In this episode, Iain Smith shares how becoming trauma aware has changed his approach to practice and the way in which he relates to his clients. He also explains why justice systems everywhere need trauma informed education to effectively reduce crime and criminalization.
In this episode, Iain Smith shares how becoming trauma aware has changed his approach to practice and the way in which he relates to his clients. He also explains why justice systems everywhere need trauma informed education to effectively reduce crime and criminalization. CW: Some discussion of child abuse is had with no details provided. The focus of this episode is on trauma awareness and how judges and lawyers can positively improve and redirect the lives of offenders by simply being kind and compassionate with them, and by recognizing how a history of childhood trauma may be influencing their criminal behaviour.
Episode 18: “Practicing Smart Justice in Scotland: My Conversation with Iain Smith”
Published: December 30, 2020
Episode Summary: In this episode, Iain Smith shares how becoming trauma aware has changed his approach to practice and the way in which he relates to his clients. He also explains why justice systems everywhere need trauma informed education to effectively reduce crime and criminalization.
Episode Notes: CW: Some discussion of child abuse is had with no details provided. The focus of this episode is on trauma awareness and how judges and lawyers can positively improve and redirect the lives of offenders by simply being kind and compassionate with them, and by recognizing how a history of childhood trauma may be influencing their criminal behaviour.
Myrna: I’m Myrna McCallum, Métis-Cree lawyer and passionate promoter of trauma-informed lawyering. Welcome to my new podcast, The Trauma-Informed Lawyer, brought to you in partnership with the Canadian Bar Association.
I believe that law schools and bar courses are missing a critical competency requirement in their curriculum: trauma-informed lawyering. Becoming a trauma-informed lawyer will, among other things, challenge you to critically reflect on your personal behaviors, beliefs, and biases; call on you to positively transform the way you approach advocacy; guide your practice to avoid doing further harm to others; and ask that you commit remaining open to learn new and old knowledge you didn't know you needed before beginning your career. Your education starts right here, right now. This podcast comes to you from the traditional, unceded territories of the Sḵwx̱wú7mesh [Squamish], səl̓ilwətaɁɬ [Tsleil-Waututh], and xʷməθkʷəy̓əm [Musqueam] people.
Welcome back to another episode of the Trauma Informed Lawyer podcast. Before I get started; Brittany Scott, Melissa Erickson, Marissa Faulkner, Ellen Campbell—these four law students (in the case of Ellen who has just graduated) have stepped up and said, “We want to transcribe season one of the Trauma Informed Lawyer podcast”. They heard my cries for help on social media and they answered the call, so to them I am eternally grateful. Love them, love them, love them. Law students, law grads, they are the future of this profession.
I also have to give a shout out to a couple new podcasts, like, out in the world, that you all have to go listen to. Not that long ago, the Federation of Asian Canadian Lawyers of British Columbia started their own podcast and who did they ask to interview for their very first episode? Me. So if you haven't heard enough of my voice and you wanna hear some more, head on over to their website it's www.FACLBC.ca and you will be able to access their podcast on their site.
In addition, Pro Bono Students Canada started their own podcast as well called Indigenous Human Rights, and who did they ask to interview for their very first episode? Amber Prince and yours truly. They wanted us to chat about our experiences representing Deborah Campbell at the BC Human Rights Tribunal last year. We talked about human rights issues, we talked about cultural safety and cultural humility, and trauma informed lawyering, and self-awareness, and all these really cool things. So, if you want to hear more of Amber's experience and my experience at the tribunal, then head on over to www.probonostudents.ca/indigenous-peoples and you will find their new Indigenous Human Rights podcast there.
Now, I have to say, for those who didn't know; I am now officially an award-winning lawyer. Mhmm, award-winning. Recently the Government of Canada— their Victim and Survivors of Crime Week—gave away a number of awards. One of them was a new award; Excellence in Legal Practice and Victim Support. So awesome, I'm so humbled. Thank you to the Government of Canada and thank you to EVA BC who nominated me for this award.
Recently Iain Smith and I connected on social media. He is leading the efforts to create a trauma-informed legal practice and judicial practice across Scotland, and I'm sure beyond. He is formerly known as the “legal Jesus”—he says that's my title now—but what he is most recently known for is being the Lawyer of the Year. This is an award that he was given in 2020. Iain often talks about kindness and what kindness looks like in the court. Through his criminal defence practice, he's become keenly aware of the connection between offending behavior and a previous history of trauma, and it's this awareness that has compelled him to educate himself on ACEs (the Adverse Childhood Experiences). I'd say he's become a revolutionary in his home country.
Myrna: Alright, hi Iain, thanks for making time to chat with me today for this podcast, I’m really happy to meet you.
Iain: Yeah, really happy to meet you as well Myrna.
Myrna: So let's start with you telling me a little bit about how it is that you as a defence lawyer in Scotland—now Lawyer of the Year in Scotland—have turned your mind to thinking about trauma and the science behind trauma after so many years of practice. How did that happen?
