9 minute read
Dr Molly Bellamy interviews Sheila Webster
Dr Molly Bellamy interviews Sheila Webster
Sheila Webster is President of the Law Society Scotland and the sixth female President out of 54 predecessors. “So we’ve a bit of work to do!” she smiles, when I ask her about her plans for the coming year.
Sheila took up office in September 2023, as the Scottish Parliament put out a call for evidence in relation to the Victims, Witnesses, and Justice Reform (Scotland) Bill: with its contentious Part 6 featuring a pilot scheme for juryless rape trials in Scotland. The purpose of the Bill is to advocate for a more ‘complainer/victim-centred’ system to improve the complainer’s experience.
When I met Sheila last year at the beginning of her first year as President, she was bringing together a response from the Law Society to the Bill. She was in sympathy with the spirit of the Bill she said in conversation, as she too is concerned about the gap between the number of cases of rape reported and those that actually go to prosecution. “There has to be a more person-centred approach to our practices in our criminal justice system” she says, “but with the right to a fair trial”.
The Bill is based on Lady Dorrian Lord Justice Clerk’s Review Group’s report on ‘Improving the Management of Sexual Offence Cases’. It identifies a pilot scheme for juryless trails, and the setting up of a Specialist Court of National Jurisdiction across the Country, specifically for rape trials to be heard by a single judge. This model would provide trauma-informed training across the court for all staff; Judges, Lawyers, Clerks. It would, according to Lady Dorrian be the most effective way of managing a huge increase in the number of cases of rape being reported in Scotland.
Since my first meeting with Sheila, I have been following the recorded Hearings of the Scottish Parliament’s Committee enquiry that are central to Stage 1 of the Bill. On 24th January 2024 Sheila herself appeared before the Committee to present her evidence as the Law Society President. I found her original dual sympathy, for the spirit of the Bill and concern for the justice system informing a clear position at the Hearing.
When asked by one committee member about her views on Lady Dorrian’s proposal for a specialist sex crimes court, Sheila responded respectfully,
I think we understand why the Lord Justice Clerk is working for that change… I’m not sure it will deliver or that it is the solution to the problem. I think her working group itself was divided on this question so whilst we recognise what Lady Dorrian is trying to do we remain unconvinced across the profession.
When asked what she thought about the pilot for juryless rape trials she countered,
This is not truly a pilot… we are dealing with real life cases which as we understand it will not be optional.
She was then asked whether the Law Society was supportive of the Bill’s objective to improve the complainer/victim’s experience, not least in relation to trauma-informed training for legal staff, some of whose conduct had been highly criticised by complainer witnesses in an earlier hearing; victims who had found themselves on the receiving end of deeply inappropriate behaviour.
Her response was,
The Law Society is supportive of the Bill in relation to its traumainformed training, we encourage it, we provide training in it... but there is another way to approach this issue - which is to stop it before it happens, rather than fix it afterwards.
When pressed gently on this by one committee member, as a point relating to potential parliamentary regulation of professional legal conduct, she responded,
I think this (suggestion) comes too late - I think the Judiciary is (already) stepping in and that there is regulatory action. I think the Judiciary, and we as the Law Society are involved in this action and we see the most important thing (as being) to stop it happening in the first place, with training.
And finally, when asked what victims and witnesses stand to lose by there not being a jury – she responded sharply, Diversity! A jury of their peers!
One of the concerns Sheila Webster shares at the committee meeting, with peers of the legal bar (such as Vice President of Scottish Solicitors Bar Association, Simon Brown and Tony Lenehan KC president of Faculty of Advocates) was that of the ‘fair trial’. A notable “strength of feeling” in the profession revolves around that principle, which it is felt would be undermined by the proposal to substitute jury trials with single judge trials.
Simon Brown, who was questioned vigorously by one member of the Committee about the position of the Association on its resistance to juryless rape trials responded,
Our stance is we don’t believe our clients would receive a fair trial.
