A fresh approach: An interview with Lord Advocate Dorothy Bain QC

It was just three months after taking up the post of Lord Advocate this summer that Dorothy Bain QC threw something of a curveball at the profession, telling MSPs on Holyrood’s Criminal Justice Committee that juryless trials for sexual offence cases should be looked into as a matter of urgency.

Though former justice secretary Humza Yousaf was forced into an immediate U-turn after suggesting judge-only trials be used to keep the courts moving at the beginning of the pandemic, Bain told the committee that politicians were “morally obliged” to consider them now. A report issued by Lord Justice Clerk Lady Dorrian as Covid started to sweep the UK had recommended that single-judge rape trials be piloted “to ascertain their effectiveness and how they are perceived by complainers, accused and lawyers, and to enable the issues to be assessed in a practical rather than a theoretical way”. With cases piling up during the pandemic – the vast majority involving sexual offences – Bain said “radical” action is required to clear the backlog.

Predictably, her comments did not go down particularly well with many colleagues. Tony Lenehan, president of the Scottish Criminal Bar Association, told The Times that those accused of rape should be tried by a jury of their peers because such matters are “ill suited to judgment by a single mind drawn from an entirely middle aged, affluent, university educated pool of people”. Defence advocate Thomas Ross QC told Scottish Legal News that juryless trials would be an “authoritarian nightmare” for the justice system.

When we meet in the Crown Office just a few weeks after her Holyrood appearance, both the Lord Advocate and I are recovering from Covid. I have bounced back well but she is still feeling a little unwell, her sense of taste and smell troubling her. But while her voice may be soft, her resolve is firm as she makes the case that juryless trials in rape cases would not only help clear a backlog that is expected to hamper the court service until at least 2025, but deal with an inequality that is baked into the justice system too.

“Insofar as the backlog and the number of cases is concerned, there needs to be a wider debate around that,” she says. “There needs to be a wider debate on and around Lady Dorrian’s review, which recommended pilots of non-jury trials in those cases. 

“What Lady Dorrian said in the review was very important. The fact that a system is sanctified by usage may make it more difficult to change but it shouldn’t make it exempt from examination. I do think sexual crime requires a different and distinct approach and it needs to be trauma informed. 

“We need to have a properly informed debate. Judge-led trials don’t impact on the right to a fair trial [but] we need to look at the suitability of a jury to prosecute a case […] We should be properly informed by the work done by Fiona Leverick and properly informed about judges.”

The fact that a system is sanctified by usage may make it more difficult to change but it shouldn’t make it exempt from examination

Leverick is a professor of criminal law and criminal justice at the University of Glasgow whose research focuses on jury decision-making, the criminal justice system’s response to sexual offences, and the prevention of and responses to wrongful conviction. In a paper published last year she found  “overwhelming evidence” that jurors hold “prejudicial and false beliefs” about rape that affect their evaluation of evidence presented at trial. In one co-written earlier this year with colleague James Chalmers – the regius professor of law at Glasgow – Leverick found “considerable evidence of the expression of problematic attitudes towards rape complainers” among jurors.

“These include the belief that a ‘real’ rape victim would have extensive external and internal injuries and would resist attack by inflicting injuries on her attacker and shouting for help, that even a short delay in reporting a rape is suspicious, and that false allegations of rape are commonly made by women and difficult to refute,” they wrote.

For Bain, this puts women and girls – who are by no means the only victims of sexual crimes but who do account for a significant majority of the complainers in such cases – at a serious disadvantage within the criminal justice system. The Lord Advocate does not agree with Lenehan that the judiciary is similarly prejudiced, believing instead that the disadvantage complainers face could be dealt with by having a single judge oversee cases. Noting that many thousands of simple and civil cases get heard without a jury every year, she says there is “no suggestion that that’s an unfair system”.

She may well have a point and, having been commissioned in 2008 to review how sexual crimes are prosecuted – the result being a report that led directly to the formation of Scotland’s National Sexual Crimes Unit – it is clear that there are few people as well informed as Bain in this area of the law. Some are, though, and they don’t necessarily agree with her stance.

Helena Kennedy QC disagrees with the Lord Advocate about the benefit of juryless trials, instead favouring trial by jury on every occasion. 