Iain: It happened for me, really, by accident. So, I guess, I've been a criminal lawyer since around 1993. I did very little crime to begin with, but then acquired more, so I've been doing this a long time. I always assumed that clients made reasoned choices, that they may have been influenced by upbringings, by poor communities—to some extent by poverty, but didn't have any handle on trauma or the impact of neglect and other things I now know. So, I by accident met a lady called Leslee Udwin in November 2017 and she, along with her acting friends, created a charity called Think Equal, and that was on the back of a very important documentary film called India's Daughter, and as a result of that, she came up and showed me the film and we became friends, and it really made me think hard about the clients that I was dealing with and their background. I introduced her, while she was in Scotland, to what effectively are generally known as the ACEs gurus in Scotland, and these include the heads of what were a former police Violence Reduction Unit who spearheaded bringing over Vincent Felitti, M.D., I think in around 2003-2004, and I was completely unaware of this, and adopting the signs of adverse childhood experiences, and why that was important. So the police, and the specialists have been talking about this for years, but I didn't really understand it or gain knowledge about it at all until March 2018 when I watched the film Resilience—all about the incredible Dr. Nadine Burke Harris and the work that she was doing around adverse childhood experiences— and the films that were produced, including that one, by the late and great James Redford. So I think, really, in March 2018, watching that film for the first time, it immediately struck me that I had missed this huge discovery which was obviously discovered 20 years before, and couldn't believe (a) I didn't know about it, and (b) how probably daily, I was failing my clients by not knowing about this and not describing to judges about the past that they had, so that was really the arrival for me was through a film, and that was a huge revelation, and then thereafter very quickly I read (I'm not very good at reading, I'm dyslexic, I can read obviously but I'm very slow at reading) and I had to go through all these very difficult and medically difficult books which were quite long, including the Wellness of Being, and it led me into reading other things, but also thankfully, because by then people like psychologists and other trauma-informed people were doing videos, not so much podcasts, but little YouTube videos or Ted Talks, and we gain access to knowledge that way, and that was really my arrival on the scene because by accident, I found out about this (I didn’t obviously discover it, there's other people that discovered it) but I then got brought into a world that I didn't really understand, I didn’t know about, and realized how hugely important for me as a criminal defence lawyer it was.
Myrna: How did that change your practice?
Iain: It changed how I was almost immediately because I could no longer see bad people, I could see them doing bad things, but just people. I would probably loosely use language like how we would describe generally as lawyers, we’d call our clients “punters”, probably rarely used the word “junkie” to define a heroin addict, but I probably occasionally used that language loosely, and I think I used that type of language in a lot of ways to detach myself from what was going on with all my clients if that makes sense. I would just try and take a step back thinking this was professional, that when they were telling me all these sad things about their lives, which as I see I didn't realize the impact of then, but I would detach myself because I would think that's a professional thing to do would be not to get sucked in, and probably immediately I changed that view, and then rather than detach from that, I would engage with it. I didn't make them my problems, but I guess I recognized how clients spoke to me, I recognize sometimes in their aggression or anger that what was underneath that, that those that were taking heroin and alcohol, I no longer viewed them as making a conscious choice, and that actually they were finding solutions in drugs and alcohol to their problems. The problems weren’t the drugs or alcohol, those were their solutions. Their problems were underneath the drugs and alcohol use, which almost inevitably was some form of trauma or childhood trauma, and the more I saw people in that way, I would say fairly quickly, I became more compassionate about what was going on. I became more angry about how we were treating those people, how we would label them, and I think I then immediately started talking in a different language about my clients, and that was really the start of it. I have a business partner who's very experienced, he’s actually a more experienced criminal lawyer than I am, I think initially he thought I was a bit mad—I know my other colleagues thought I was a bit mad—I think one of them actually asked me at one point, texted me to ask me if I was okay, 'cause he thought I was having a mental breakdown when I was talking about us needing to love our clients a little bit more, and thinking I had gone mad, and to be kind to people.
So it wasn't immediate within my practice that everything happened overnight, but I would say I genuinely. . . that it was like the scales had fallen off my eyes about what I was seeing and who I was seeing, and there's a great. . . I have spoken about this before, but there's an educationalist called Stuart Shanker and he's an author, and he wrote about how we educationalists should see children. He says, “If you see child differently, you will see a different child”. So effectively I was seeing the same clients but I was viewing them differently and then realizing, “Oh my God, these are not bad people, these are struggling people, these are damaged-heart people”, and rather than looking (not that as a defence lawyer I was looking to punish my clients) but rather than going through the motions of hoping to avoid a custodial sentence or accepting they’re gonna be punished in some way, I was looking more towards repair and not quite fixing them, certainly not myself, but signposting them away from the justice system, looking at ways where they could get help, engaging with some services that they would previously view as the enemy, and having to readjust how I would speak to them about engagement with services, almost not saying to them, “Just play the game, go along with what the social worker’s saying”, but actually seeing the real benefit of that, because I think there is a real benefit of it, but it really takes those same services themselves to become trauma-informed, because I have to say, what we call our social work department, criminal justice, social work—the ones that work with the kids away from court so they're given a community order that often, or previously often, those social workers were not trauma-aware and did not apply trauma-informed practices and would treat those same kids in some ways the same way as I did with a little bit of disdain, disrespect. . . and none of that. . . I’m obviously human, sometimes I don't always get it right, but I by and large try to take a deep breath before I ever say anything hurtful or do anything where I get annoyed with someone because as I say, despite all this knowledge and understanding, I don't always get it right.
Myrna: So I imagine that this education or lightbulb moment that you had not only transformed your relationship with your clients, but maybe also changed the sort of submissions that you made to the court when it came time for sentencing.
