Misogyny is damaging Scotland's progressive image - Dani Garavelli

In 2019, Miss M - a rape survivor, who fought and won a civil case against her attacker - was invited to talk to the Faculty of Advocates about her experience of the criminal justice system.

The former St Andrews University student had been diagnosed with PTSD as a result of the trial four years earlier when a jury decided the case against fellow student Stephen Coxen was Not Proven. She won the civil case against him in 2018 and has since campaigned for less aggressive cross-examining of complainers and the abolition of the Not Proven verdict.

“I can still see the person who cross-examined me,” she told the lawyers from Edinburgh and Glasgow. “His words have stayed with me for five years. When you are standing there with the person that raped you just metres away, having relived the details to a jury, you are in the most vulnerable position that you can be, so to be called a liar, when you’ve spent years getting to that point, feels like you are the one on trial.”

Miss M was glad of the opportunity to share her experience - difficult though that was - with professionals who seemed, on the face of it, open to change.

Misogyny is damaging Scotland's image. Picture: Getty Images

Last week, however, her confidence in the Faculty of Advocates was damaged after a Daily Record story revealed Brian McConnachie QC, a high-profile lawyer, who has been involved in both prosecuting and defending in rape cases, had been brought before a disciplinary committee in relation to conduct in the very court her own criminal case had been heard.

McConnachie’s behaviour - as outlined in the newspaper report - was shocking. Minutes after defending a rape accused in October 2020, he sent a sexually explicit photograph to a woman from the toilets of the High Court at Livingston.

On the same date, he sent a WhatsApp message suggesting another QC had once said to him he’d “shag” Sandy Brindley, the chief executive of Rape Crisis Scotland. “I might shag her just to have something over her,” McConnachie went on, “but I wouldn’t enjoy it.”

Equally disconcerting, however, was the disciplinary committee’s response. It ruled McConnachie, one of Scotland’s top legal aid earners, was guilty of “unsatisfactory professional conduct” only in relation to the first part of the message which showed “disloyalty” to his fellow advocate. This behaviour did not, it said, meet the bar for the more serious charge of “professional misconduct”.

Brian McConnachie QC. Picture: PA

Meanwhile, it said the second part of the message, while “distasteful”, “concerned only McConnachie’s feelings and wishes about hypothetical sexual activity that he might engage in”. Because it was private communication, it didn’t directly concern the Faculty.

The committee dismissed the complaint relating to the sending of the explicit image because, though still in the court building, McConnachie sent it at 4.01pm, one minute after the end of his working day. He was found guilty of unsatisfactory conduct for calling a client a “lying c***”. Sanctions have yet to be decided but he could face a fine of up to £3,000.

The Faculty’s hands-off approach to McConnachie’s conduct has caused widespread concern.

James Chalmers, professor of law at Glasgow University, says he believes the second part of McConnachie’s text about Brindley should be a matter for the Faculty.

Gordon Jackson QC. Picture: Jeff J Mitchell/Getty Images

“If the reports are accurate, what the Faculty seems to be saying is that this is a private sexual fantasy,” he says. “I can see that argument if someone simply said in a WhatsApp message that they found someone attractive, but that’s not what is alleged here. This is an allegation of wanting to sleep with someone to have something over her. It’s that desire to use sex to have power which I think could bring the Faculty into disrepute.”

For Miss M, the escalating row is personal because it speaks to her own experience. She points out that, in 2015, McConnachie was criticised by a judge for calling a rape complainer a “wicked, deceitful, malicious, vindictive liar”.

After his client unsuccessfully appealed against his conviction, Lord Carloway said: “The manner and length of examination and cross-examination give cause for concern in relation to the treatment of a vulnerable, or indeed any, witness, testifying in the criminal courts.”

McConnachie’s more recent conduct has renewed her concerns. “I think what he did [at Livingston] was inappropriate whether he was working or not. He was still in a work setting,” she says. “It shows a complete lack of respect for the victims at that trial.”

Roddy Dunlop QC. Picture: Jeff J Mitchell/Getty Images

Miss M is also upset because - like hers - the case McConnachie was defending ended with a Not Proven verdict. In the past, the QC has spoken out against moves to abolish it.

The arguments around the Not Proven verdict are complex, but Miss M says the events of the past week make her wonder about some advocates’ openness to the possibility of change.

“Apart from the QC in my trial, I’ve always had quite positive experiences of the Faculty,” she said. “After I spoke to them, some of those present became quite emotional and said: ‘We never get to hear from the women we cross-examine. This has been very powerful’. But now I am questioning all that.”

