Advocating for change: interview with Laura Hoyano

From Northern Alberta to Oxford: the pioneering contribution of a Canadian barrister to legal scholarship, practice and public policy in England and Wales. Interview by Lynne Townley

Professor Laura Hoyano is perhaps best known amongst practitioners for her empirical and doctrinal work on vulnerable witnesses and defendants, all forms of legal redress for child abuse, and sexual offences in general. Most recently, her research into s 41 of the Youth Justice and Criminal Evidence Act 1999 (YJCEA 1999), undertaken in the wake of the Ched Evans case, has provided a unique evidence base from which to evaulate the necessity – or not – of potential revisions. When I meet Laura in Oxford for this interview, it soon becomes clear that the overarching objective in her research is not just to identify areas where law reform is required – but to advocate for change with those who have the power to do so.

Her publication profile is unusual in engaging in empirical studies as well as doctrinal and theoretical research, and in areas as apparently disparate as the tort of deception, professional negligence, medical law and ethics, human rights, and the law of evidence. She has always been interested in locating intersections and tunnels between areas of law commonly regarded as disconnected: ‘I have refused to compartmentalise my work because juridical boundaries are, in reality, often illusory: for example, a child abuse case may be litigated at the same time in the criminal and family courts, with compensation litigation pending raising tort and human rights issues.’

In the mid-1990s Laura was part of a research group at Bristol University commissioned by the Home Office to undertake a ground-breaking (and still unique) empirical study examining the collection and assessment of evidence in live cases of child abuse from first complaint through to trial. The 1999 report remains widely cited around the world. Their findings influenced the introduction of special measures for vulnerable witnesses in criminal cases through the YJCEA 1999, perhaps the most significant development in the criminal justice system since PACE (Police and Criminal Evidence Act 1984).

Initially Laura was sceptical about intermediaries, as the legislation on its face contemplates that they would conduct all questioning of vulnerable witnesses. But now that their role has been redefined in guidance as an adviser to the court and counsel in performing their respective roles, she is an enthusiast, considering this to be the ‘most innovative measure for vulnerable witnesses in the common law world’. Laura has written the chapter of Blackstone’s Criminal Practice on special measures since 2012.

In 2007 Laura published her seminal work on child abuse, which analyses the investigation and adjudication of child abuse allegations in criminal, family, tort and human rights law, including the rules of evidence and procedure, in no fewer than 75 common law jurisdictions.Child Abuse Law and Policy across Boundaries (first edition co-written with Caroline Keenan) was awarded the Inner Temple Book Prize 2008, with Lord Justice Rix describing it as ‘an invaluable source of ideas and law, theory and practice, not only for practitioner and academic but for policymakers’. Laura expects to publish the (single-authored) new edition in 2020 – ‘I feel like a flagging marathon runner chasing an express train, as I have to keep rewriting due to the pace of developments worldwide,’ she laments.

It was Laura’s experience at the Bar that led her to observe how recent empirical studies into the cross-examination of sexual assault complainants under YJCEA 1999 s 41 were flawed, because the background to consideration of the issues, and legal argument, were not seen by the observers in the courtroom, leading them to infer that there was widespread non-compliance with the legislation.

Her 2018 study, The Operation of YJCEA 1999 section 41 in the Courts of England & Wales: views from the barristers’ row, commissioned by the Criminal Bar Association, was the largest empirical study of its kind in the common law world. It collected data on all types of sexual offences (not just rape), and all ages (not just adults) and genders (not just females) of complainants.

Its methodology was unique in collecting data from prosecuting and defence barristers about what happened in the robing room or in pre-trial discussion, as well as inside court. Her findings contradicted other studies in concluding that s 41 was rarely flouted: applications were generally carefully considered by counsel and narrowly focused, and rulings did not permit wide-ranging questioning on previous sexual history. Judges and counsel considered whether such evidence could be adduced through means other than cross-examination, such as including it in agreed facts or referring to it in prosecuting counsel’s opening speech; where questioning was necessary, every effort was made to avoid causing complainants any further distress. Significantly, while most barristers thought that s 41 was poorly drafted and overly complex, not one thought that it should be made more restrictive (as campaigners have contended), and almost all thought that it worked in practice.