Last year I interviewed Helena Kennedy QC, a human rights barrister whose career has had a similar focus to Bain’s on violence against women and girls and who is currently carrying out a review on behalf of the Scottish Government to determine whether misogynist abuse should become a standalone offence. Her position was that the jury system is not perfect but that the diversity of thought juries bring to the decision-making process will always make jury trials a preferable option to relying on a single judge to administer justice.

“Having a group of people bringing their experiences to bear on a problem has considerable value and creates better justice,” Kennedy told me. “That’s not to say there haven’t been times when I’ve been surprised by a jury’s verdict. Women complain that juries haven’t dealt fairly with rape trials, but that’s partly to do with the fact that juries bring the values of a community to bear on the law. That’s its strength and its weakness, but it’s a weakness I’d live with rather than just have one judge [deciding the outcome of a trial].”

It is for this reason that Bain, who stresses that any change would be for parliamentarians, not her, to determine, wants there to be an open debate about the issue that listens to all sides of the argument before deciding how to proceed. 

“I don’t reject any line of argument out of hand, but we need a properly informed, balanced debate,” she says. “It has to be informed by the legal profession [as well as] by academics’ work, and needs the input of victims too. All I say about it is, let’s have a debate about it that’s properly informed. The Lord Chief Justice says many concerns from complainers echo concerns that were expressed 40 years ago. [If we want to avoid being in the same position in another 40 years] we need to have a properly informed debate that looks at all the issues and doesn’t sanctify a system by usage […] The parliamentarians are the ones who have the solution in their hands.”

During her time as Lord Advocate Elish Angiolini QC commissioned Bain to review how sexual offence cases are prosecuted

Part of the solution is also in the Lord Advocate’s hands, though. The review she did on the prosecution of sexual crimes was commissioned by her predecessor Elish Angiolini, the first woman to hold the position of Lord Advocate. In the years since Bain reported, there has been a marked increase in the number of sexual offences cases being prosecuted in Scotland, driven in part by the success of the National Sexual Crimes Unit giving complainers greater confidence to come forward and in part by the focus on bringing historical abusers to justice. Bain says that given what has been learned about these cases over the past decade or so, the time is right for another review to be carried out.

“There had at that time [when she was commissioned by Angiolini], as there is now sadly, been a lot of concern over the way in which sexual offences cases were prosecuted,” she says. “At that time there was no understanding that a level of experience had to be brought to bear over the prosecution of these cases. They were just dealt with in the generality of prosecutors’ work.

"It was through understanding the impact this had on victims of crime and that a particular approach was needed to prosecute these crimes that Elish Angiolini asked me to look at it. I’d prosecuted many sexual abuse trials – historic sexual abuse, child sexual assault – many rape trials and had prosecuted for the first time a large paedophile ring. To my mind there’s a real need for an appreciation of the impact of sexual crime on the victims and the extent to which this affects and damages society […] It causes and perpetuates gender inequality.”

She adds: “The time has come for another review in the Crown Office of that area of work. It now accounts for 70 per cent of High Court crime. That’s increased massively – there are a lot of reasons why and we need to understand that. People are being encouraged to report sexual crime and people are being told that they will be believed – in the past children simply weren’t believed. There’s a greater appreciation that exists across the whole of society but the fact there’s more crime of that nature reveals we still have a lot to learn as prosecutors about the way we deal with these cases. The justice system has a lot to learn about these cases.”

Bain signs the parchment during the ceremony to swear her in as Lord Advocate at the Court of Session in Edinburgh.

Bain, whose husband – Lord Turnbull – is a judge in the Court of Session’s Inner House, declines to comment on whether the review she conducted was commissioned because the Lord Advocate at the time was a woman, but it is notable that in the 500-plus years prior to Angiolini’s appointment no one had thought to question the way the Crown dealt with cases of a sexual nature.

It’s entirely possible that, a year into Angiolini’s tenure, the timing was just right for a review. It’s also entirely possible that it took a woman from a working-class background (Angiolini grew up in Govan) entering a realm historically dominated by men who hailed from varying degrees of privilege to recognise that the way crimes that are disproportionately committed against women could be dealt with in a better way.

Either way, it is clear that everyone is influenced by the environments they have grown up and travelled through life in and Bain, whose vision is of a prosecution service that is “progressive, humane and has the principles of justice and mercy at its heart” – not one that is retributive for the sake of retribution – is no exception.

