Thomas Ross QC

A serious charge. So how does it look from the inside?

Let me first describe the lens through which these observations are made. I have practised at the Scottish bar since 2000 – exclusively criminal trials (around 300) – almost always in Glasgow High Court. I claim no real insight into the workings of the civil courts – or even the criminal trial courts north of Maryhill.

Secondly, I am in no way qualified to judge what misogyny is – admittedly an inauspicious beginning for an article with the title above. If Rape Crisis alleges a culture that includes hatred of women – then the charge is easily answered – 100 per cent not. I suspect however that the issue is more nuanced.

In short, all I seek to do is to identify possible symptoms of “a culture of misogyny” or of “entitled, arrogant attitudes”. These symptoms are probably non-specific – they could be attributable to a number of causes – but if they can be easily identified by me – and recognised by others – then perhaps it can be concluded that Faculty could be doing better.

As a solicitor my first contact with the Faculty of Advocates would have been around 1990. I have a vivid memory of being in the Ingram Street building in the company of three female QCs – Frances McMenamin, Ruth Anderson and Rita Rae. If there were three busy female silks doing criminal work in 1992 – I suppose we should expect there to be 20 in 2022? Not so. At the most senior end of the criminal bar – the multiple accused murders – serious organised crime cases – etc – it is very rare to see any female leading counsel at all. Take your pick from the same group of 10 white males – aged 55 to 75 – and you are unlikely to get the participants wrong.

The position is very different in sexual prosecutions – where a small group of extremely talented and courageous female advocates do almost all the rape cases – one trial after another. Having accumulated all that sexual trial experience, are they the first choice when the crimes become exceptionally serious? Well no. I remember a five accused trial a few years ago where it was alleged that a group of Eastern European males had serially abused a 15-year-old female child. The accused were represented by five middle aged male silks – each assisted by a female junior – like a magic act from 1970s variety TV. The optics could not have been worse. Goodness knows what the jury made of it as each of us rose in turn to cross examine the 15-year-old complainer over three or four days. I said at the time that it should have been five female silks conducting the cross – but there weren’t five female silks doing that kind of work – maybe not even three like 1990.

What are the reasons for this? The available data does not seem to support a higher rejection rate in the case of female applicants for silk. My impression is that many able female candidates – who have proved themselves more than worthy of the rank and dignity of senior counsel – simply don’t want to apply at all. Financial considerations undoubtedly play a part – if you are regularly instructed in the sort of cases for which sanction to employ senior counsel would probably not be granted – its a huge step to walk away from it. I would be a huge gamble for anybody – absolutely enormous if you are a single parent or the major source of the household income.

It is also only fair to observe that in 2022 many advocates – male and female – leave Faculty before they gain the experience that would justify an application for silk. Under the SNP, Scotland has become a country of BIG government – lots of prosecutorial jobs – lots of judicial jobs – all with the certainty of a fixed salary, paid holidays and sick leave – AND (a big and) for sheriffs and judges – a pension on retirement. It is no surprise that those packages are proving attractive to more and more female lawyers – who may otherwise have stayed at Faculty and become the Frances McMenamins or Dorothy Bains of their generation.

Up to now I have set out contributory factors in the interests of balance. But what of the charge that there is a “culture of misogyny” at the Faculty of Advocates? I’ve already dismissed any suggestion of hatred of women but if misogyny extends to the creation of an atmosphere that can be less than welcoming to women – and sometimes slightly hostile – then the charge is less easy to dismiss outright.

I think of a high-profile case a few years ago where there was a single female junior – acting up as senior. The only non-silk leading in the case and the only female – an intimidating situation even for the most robust amongst her number. Could it be fairly claimed that her five experienced senior colleagues did everything to help her in that intimidating situation? Absolutely not. Sadly there was some evidence of the “entitled, arrogant attitudes” that Rape Crisis alleges. Admittedly this was only one case – hardly scientific – but if a relatively busy trial counsel cannot think of a recent case where ANY female silk was acting for a co-accused then surely the issue merits further consideration.

What of interaction between male and female counsel during court downtime? In Glasgow we have an exclusively female common room – I don’t know whether the demand for this reflects a wish on the part of our female members to avoid spending time in the main common room – but it would not be a complete surprise if it did. Things are undoubtedly much better in 2022 – but it would be a lie to say that there is not vulgar language in the common room – or the odd off colour joke. Probably ‘gallows humour’ – an attempt to throw off the heavy emotional burden of conducting cases with distressing evidence – but it could be off-putting for some. Even the physical lay-out of the common room can be potentially intimidating - usually the experienced male silks around the table in the spotlight – everybody else in the margins fighting for the light in their shadow. I confess that on these points I am in no way blameless.

One final point – the Dean and Vice-Dean are the face of Faculty – almost exclusively a male face. There has never been a female Dean of Faculty. In my 22 years – only two female Vice-Deans – Valerie Stacey (Lady Stacey) and Angela Grahame. None of this should be taken as criticism of our current office bearers – I know them to be committed to change – but if our current system of election of office bearers is so obviously failing to produce female leaders – isn’t it time to rip it up and find a different way? I have no wisdom to share, I suspect that we need to bring people in from other organisations who have faced up to the same problems and conquered them.

I wrote this for one reason: you can’t make things better until you face up to the fact that you are have a problem – and it has to start now.

Aspiring female advocates can look at Lady Dorrian (the Lord Justice Clerk) and Dorothy Bain QC (Lord Advocate) and many many others. The Faculty of Advocates regularly benefits Scottish society by helping to produce dynamic powerful successful women – who become role models for young women everywhere. But we could do better – and it’s long gone time to get busy.

This article first appeared on the Scottish Criminal Law Blog