Iain: So literally overnight, you know, a few times where I had my clients crying in the door about me talking about their past, and where they would be sexually abused, I would effectively, as you know as a criminal defence lawyer, Myrna, you would talk in code so that the judge would understand what you were meaning, or you would slip a note up so you would never humiliate someone in court about their past, but to the extent where you're doing the submission and the fiscal, the prosecutor, is saying she almost cried. They battle off tears, and the judge is trying to keep up the exterior of firmness and propriety but scratching the surface of my clients’ lives and telling the judges about. . . I feel they can't help but gain some level of empathy for what that person suffered. That doesn't. . . so you're clear and so your listeners are clear, I don't see just because someone has had a terrible childhood that that excuses what they going to do, which might be bad behavior, but what it does for me is explains a lot of the bad behavior. It explains a lot of addiction, explains a lot of anger, and if you can do that as an advocate for your client, if you can do that as someone who's the voice of a very vulnerable person, and do it in a way that actually comes from your heart rather than necessarily your head, then the message gets over loud and clear and, for me, it should then command the judge to show compassion, show mercy, give the person who's before them some hope, and allow you to persevere with them when they fall down and come back to the court 'cause it's not an overnight fix.
Myrna: I've looked at some of what you've written, and you talk about presiding with kindness, and I want to ask you a little bit more about what that is and also what that connection is to helping judges become aware of how maybe childhood trauma creates offending behaviors in adult.
Iain: So presiding with kindness is something that firstly hasn't happened in Scotland and secondly, the way by and large our justice system works, is a punitive one. It may be the same in Canada, it certainly is the same in America 'cause they've got by far the highest prison population in the western world, rather ironically, Scotland—my little jurisdiction with 5 or 6 million people—has the highest per capita prison population in Europe. We have over 8000 prisoners which is a very small number compared to the size of Canada or America, but in terms of the size of our country, we have the highest percentage of prisoners. So our system, as well as certainly America, I can't speak for Canada, but certainly have a very punitive approach to criminality. Now, the system that I'm proposing, or the term “presiding with kindness”, really emanates from a counter-intuitive approach to how you view the people who are appearing before the court, and thinking the word that is used by our criminal justice system—sorry, our community justice people and violence reduction people—is a term called “smart justice”. It's very counterintuitive for judges—smart justice relates to doing something which long term gives the best outcome not just for the individual, but more importantly or as importantly, for the community. So let's give a brief example: you have a chronic heroin addict coming in and out of your court every week or every second week where they’re breaking into houses or they’re stealing things to fund their habit, and if your punitive approach is to send them for short term prison sentences, or to punish them, then all they're going to do is they’re going to keep coming back and going back and forth. Smart justice would dictate that what you want to do is get to the root of the problem, and at the moment, our judges, our prosecutors, our police officers think that the problem is the drugs or the alcohol, but in fact, the drugs and the alcohol—as we know being trauma-informed—as that's the solution to the problem, and their problem is underneath that which is often a childhood trauma or adverse childhood experiences, and that they can't cope with daily life. So for me, the way to the smart justice element is to get underneath that and for a judge to preside with kindness. What we're really talking about is thinking about what has happened to that person, not what's wrong with them, what's happened to that person that has led them to take drugs, abuse alcohol, get angry, and all the unpleasantries that come with offending, and to think counterintuitively, how can I stop that person coming back and forth to my court? And all we both know is that punishment is not the cure to addiction, is not the cure to alcoholism ,is not the cure to anger, and they have to do something counterintuitive, so I've described it as “presiding with kindness” and where judges are—in my view—should become compassionate, empathetic, they should look for perseverance so when someone comes back to them and they’ve failed despite them giving them this chance or to do the right thing, and to offer the person hope. Those for me are the key issues. I'll give you a brief example of that: there's a retiring judge, a very nice lady, she retired as a Sheriff and she was a judge for 18 years and her sentencing powers were up to five years imprisonment, so you know, it is quite significant, and she describes a young lady going in and out of her court. She did a retirement speech and she talks about this girl who she saw for 18 years in and out of her court. . . addiction issues so it was theft, petty theft, other types of crime, and for 18 years this girl came in and out of her court and she describes the last day of dealing with this girl, of getting down from the bench (we wear robes and gowns and in our world, but judges wear wigs and gowns) and she took her wig off and her gown off and she came down from the bench and she hugged the girl, and she hugged her 'cause she wanted to show that she cared. That was a magical moment for me but I wanted to ask the judge the question to highlight the issue of presiding with kindness which is this: what would that girl's life have looked like if she had hugged the girl the first time she met her rather than 18 years later? Because everything that was going on with that girl for 18 years the criminal justice system did not disrupt, did not help, and that is not to make fun of that judge 'cause the judge is actually a lovely judge and she's doing, since she's retire, does amazing work, but for me it was quite a poignant story of trying to describe the futility of doing the same thing for 18 years and then the one moment in which you do something magical. I'm not asking judges to cuddle our clients at all. . . I don’t cuddle my clients, let's be clear. I may love them, but I don't cuddle them. . . but showing that love could break the cycle of someone who's only used to cruelty, who is only used to punishment, harsh dealings. . . that for me is presiding with kindness. It doesn't need to be as graphic as hugging people but metaphorically to hug people, to care about them, to show them compassion, and hopefully to break the cycle of despair, really.
