. It is up to her to decide which are worthy of reporting or not.

“I read everything that comes up on the court website. Those that are picked are those that are deemed to have a significant legal principle or a novel point in them that might be of interest to practitioners or to society as a whole,” she explains.

“Some things you tend to get a feel for reasonably quickly. Sometimes the judge will say in the first paragraph that it raises a point of interest. With others, you get to the end and realise there’s nothing in there of particular note.”

As the Session Cases are a means of recording decisions for posterity, Ms Toner is well aware of how important this sifting role is. Indeed, with the Session Cases celebrating their 200th anniversary this year, she says it is very clear from looking through the archives how big a part the reports have to play in Scottish legal history as well as the development of the law.

“What’s interesting, 200 years later, is that you can see the development of legal precedent,” she says. “If you get excited about these things, it’s interesting to have a look at.”

As the first woman to hold the editorship of the Session Cases, Ms Toner is making a bit of history herself.

“As the editor of the cases I feel very privileged to do this job,” she says. “I’m struck by the importance of the historical dimension to it and the role we are playing in making it accessible to readers. I feel like I’m playing something of a role in history, particularly as I’m the first woman to do the job.”

From launch in 1821 the cases were compiled by members of the Faculty, with each volume named after the advocate who took responsibility for publishing it. In 1907 the moniker Session Cases was being used for the first time before the SCLR – a charity – was set up in the 1950s to formalise their publication. Andrew Stewart – now Lord Ericht – took over as editor in 2001, building a team of reporters and putting in place an editorial system that remains in place today.

“I read the cases online then allocate them to the reporters. I try to give them cases that are related to their practice area and I generally give them two to three weeks to [write a summary],” Ms Toner explains. “The unique selling point of the Session Cases is that every report published has been verified by the judge who wrote the opinion. Everything in that book is bang-on accurate.”

Despite being so steeped in history, the Session Cases have had to move with the times, particularly in the past year, when Scotland’s judges have had to adjust their editing process to fit with the Covid–19 times.

“I’ve had to contact the judges by email during lockdown – I would never have dreamed of doing that before,” Ms Toner says. “The way we always worked was to give a hard copy to the judge, they would take a red pen to it then it would come back to me. I’ve been emailing them to the staff that support the judges in the last year and it has worked really well.”

Away from the law reports, Ms Toner has built up a practice focused on regulatory crime and fatal accident inquiries, having called to the bar in 2009 after a spell at the Crown Office and Procurator Fiscal Service (COPFS). Unlike many of her colleagues at the bar, she never spent any time in private practice, choosing to bypass that route after getting a taste for court work while completing her COPFS traineeship.

“I trained at the Crown Office and in the second year of my traineeship I was in the fiscal’s office in Hamilton. That’s where I started appearing in court,” she recalls. “I went back to the Crown Office when I qualified, working in the High Court unit in Edinburgh. I was indicting charges, sending out charges and getting the cases prepared for trial. They were very serious cases and a lot of investigation and preparation went into them. I found that really interesting.”

A scholarship from the Faculty of Advocates helped her make her way to the bar in 2008, as part of a scheme Ms Toner says she is pleased to have seen expanded in recent years.

“In those days scholarships did exist, but there weren’t as many as there are now,” she says. “It was by no means enough to carry me through the whole year of devilling but it made a difference. I was very grateful for it and will always be very grateful for it. People’s backgrounds are different and the idea of not doing paid work for a year will always be a barrier to people to a greater or lesser extent. It would be wrong to put people off on that basis.”

Developed under the leadership of former Vice-Dean Angela Grahame QC, the Faculty now offers three separate schemes – the Lord Reid Scholarship, the Lord Hope Scholarship and the Faculty Scholarship – each of which makes an award of up to £10,000. The SCLR, which created a £20,000 educational scholarship to mark its bicentenary year, has added an extra devilling award into the mix, providing £5,000 to help someone from an under-represented background meet the cost of their unpaid year.

Meanwhile, though the pandemic has put paid to the SCLR’s plans for a Session Cases bicentenary celebration, for Ms Toner the job of producing the reports goes on. While that means she often spends evenings and weekends poring over judgments, she says it is a sacrifice she is more than willing to make.

“From my point of view, being a reporter, it’s two sides of the same job – we’re coming at things in the same way but for a different purpose,” she says. “Being forced to read all these opinions, you do find that you are far more on top of the law, and in a far more broad sense than you would have been otherwise. It is quite time-consuming to sit down and read these things, but it’s just part of my job now and it does have benefits.”