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The furore over McConnachie came in a bad week for women in Scotland. Less than 48 hours earlier, two journalists had walked out of the Scottish Football Writers’ Association (SWFA) awards when the after-dinner speaker Bill Copeland, a former criminal lawyer, told sexist and racist jokes.

And a few weeks before that, the Faculty finally decided Gordon Jackson QC was guilty of professional misconduct after he was filmed naming two of the complainers in Alex Salmond’s trial on an Edinburgh to Glasgow train. It took two years for them to reach a conclusion and there is still no decision on a sanction.

Meanwhile, Baroness Helena Kennedy, head of a working group which has recommended the introduction of a Misogyny Act, said she was shocked by the scale of the problem in Scotland.

All of this cannot help but damage the country’s image of itself as progressive. It also undermines bona fide attempts to improve the criminal justice system for victims of sexual offences.

In the last few years, there have been ongoing discussions on legal reforms, including scrapping the Not Proven verdict and the requirement for corroboration, both of which are believed by campaigners to make it more difficult to prosecute and convict alleged sexual offenders.

A cross-justice review group, chaired by the Lord Justice Clerk, Lady Dorrian, also recommended a new juryless trauma-informed court be created to deal with serious sexual offence cases in Scotland.

Rape Crisis Scotland claims Not Proven verdicts are disproportionately used in rape cases perhaps because juries wrongly see them as a half-way house between conviction and acquittal. Other research suggests juries sometimes opt for Not Proven to send a message to complainers that they don’t consider them liars, although complainers do not read it that way. Rape Crisis Scotland also believes the requirement for corroboration is a barrier because most sexual offences take place in private without any witnesses.

Along with his colleague Fiona Leverick, Chalmers has conducted extensive research on juries’ use of the Not Proven verdict and backs its abolition.

The Faculty of Advocates, however, has said removing it could “undermine the provision of fair and equitable justice. It opposes the scrapping of the requirement for corroboration, particularly if it was to be done in isolation rather than as part of a wider package of reforms. It has also warned Lady Dorrian’s plans could lead to a two-tier system with “one rape case tried in the specialist court and one in the High Court.”

The arguments for and against the reforms are complex; but sources inside and outside the profession say the discussion won’t be helped by the suspicions some advocates are antagonistic towards Rape Crisis Scotland or that the Faculty is failing to adequately address misogyny in its ranks.

Moreover, there is the fear that behaviour like McConnachie’s will prevent other victims coming forward. “If senior QCs are comfortable conversing about someone they have held a professional external relationship with then this raises serious concerns about how they will behave towards other women they encounter, including women entering the profession, or women that they cross-examine in sexual offence cases,” Rape Crisis Scotland said, in a statement after the story broke.

Legal expert and commentator Andrew Tickell, who is currently pushing for the automatic anonymity of sexual offence complainers in Scotland, agrees McConnachie’s conduct and the Faculty’s response to it is likely to affect public confidence. “The issue is always: ‘What do people say when they think no-one is listening?’” he says. “I think for this particular, very personalised commentary to be going on behind closed doors does raise questions about how senior members of the Bar understand sexual violence.”

The controversy is also likely to impact on the Faculty’s attempt to resist moves away from self-regulation. The Roberton review, published in 2018, recommended “a new regulatory model and single independent legal regulator in the legal services”.

In the wake of the Record’s story, Scottish Legal News said: “These revelations, following so closely upon the Faculty’s disciplinary committee finding Gordon Jackson QC to be guilty of ‘professional misconduct’, have handed powerful ammunition to the reformers.

“If it is to retain its cherished independence, the Faculty must do everything in its power to tackle misogyny and sexism while handling complaints with sensitivity and transparency. And it must be seen to be doing so. It should, therefore, review its public relations operation as a matter of urgency lest inexperience and incompetence are misperceived as loftiness.”

Asked to defend self-regulation, Dean of Faculty Roddy Dunlop points to the judiciary’s response to the Roberton report. “Look at what they say about the importance of an independent legal profession and the unconstitutional nature of all three options proposed,” he says. “That is a properly independent view of the judges as to why these proposals are not good and why you need to have a profession which is actually, and as matter of perception, completely independent of, and therefore not subject to, the whims of government.”

However this is a tough position to maintain when disciplinary cases like McConnachie’s and Jackson’s are only making their way into the public domain via leaks to newspapers.

“The solicitor disciplinary tribunal has a well-established apparatus,” Tickell says. “If you want to find out that a solicitor has been the subject of a complaint, there are hearing dates published, there are determinations published - all of that is in the public domain.”