Myrna: I like that story. I was going to ask you about that 'cause I read it amongst some of the articles that I was reviewing in advance of our conversation today, and what you're talking about, I would say, really echoes some things I've heard from others that I've interviewed for this podcast, and in particular Harold Johnson. I interviewed him for his book Peace and Good Order: The Case for Indigenous Justice in Canada, and he is Indigenous, he's a Cree trapper-turned-lawyer, he's got a remarkable story, but he talked exactly about that, “what folks need who come into the criminal justice system is for someone to give a shit about them”, that was his word, that's what they need, and the way I tend to translate that is people want to be seen, they want to be heard, and they want to be understood, and so when you talk about addressing offenders with the question, “What happened to you?”, just being trauma-informed, what benefit does that have for judges and lawyers who work in these courts on a regular basis, and maybe court staff who are in these courtrooms every day?
Iain: I think being trauma-informed is that you, I guess you recognize where clients are struggling but obviously we're not just talking about people who commit criminal offences, who, maybe they’ll be subjected to horrendous things happening in their childhoods. As we both know, there are lawyers who. . . they've had very unhappy childhoods, it doesn't require there to be sexual abused or something along those lines, they could just be inadvertently unloved by two very hard-working parents, that could cause that level of upset and that could happen to our colleagues. We all know angry lawyers, we know upset lawyers, we know lawyers who drink too much, thankfully I don't know too many of them that take drugs, but there undoubtedly will be those lawyers as well. There will be court staff who are in that way, police officers, prosecutors, judges—angry judges that we see, and I think in recognizing a trauma-informed approach is that you have to accept this might happen amongst us. In addition, I've heard you talking before in your excellent podcast about vicarious trauma, so us being aware of this should allow us to realize that at times it can take its toll and it does, it certainly takes its toll on me cause I’m perhaps . . . despite all my friends, I've got several friends who are psychologists and violence reduction unit who constantly warn me, “Don't get sucked in, don't behave that way, don't be overly kind, almost, don't let their problems become your problems”, and I'm quite bad at one thing personally to. . . it’s a terrible word to use but to “fix” my clients. (A) I know I can't do that and (b) I know I shouldn't do that because it's not it's not the right thing, it's a wrong thing, so there's a few times I've been disappointed where I’ve lined the client up, for example, to go on a course—so in this case it was a course run by Community Justice. It was a wonderful course that was to do with meeting other young men in a similar situation in a residential course with brilliant leaders who themselves had lived the experience, so it wasn't a patronizing course, it was a course where they’re going to learn from those who had walked on the path before, and this boy didn't want to go and I felt disappointed. I couldn't work out if I was disappointed for me—because I thought that was the right thing for him—so again, being trauma-informed, I’ve been properly trauma-informed, I've got to realize that all my middle class values or my “the right way to go” can't really be imposed on people. Again, that's something I've got to be mindful of but the vicarious trauma, I think, is a real thing for all practitioners whether they’re judges or whether they’re solicitors or prosecutors—in some ways, we've probably got to realize that our days can be darkened by the things that we hear—child abuse, for example. We are representing, as criminal lawyers, often perpetrators of horrific. . . and these things are very draining, but I always try and treat all of my clients the same. I often treat a lot of what I see on the basis. . . on the assumption that they may well have suffered trauma when they were young, and I try and keep hold of that so that I can try and rise above whatever they've done but try to remain regulated myself in dealing with people. So as I say, I describe not being. . . I try to be that. . . I used to be detached, now I’m attached, I don't attach myself to what they've done if that makes sense. I always try to be detached from the crime but not the person.
Myrna: Yeah, I imagine that has to be a bit of a challenge to strike that balance, but you bring up something that I want to chat about because this has come up. . . actually just this week. I attended, over Zoom as now that's the world we live in, we don't actually go anywhere, we just turn on the computer. . . this Bar Association course on legal professionals and trauma in the criminal justice system, something like that. It was out in Ontario, these lawyers were talking there was a judge— Justice Patrice Band, who I've talked about in my podcast because what I really love about his awareness and reflection of his awareness in some, at least, child pornography sentencing decisions is talking about vicarious trauma, and talking about making space for that conversation, and acknowledging the elephant in the room—that this kind of evidence, graphic and disturbing evidence, can really impact on, in a really negative way, on the psychological well-being of people who are in the courtroom. Whether that's judges, whether that's lawyers, whether that's court staff who are there and they're transcribing, maybe not prepared for what it is they're going to hear and see, I would say he's exploring or at least putting it out there, positing if you will, a better way—is there a better way to do that? Does the judge absolutely have to see these images, have to hear these sounds, does some of this evidence have to be displayed in the ways that it currently is in courts, and I know you and I had a previous conversation where we chatted a little bit about a different approach that you all are taking in Scotland. Can you share that?