The same member of the committee countered, that Scottish Parliament had the constitutional power to legislate for this Bill, so on what basis could the Association have the right not to follow the Rule of Law?
Brown responded,
We are not not following the Rule of Law. Our job is to see that an accused person gets a fair trial - if we are faced with a forum where we believe a person won’t get a fair trial, we can say we won’t be a part of that…
The committee member doubled down, stating that the Association’s stance would suggest it thinks its own view should prevail over that of a democratically elected parliament. He asked again how Association members could effectively say they were not going to follow the rule of law if parliament were to agree to this legislation?
Brown responded,
We don’t see it as not following the Rule of Law. We are choosing not to take part in a process; it is a different thing.
A question of sovereignty was raised, and a distinction was drawn in the exchange between the gentlemen.
Tony Lenehan KC, President of Faculty of Advocates noted:
I can’t think of anything that has created more disquiet in the profession than the question of moving towards juryless trials in rape cases.
The women I’ve had conversations with over the past six months, in relation to The Jury’s Out? debate, all made insightful points that have been explored in full over the course of the hearings. Grazia Robertson1, Criminal Defence Lawyer, made the point that before a pilot should be considered, a proper evaluation of the changes already made to rape trials to ascertain their effectiveness needed to be undertaken. This narrative runs in contradistinction to that of rape trial reform being urgent. Lady Dorrian’s own address to the committee on 10th January candidly remarked that the original Review Group itself was divided; so framing the dynamic of the enquiry.
Another point made by Grazia was that the desire to lower the conviction rate should not be a driving force for change. This anticipated Simon Brown’s concern about “unconscious bias” of judges towards conviction.
Professor Fiona Leverick2 makes the point in her discussion of rape myth evidence, that different kinds of research approach produce different kinds of findings, that may not necessarily be commensurate. This disparity got explored, albeit often with little understanding of the research process, whereby at times the difference became an alibi to score a point. Fiona’s own in-depth approach to the subject matter seeks nuance over scale and may have been overlooked in this sense.
Abigail Bobb Semple’s critical accounts3 of the rape trial process and its impact on survivors, derived from her professional experience, resonated with the lived experiences of witnesses. And notably, Helena Kennedy’s analysis4 of a culture of misogyny, the internalisation of the rape myth by women, and women’s lack of faith in the Criminal Justice System - was borne out ceaselessly in this cross examination of ‘the juryless rape trial' during the Scottish Criminal Justice Committee process.
So what is it really about? Justice? The Separation of Powers? The Rule of Law? Sovereignty?
Is it a coincidence perhaps, that both Scottish and English Parliaments are flexing their muscle in relation to the Judiciary at the moment - with the juryless rape trial pilot in Scotland and the rejected Supreme Court decision on Rwanda in Westminster? Is there a power struggle over who is holding whom to account; a ‘particular suspicion’ as Lady Hale said ‘about any attempt to subvert the rule of law’5; whose Rule of Law?
That Parliament has supremacy is a point that was exercised by one committee member forcefully, but that it does not always choose to use it, is also the case. It did use it in the Rwanda case recently, as it may in the juryless rape trial case….
But why now? Is it to do with Sovereignty? National or International? And, terrible thought though it is - is there a sense in which the body of the female and the body of the asylum seeker serve as a good enough testing ground for the flexing of this latest Parliamentary muscle? ■
Dr. Molly Bellamy
1You can read Grazia’s conversation from the Autumn 2023 issue here: https://issuu.com/benham/docs/1942_legal_women_november_2023_hl
2You can read Fiona’s conversation from the Autumn 2023 issue here: https://issuu.com/benham/docs/1942_legal_women_november_2023_hl
3You can read Abigail’s conversation from the Summer 2023 issue here: https://issuu.com/benham/docs/1941_legal_women_august_2023_new 4You can read Helena Kennedy’s conversation from the Summer 2023 issue here: https://issuu.com/benham/docs/1941_legal_women_august_2023_new 5Jackson versus Attorney General [2006] 1 AC 262
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Shiela Webster,
President of the Law Society Scotland