Less so the Faculty of Advocates. At present, it won’t comment on McConnachie or Jackson because it says the process is ongoing. This is because the committee, made up of two QCs and two lay people, decided only on the merit of the complaints, inviting further submissions on sanctions. Once the process is complete the decision will be available for inspection, but only to those who turn up in person to view it at Parliament House.

“This poses awkward questions for the Faculty about self-regulation,” Tickell says, “If it’s a public office why shouldn’t the disciplinary conclusions be publicly accessible.”

Dunlop accepts the current situation is less than ideal. He says the Faculty has already taken the decision to make its completed decisions available online. The change is being delayed by concerns over data protection, but will happen. “I’m not going to pretend potential regulatory reforms weren’t instrumental in the decision [to put the decisions online] but we would want to do it anyway because in this day and age it is important to be transparent.”

That’s all very well, but within the Faculty the wheels of disciplinary justice turn slowly. While their sanctions are being pondered, both McConnachie and Jackson are busy representing some of the police officers in the high-profile Sheku Bayoh inquiry.

As for Miss M, she no longer suffers from PTSD and has been off all medication for three years. She says winning her civil case with the support of her advocate Simon di Rollo helped her gain some closure.

Her experience in the civil court, where she was cross-examined by the late Stephen O’Rourke,

made her realise it was possible for defence advocates to do their job professionally and still treat complainers with respect. Yet it is difficult to see how last week’s revelations could prove anything but a setback to her and every sexual offence survivor.

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Gabriella Bennett is not a sports journalist but her presence on The Times table at the Scottish Football Writers’ Association (SFWA) awards dinner had become an annual tradition.

“It is always fun - a chance to catch up with colleagues, especially now I’m no longer on staff, and to learn more about football,” she says.

She was enjoying this year’s event, too, until former criminal lawyer and after-dinner speaker Bill Copeland got to his feet. According to one agency, Copeland’s mission statement is “always leave them begging for more.” But for many at the dinner, including Bennett, his repertoire was far too much, and the audience response to it, emblematic of the misogyny embedded in Scottish culture.

Copleland’s sexist jokes - he said the room smelled of fake bake and suggested women from Paisley give men STDS - made Bennett and others on her table uncomfortable, but many in the room were laughing. It was only when he made a racist quip about Japanese footballers - that an undercurrent of disapproval could be felt.

At that point, Bennett, who recently went freelance, and a male colleague walked out; some others on her table followed suit. “I thought: ‘I just don’t want to listen to this any more,’” she tells me now. At the bar, she bumped into Sky Sports presenter Eilidh Barbour who had also walked out.

Barbour had gone on to tweet: “Never felt so unwelcome in the industry I work in than sitting at the Scottish Football Writers’ Awards. A huge reminder there is still so much to do in making our game an equal place.”

To anyone who has ever sat through a football dinner, off-colour jokes would come as no surprise. It is staggering to remember that, until 2004, women were not even allowed to attend the SFWA awards event.

The first year Bennett attended - around 2016 - there were fewer than 10 women in total and the comèpre asked the other guests to stand up and give them a round of applause. “It was embarrassing but it wasn’t offensive, just weird,” Bennett says.

She tells me there were far more women this year and that the overall tone of the night was good, but that Copeland’s sexist jokes combined with the racist one were “next level” offensive.

The SFWA has apologised for any offence, but, for many, that it happened at all is an indication little has changed in a post-#MeToo world.

Bennett is also co-chair of Women in Journalism Scotland which last week launched its Sexist Shame of the Beautiful Game campaign. The campaign came after the organisation discovered just three of the 95 staff roles on sports desks at national and regional newspapers in Scotland were filled by women.

It teamed up with gender studies students at Strathclyde University who interviewed some of those women working in print sports journalism in Scotland. “They found there were significant barriers to women not only entering, but staying in the industry,” Bennett says. “They ranged from vile misogynistic abuse from football fans online to being paid less than their male counterparts to being subject to sexist remarks in newsrooms to being overlooked for promotion to being intimidated at football press boxes.”

Bennett said since she and Barbour walked out she had experienced a lot of support from men as well as a degree of negativity. “I have heard from a few men who were at the event and said they were disgusted by the jokes. I said: ‘Why didn’t you stand up? We need you to walk out with us. We need a show of solidarity’ - so it’s been a good learning opportunity in that sense.”

Bennett said there had been a trickle of texts and emails from male journalists offering time, support and work experience to women. Women in Journalism Scotland has also extended an invitation to the SFWA to work together but, at the time of writing, it was still waiting for a reply.