Iain: Yes, certainly. I mean, it probably doesn't apply to every single case, so I'm not going to suggest that Scotland has never brought forward real evidence before a court, including a jury, in a child pornography case, but the reality is the dispute often in the child pornography case isn't whether or not something is child pornography. So we have a duty as a criminal defence lawyer in preparing the case for trial that if there is evidence that is capable of agreement, then we should agree it, that is one of the duties that are upon us. In child pornography cases, the dispute may well not be whether photograph A showing a horrific scene of child abuse, is a category A, B, or C, so that the dispute is not what it depicts, and therefore if there's no dispute about what it is, and some poor police officer or technical guru has had to go through these images and writes down what the image depicts, and that is agreed, then ultimately where would be the benefit of showing everyone what was agreed *audio cuts out* unless they’re claiming, for example, I dispute that image production number 1 shows that depiction of abuse, in fact, I either don't know what it shows (in which case, why aren't they agreeing it?) or I think it shows something else, in which case you're on a hiding to nothing anyway, and also, what is the point of showing that? So certainly the case is—often in child pornography cases—and the evidence is such that the client may well be pleading guilty, in which case, for me, nobody needs to see it. Historically, when these cases started happening (because obviously pre-internet, I was a solicitor, you may not have been because you look a lot younger than I do but certainly, you know, I was a solicitor before the Internet was casting out these things) and although the Internet, in terms of pornography, was doing this quite early on, prosecution of it, certainly in Scotland, has really been going on in the past 15 years or so fairly significantly with the advent of much better technology catching people, finding these images have been much better, so there's a larger volume in all jurisdictions, I have no doubt. But there is no benefit for me, there is no benefit for the judge, certainly no benefit for the accused person, to lead evidence about people actually seeing these images if they are described. So for me, you are creating, in that court, you’d be creating trauma amongst the judge, amongst the prosecutor, amongst the witnesses, police witnesses, certainly to a jury, and including the defence solicitor, I would say there’d be rarely a need for anyone to see something which is described in—so you've got book of photographs as your productions and they are described in a separate inventory—why the hell would anyone want to look at them?
Myrna: Yeah, I've heard, at least in that session I attended, that at least someone was of the view that it's necessary for the judge to see these images because the judge can't have appreciation for how severe, essentially, the case is without actually subjecting themselves to the images, which, you know, in my view, I don't agree because I think that we need to really question whether proceeding in that way is truly necessary to ensure fairness or to ensure that the judge has a real appreciation of how severe this case is. We have to talk about, like, psychological harm and well-being and vicarious trauma of people in the court.
Iain: I would say on balance, it’s not worth it, but just illustrating the point that you make about why judges may feel they need to look at it. We all talk as criminal defence lawyers about. . . let's say a fight where someone was repeatedly punching and kicking someone to the head and body, that's the charge, that's what would be read out by the prosecutor and yet, if you see that on video, it becomes very graphic. Seeing someone kicking someone on the head is very graphic, so if I was a judge and I'm hearing this day-in, day-out about someone repeatedly punching, kicking the head and body, it becomes mundane, but actually when you see it, it becomes horrific. So I do get—I do understand about a judge seeing a horrific image to gain what they're doing but the reality is, certainly in Scotland, we categorise the images, the pornographic images, in terms of A, B, or C so that they know that there's 40 category A terrible images which would depict the highest levels of depravity and sexual abuse of children, and then it becomes less and less. So the judge then gets a flavor for. . . but I don't think they need to see these in my view. That’s my view.
Myrna: I'm with you, I don't think we need to see them either, I don't think anyone does. I think, because, you know, my perspective—having been defence and having been Crown in lots of different courtrooms—is the psychological impact that judges experience, whether they are aware of it or not, becomes very evident to everyone else in the courtroom. I don't want to highlight any examples in case those judges are listening, but you know there are judges who will show up and they are detached, they are angry, they are easily frustrated, they are almost easily outraged, that tells me that they're almost kind of hanging on psychologically by a thread because they are so quick to react. Maybe the job is having an impact on them and they need to be having more conversations about what those impacts are, how to safeguard their mental health, and what changes can be made to safeguard the mental health of the people working in the court
Iain: I think that's important. I mean, you talk about the judge that’s clearly trauma-informed and effectively has a debrief, presume it be described as that, about discussing what was on. . . my dad was a former police officer, he’s retired now, but they would have to come across terrible road accidents, or murders, or abuse, and as police officers and detectives investigating that, and what they would do in the old days, I guess, is they would all go to the pub afterwards and they would have a drink. And people go, “Well that's old fashioned”, and maybe, but in some ways it’s the modern day debrief of talking about what they experienced, and we call dark humor, you know, sometimes it might involve that, but it's still the same situation of talking about the elephant in the room in some ways of having shared a terrible experience, sharing the debrief. I don't know whether there's room for that in courts, I mean, we churn along so quickly and we're all so busy, we forget to look after ourselves as a group, or as a group of people, rather than just individuals, which isn't good. Especially during Covid where we’re not seeing friends, we're not seeing family as much, certainly in Scotland, and nothing to do with court, just generally about your own happiness because you're not having relationships and the relationships are key to all of this in terms of being trauma informed, relationships are at the heart of solutions for a lot of people with difficulties, including lawyers.
Myrna: Absolutely. So we need to do more work, as we talk about trauma-informed practices, we also have to talk about, I would say, vicarious trauma, which is trauma-informed practice, right? So I'm really excited that you're doing all this cool work out in Scotland. We talked previously about young offenders and their experiences within the justice system in Scotland, and you were sharing earlier that there are some changes being made to reflect science and how the brain grows and offending behaviors. Can we chat a little bit about those developments?
Iain: Certainly. Again, I know there will be the Canadian equivalent of this, but we have something called the Scottish Sentencing Council who are a subgroup of judges, lawyers, prosecutors, laypeople who gather themselves in to talk about sentencing policy, and the outcome of sentencing policies, and looking at creative ways to deal with people in the criminal justice system. In February of this year, our second highest judge, is a lady called Lady Dorrian, who’s a very eminent QC High Court judge, she's the second highest judge in Scotland. and she along with the sentencing council have devised draft guidelines, which unfortunately due to Covid probably have taken more time to both agree on and be enacted, but they’re in the draft process, but certain really brilliant things are contained in them.