Like all Lord Advocates in the post-devolution era, Bain was educated in the state school system and she describes her upbringing in Edinburgh, where she was one of five daughters to a postman father and shorthand typist mother, as being far from gilded. She studied law not because she came from a long line of lawyers who expected it of her but because she had the grades and thought it would be interesting; she chose Aberdeen University because her older sister Helen was already studying medicine there. Their younger sister Elizabeth soon joined them to study psychology.

“We were the first generation to go to university,” Bain recalls. “We were all state educated and came from challenging social circumstances. My oldest and youngest sisters didn’t go to university. I had no sense of the opportunities a law degree would provide me and I had no connections in the law […] my parents weren’t professional people.”

She still did not know where a legal career could take her when she completed her traineeship at Paisley firm TF Reid & Donaldson. A move to the commercial litigation department of then Big Four firm Dundas & Wilson gave her a taste for court work and, at six years qualified, having saved enough money to see her through a year of devilling – which is unpaid – Bain transferred to the bar.

She joined the Crown Office and Procurator Fiscal Service in 2002 and rose through the ranks from advocate depute to senior advocate depute and assistant principal advocate depute before becoming principal advocate depute (a position her husband had filled between 2001 and 2006) in 2009 – the first woman to hold that particular role. As prosecutorial jobs go, that can only be topped in Scotland by Lord Advocate – the title given to the chief public prosecutor – and, after being nominated by First Minister Nicola Sturgeon in the summer, she succeeded James Wolffe in that role in June. Her mother, she says, who hailed from a mining family and whose own mother had been in service from the age of 12, finds the fact her middle daughter is both chief prosecutor and chief legal adviser to the Scottish Government “quite remarkable”.

The prosecution service does operate in the public interest and it’s important that Scotland has a prosecution service that’s progressive and humane and has the principles of justice and mercy at its heart

Given her experiences, and the kind of cases she has worked on – the Orkney child abuse inquiry, the Peter Tobin murder prosecution, the paedophile ring mentioned above, the Glasgow bin lorry fatal accident inquiry – it should perhaps come as no surprise that Bain is taking a more community-centric approach to certain crimes than some of her predecessors did.

But while her focus with sexual offences is on removing certain members of the community to make things safer for everyone else, when it comes to drug-possession offences she favours a more hands-off approach. As announced in September, she has told police that anyone caught in possession of Class A drugs, such as heroin or cocaine, can now be offered a warning rather than a charge. The driver behind the change is to address the underlying cause of Scotland’s drug deaths crisis as well as the impact drug addiction and drug-related crime has on families and wider communities – communities that are more often than not at the lower end of the socio-economic scale. It is not, Bain stresses and as the Tories incorrectly stated, to “de facto decriminalise” deadly substances.

“The Crown Office, [working with] a number of multi-agency groups, is seeking to reduce the harm caused by the consumption of drugs,” she says. “There’s a real concern about the number of deaths [so] the scope of the recorded police warning scheme is being extended to include possession-only offences of Class A drugs. It’s a proportionate criminal justice response to a way of offending and it is an enforcement of the law. It was identified as appropriate to enable those who were considered in need to be directed to appropriate support services […] It’s wrong to say it’s decriminalisation – that minimises the importance of the statement that was made, which was to give the police the ability to connect with the community at large and give people support.

“The prosecution service does operate in the public interest and it’s important that Scotland has a prosecution service that’s progressive and humane and has the principles of justice and mercy at its heart. Any decision about prosecuting in the public interest has to be informed by what those public health experts are telling us about those who are addicted to drugs. It has to be dealt with in other ways as an alternative to sending people to jail. [The prosecution service] must be there to serve every member of society, not just one section of it.”

Despite the Conservatives trying to uphold their position as the party that is tough on crime, the drug-possession issue is unlikely to prove as controversial as the juryless rape trials one, should the government choose to grasp the nettle and start the debate Bain would like it to.

Meanwhile, one controversy that was not of Bain’s making but which she will have to deal with the consequences of, is the government wrangling over whether the Lord Advocate’s dual role as prosecutor and government adviser should be split in two. That became an issue during Wolffe’s tenure when it was seen as problematic that he was both advising the Scottish Government on its investigation into former first minister Alex Salmond as well as heading the prosecution service that went on to charge him with historical sexual offences. Salmond was ultimately acquitted of all those charges.

On quite where that review will end up, Bain is choosing to keep her counsel, not even confirming whether it has got underway yet or not. “I will give the review my full co-operation,” is all she’ll say before our hour is up and we say goodbye, wishing each other well as our recovery from Covid continues.