The first is what we describe as young offenders in the system go up to the age of 21, so in terms of imprisoning young people in our prisons, they go to a young offenders’ institution up to the age of 21. The proposed guidelines are going to be that young people in the system will be treated as those up to the age of 25. As you and I know, the age of 25 is significant for some bodies of science and trauma because that is the age that is viewed that the brain stops developing of young people. The reason they have that age is. . . .I used the words, I don't particularly like the word “fixing people”, but I suspect that was the cut off age because the judges would hope that those committing numerous offences can be fixed, or helped, or educated and that they can adapt the malleable brain up to that age. There are some schools of thought that think it's up to about 30 years of age, but it's a good start—extending that age to 25, I think, is a brilliant development if it goes through. So these guidances for judges, if they come out, will be extremely important but not only that, the guidance of what to do with those young people and what they must look at in assessing how to sentence that up to 25-year-old young person includes mental health, addiction to drugs and alcohol, if the young person is care experienced. Now for me, these things, really, the generic name for those examples is “childhood trauma”. The reason I say that's important is because I’ve certainly made representations to that body to say, rather than list a few things that are childhood trauma, why not call it the generic childhood trauma because you might be missing about poverty, bereavement, parental separation, neglect, sexual abuse, and various other things that might all boil down to, well, mental health will cover childhood trauma, but for me, it would be helpful to spell out to judges. One of the things I alluded to earlier is that our judges have a training institute called the Judicial Institute. They’re a very good body between every level of judge in Scotland—so the High Court judge right down to what we call the Justice of the Peace or Magistrates Court, and then the middle ground is sheriffs. These judges are trained in ways and given knowledge by the Judicial Institute often of legal changes as they happen. My simple concern is if the sentencing council guidelines come out tomorrow, which they won't, but if they did, they would inevitably fail and they would fail because judges in Scotland, as with other lawyers, as with half the population of Scotland, do not know about the underinflated study about adverse childhood experiences, are not trauma-informed, don't understand the huge impact on the developing brain of childhood trauma, about flooding of the brain with cortisol and stress—they don't know these things—not a criticism, they just don't know them. It's like anything; it doesn't make you clever or not clever, you need to be taught. I think without giving judges, and prosecutors, and defence lawyers this knowledge, which I've been trying to do only for a couple of years now, without getting that information in, then it won’t make any difference to how you sentence young people because you won't know about the damage. You won't understand the explanation when I stand up and try to tell you about the sexual abuse and the impact of that on my drug adult client who's been taking drugs from the age of 13, and why they're taking drugs, and how you sentence that child or young person, so I think there's a lot of things going on—really positive things—but we're not quite perfected it yet.
Myrna: I think what you're talking about maybe could inspire diversion courts or something that focuses on rehabilitation. In Scotland, is there currently either an equivalent to a mental health court or a diversion court for young offenders, or for anybody?
Iain: So the simple answer to that is no, I think there's been experimental youth courts, there was an experimental problem solving court. All of these courts were presided in a way that didn't have their trauma-informed education. So you're immediately dealing with problems that actually you see alcohol and drugs, as we've talked about, as the problem and how do we solve that problem, or we’ll tell you what we’ll do—we’ll give them methadone. That doesn't solve the problem because the problem is, you know, is underneath the solution—the solution being alcohol or drugs. So all these great courts that we tried to experiment with by and large didn't work because we didn't get to the root of the problem.
In terms of disposals by judges, and it's not inevitable, despite our high prison populations, people get sentenced to jail, we have what we call “community payback orders” or “community orders” and that can include supervision. So we have youth social workers who deal with young people and try to instill positive values and try to install it—respect, and, you know, equality, and probably empathy, and other really positive values in lieu of punishment, but that doesn't always happen. There is a diversion. Our diversion is determined not by the judge, our diversion system is determined by the prosecutor. So before they go into court, a lot of people are diverted away from the criminal justice system—not because they’re trauma-informed, but because they want to save money. And again, I don't criticize that but just make the observation that they're not really salvaging people into diversion because they’re care-experienced or because they suffered trauma in their life, but because actually from a cost analysis, if someone's. . . ultimate, a year down the line. . . who's gone through prosecution is going to get £200 fine, $200 fine, then they'll just give them at the start before the proceedings start. No use to lawyers obviously 'cause that's where we make our money, but actually in terms of diversion, it can be a good thing in particular for these very vulnerable people that I'm talking about. My view is that lawyers who are aware of these things and create diversion should be paid properly for stopping a prosecution, but at the moment, there is no incentive on lawyers to actually do the right thing about trauma, especially at the beginning of a procedure, which is a pity.
Myrna: Waving a magic wand if you will, if we had one and we could create a smart justice or trauma-informed justice system, what would that look like in law schools? What would that look like among defence, or prosecutors, or people in other practice areas, and of course, what would that look like in the judiciary?
Iain: Okay so that’s a big question but a good question because I do have a vision about what I think would be good but I'm not going to either determine that or create that change necessarily, but in a small way, with the help of my colleagues, we've created a certain group of lawyers called the “trauma aware lawyers” in Scotland, and basically we hope to instill trauma-informed knowledge and knowledge of the adverse childhood experiences and what that does at university level. The reason it's important to do it at that level is because if you’re educated that young, you might go on not to be a lawyer and that's fine, but you might go on to be a judge, you might go on to be a defence lawyer, you may go on to be a prosecutor, or you might go on and deal with people's wills, trusts, and executories, accident claims, fraught children's hearings, family law and divorce—all of these things, it’s important to be aware of trauma. So for me, in the early stage, that education is there and that gives knowledge. For me, for prosecutors and police officers, for example, in the system—being aware of trauma knowledge—may well result in people being diverted who they know are vulnerable, who they know are care-experienced. Not to label them in a way that says they're going to turn out badly, but in a way that says, “I'm going to help you not turn out badly, I'm going to intervene”.
In our lowest courts, which are the Justice of the Peace courts, who have spoken to several in different jurisdictions and doing talks and explaining to them they actually might be the most important judge that young person meets if at the very early stage, they can intervene in their life to stop that young person from taking a path to criminality, to drug abuse, to alcoholism, to fighting, to death, to murder where they end up meeting a judge in the higher court. So the very low level judges could actually be the intervention. How can they do that? Well, probably in different ways, but recognizing their trauma, right? Recognizing the difficulty. They may bring them back to court every three months to find out if they're engaging with their social worker, or rather than criminalizing them, give them what we call in Scotland an “absolute discharge” as their sentence. That means that they're not given a criminal record because usually a 16 or 17-year-old kid who's punched someone in the face—that's wrong obviously, it's not acceptable—you’re care-experienced, you're already in a society where there's going to be prejudice to you because of your upbringing. You don't have parents who are looking after you, you're on your own at 16-17, you then go from the looked-after care system to the uncaring system of the court, and you have no one, and then you’re criminalised so your chances of getting a job are decreased. So a judge at a low level could actually do something miraculous for that young person—divert them away. We have a local college in the region or area that I work in called West Lothian which are proposing the local college, it’s a technical college. The principal and vice principal of that college and managers of courses are in the middle of trying to suss out what brilliant courses and pathways could be open to young people who are vulnerable in the justice system. No catches, no exams, no formal courses, no formal education, but ways of bringing them in and trying to show them a different path, and that's happened just over the past couple of weeks. These are the areas that, I guess, looking at the bigger picture as to how a trauma-informed lawyer can look outside their own little tiny silo or box to think, “How can we improve the outcome for our clients beyond the court?” because for me, it doesn't stop when they leave the court. This compassion, I think, needs to be shown beyond that in a way that you’re not fixing them but you’re signposting them to their doctor, to the housing officer, to the benefits official, to the peer mentor who's got the lived experience to guide them in a way that you can’t without lived experience.
Myrna: What role do you think Law Societies and CPD program providers have to play in bringing this awareness and education to lawyers?
Iain: So very recently, the Law Society of Scotland have been very proactive and realizing that trauma, albeit in Scotland at the moment, is a bit of a buzzword and everyone’s trauma-informed and I guess it's a cool thing to say that you are and but not actually do it because the Law Society have actually provided a trauma awareness program. It’s online, probably in part because of Covid, they've deployed me in a couple of jurisdictions to go and tell them about what I'm doing at a micro level in court just so that it becomes understandable or transmittable. With your great permission, and it will be my intention to ask the Law Society’s CPD committee if they would put online a link to your podcasts which are brilliant, and a way to actually see on the ground what a trauma-informed lawyer looks like, and to talk about it with other people so. . . They probably won't want to hear my voice, but they will certainly want to hear the voice of Gabor Maté, who you've interviewed and who effectively is the guru of trauma, and the way that he speaks is so great, but that's fantastic. . . your guide, not the book, but the guide that you have provided about trauma-informed law I'd like to become available again. So I'm not good enough to write these things, or clever enough to write academic pieces, or clever ways of wording— I can only talk about my experiences, which may or may not help people, but these materials, I think, lawyers should and could access. I would suggest to the Law Society that we make trauma-informed practice mandatory, but they raise the issue and the Law Society have been very good, as have a few journals of the Scottish legal news, have uplifted this wisdom and a group of very positive lawyers who have coupled together have an organization called “Hey Legal” and they do work online, produce articles not in a fun and enjoyable way, but a way that gets messages across, and they’ve been very kind to me and the trauma-informed approach that I'd like to see other people taking, they’re being hugely supportive. So those messages are getting out there, I guess it's taking a bit more time than I would like, but that’s the nature of the beast. We live in a practice, certainly in Scotland and probably in Canada, which is very traditional, very old-fashioned, very stuck in its time. . . we still wear wigs and gowns, we still live in the past of what went on, so to change it dramatically is probably unrealistic, but I do think there is an urgency. There is a public health crisis, and mental health, and understanding trauma, which will be exacerbated tenfold next year when people come out of lockdown and their mental health is really affected, and if you don't understand that then not only are you missing your trick as a lawyer, but I think you're failing in your duties to your clients when you don't recognize what's going on with them.
Myrna: I totally support everything you said. The whole mandatory thing, absolutely. Here in Canada, I mean, I talk with law students and I'm increasingly being invited into more and more law schools to talk about trauma-informed lawyering which is really awesome, and I'm hearing more and more law schools both here in Canada and in America are adding my podcast to their course syllabus saying, “This is required listening”, and that's amazing, right. It's not so much about me and my message, but it's about the perspectives that all of the folks who I interviewed bring to this podcast, and I think that this education is necessary in law school because had I received an education in trauma, it would have changed the way I engaged with clients. It also would have changed the way I worked with witnesses, the way I took care of myself—I essentially didn't—I never turned my mind to psychological harm or vicarious trauma until I was, like, neck deep in it. It's so unnecessary, and if we could just give our up-and-coming lawyers a heads up on what the practice of law could bring to their life and how they can enrich relationships and look at the whole person as opposed to just the legal issues that they present, it's going to transform this profession and in my view, it's an ethical competency that we all have to have regardless of our practice area. And of course, I agree, and I think the status quo must go and it's time to embrace a new way of being for all the reasons you cited.
Iain: Yeah, amen to that. I think it's hugely important. Certainly I don't want to continue to be the lone wolf or voice banging on about these terrible things because, actually, if there are other lawyers who are listening to what I'm saying, their clients are also listening to what I'm saying about my client and may wonder, “Why are you not talking about me the way this lawyer’s talking about his client?”, you know, “He seems to give a shit”. I don't want my colleagues’ clients, I want them to do the same stuff about trauma awareness. I'm not doing this for. . . certainly not for financial gain because in one view, if you actually assist the client to get out the system, that can be costly. I mean, I can tell you that certainly a few years ago if a 16-year-old, 17-year-old boy walked through my door and is clutching a Coca Cola petition or a charge with 20 charges on it, I'd be rubbing my hands saying, “Here's the Golden goose”, whereas now, when he comes to the door, I'm thinking, “How am I going to get this kid out of the mess that he’s in?”. And that sounds very altruistic but it's true and it's maybe because I'm now in my 50’s, I've got three kids. . . I don't know if I look at things differently, maybe I've made my money from the system that we had, I'm hoping it's not for all those reasons— I would like to thought that if I knew this stuff 27 years ago A) I would have been a much better lawyer and B) that money would not have been my driver to not do it if that makes sense. I think I would have done it anyway. I don't think very many criminal lawyers start out as criminal lawyers because they think they're going to make gold, I think they start out because they want to help people. If you're mindful of that decision as to why you became a criminal lawyer, then you will not only want it or feel you should have this information, but you know you must have this information to be a better lawyer because I definitely think it makes you a better lawyer to be trauma-informed.
Myrna: I also read. . . you said somewhere, something about how this isn't the best business model to be trauma-informed especially not for a criminal defence lawyer.
Iain: And I think that's true. Sadly, I think the way the system is set up, certainly in Scotland, that the busier you are, the more money you make. The more charges a person has, the more money you make, the more they go round the revolving door of justice, the more money you’re gonna make. So I get that there is a disincentive on criminal defence lawyers who've already been punished by Covid, and certainly in Scotland, there has not been an increase in our income—a proper increase—for around 28 years, so at the moment there's a lot of industrial action going on amongst defence lawyers, there's some industrial action being proposed by prosecutors. I support that because I do recognize criminal defence lawyers are marginalized and of course nobody in public wants to hear criminal lawyers saying, “Oh, poor us, we're not paid enough”, 'cause all they view is fat cats. What they don't understand with criminal lawyers is that actually, we are not really the money machines that people think we are. People do criminal law, I think, largely for the right reasons which is to help people, give the most vulnerable people in society a voice and for me, that should be rewarded properly and it should be rewarded properly if we do our jobs by diverting people away from the system. Actually, we should be paid for that because unless we are, as a business, including my business, we’re not going to be proactive in doing that 'cause it doesn't make sense. We are paid what's called a fixed fee, so for a minor case, we may be paid around £300 or £500 depending which court it is. But if we were to divert that person away say, “Look, this person has suffered terrible trauma, do not prosecute that person”, we are going to get paid the sweet sum of £0 or $0 to do that, so nobody, however trauma-informed they are, that is not an incentive to do the right thing, whereas if they change the system to pay us, then I think we would because it can sometimes be a lot of work. You might be getting psychiatric reports, you’re then drawn into the unhappiness of their lives, and then to translate that to the prosecutor to say, “Please don't prosecute this person”, who's gonna do that? Nobody's gonna do that.
Myrna: I think that's a really good theme for today's conversation is: change. Like, why we need it. Change needs to come, and it needs to come now, and I really appreciate you being so open with me and sharing your experiences. I definitely can see, Iain, why you received Lawyer of the Year. I think you're amazing, you're brilliant and this knowledge, and this information, and this education can't come soon enough to lawyers, judges, law students, everywhere because the benefits outweigh any disadvantage.
Iain: I agree. I only agree about the disadvantages rather than how you think I was Lawyer of the Year, you can edit that bit out.
Myrna: Thank you Iain, for talking to me.
Iain: It's been a pleasure Myrna, and it's great to think that someone that you know on the other side of the world from where I am in Scotland is doing and talking the same language, and I know Helga is doing the same and there's others, there’s just not enough of us. It would be great to think maybe next year we're talking about our merry band of trauma-informed lawyers all doing amazing things for their clients and improving the justice system. Judges, maybe, start presiding with kindness and counterintuitively changing people’s lives, which, I think, will genuinely work.
Myrna: Well, we can keep hoping, and we keep talking, and keep educating, and the system has to change. It has to. Everything has to change.
Iain: Thanks very much for having me on your podcast—very kind of you.
Myrna: Thank you Iain.
Inspired? Are ya? I am. Thank you so much for listening. If you have any feedback, comments, you can find me on Twitter, Instagram @TheTraumaInformedLawyer Oh, Twitter, the Trauma Informed Lawyer podcast has its own site now, it’s @TheTILPodcast so make sure you connect with me there, and if you haven't already given this podcast a rating and a review on Apple Podcasts, please do so. People read those, I read those. So until next time, take care everyone.