The publication of the study captured the immediate interest of the Ministry of Justice, the Attorney General and the Home Office (the MOJ’s recently published s 41 study not having escaped Laura’s criticism!) She was appointed by them to the cross-government and cross-agency subgroup of the Criminal Justice Board conducting the widely publicised end-to-end examination of obstacles to the prosecution of serious sexual offences. Laura represents the CBA as well as contributing her academic expertise. She has been reinforcing the case made by Caroline Goodwin QC, Chair of the CBA, in each Monday Message about RUIs (aka ‘Released Under Investigation’), disclosure traps, darkened courtrooms and idle Recorders while trials – including those with young complainants – are repeatedly rescheduled.

Laura tells me she has also been wrestling with writing a book, with Nicholas Bamforth, on human rights in the contemporary UK constitution, but the project has been repeatedly delayed ‘because no one can figure out what the UK constitution is these days,’ she says. It will be submitted to the publishers this year, she vows, as its subject matter is now more important than ever before.

Undoubtedly, a powerful contribution to legal scholarship, practice and policy, yet Laura could easily have taken a different path. Born into a rural community in remote Northern Alberta where winter temperatures of minus 40 degrees were common, at school she found herself battling against the ‘negative expectations’ of her teachers. Laura fought back, supplementing her education with correspondence courses, and is now a zealot about access to higher education and the Bar in her current roles in England.

After a degree in history and masters in medieval history at the University of Alberta, her route to law was more of a falling than a calling. She had been clerking at the Alberta Legislature and working as a civil servant drafting legislation, when her fiancé, now husband, Allan started to read law. Laura couldn’t think of anything better to do than join him, so she ‘fell into the law’. Finding the so-called ‘socratic’ teaching methods uninspiring, though, greener pastures often beckoned. ‘Fear of failure can be a remarkably effective motivator when you don’t enjoy your work’ and despite her limited enthusiasm Laura won the Gold Medal for the highest results in her class over three years. She recalls passing Land Law with the assistance of Allan’s cartooning skills, with moose playing the various roles in arcane transactions such as ‘springing uses’ (use your imagination or ask a Chancery colleague). Laura now uses cartoons to illustrate the complex facts in pure economic loss tort lectures in Oxford, which students find an effective learning tool.

Pupillage was at the Court of Appeal of Alberta, where she worked with trial and appellate judges hearing both civil and criminal cases. During her final exams the Canadian Charter of Rights and Freedoms became incorporated into the Constitution of Canada and legal horizons completely changed. Counsel could ask the court to strike down any federal or provincial statute or common law rule on human rights grounds, uninhibited by precedent (at least then!). She worked on the first two criminal Charter cases to come before the Supreme Court of Canada, which defined the parameters for Charter analysis of the proportionality of an interference with a right. Realising that the law could be exciting, she was – finally – hooked!

Laura practised as a barrister in the commercial litigation departments of two law firms in Edmonton, becoming (at that time) the only female partner in the latter. Over 10 years Laura built up a successful practice in commercial, insurance and catastrophic personal injury and medical law, with an emphasis on appellate work where she loved arguing the law.

Fate intervened when, on a stop-off in England following a trip to Germany to brief expert witnesses for a case involving the fatal crash of a triple-looping rollercoaster, Laura found herself sitting on the steps of Blackwell’s famous Oxford bookshop wondering whether she would go to her grave with her lifelong dream of studying at Oxford unfulfilled: ‘I always remember that moment during admissions because I understand the applicants’ longing.’

It took two years to clear her diary, plus a partnership sabbatical and scholarship from the Canadian Bar Association before Laura could take up a place at Balliol to read for the BCL. Here she discovered that academic law could be taught in a way that is just as stimulating as practising it. ‘It was an extraordinary privilege to be sitting in a tutorial with a leading authority in the field and just one other student, where legal issues could be explored without inhibition.’ (Laura’s Restitution tutor, Professor Burrows, joins the UK Supreme Court this year.)

Laura returned to Canada to find her diary fully booked for another two years. By this stage, she had recognised that her heart lay in academia: ‘I wanted to think about what I wanted to think about, not what the next brief demanded of me for however many years it took.’ This had to be in England, because of the tutorial system. Her first academic post was at the University of Bristol. She was then invited back to Oxford – first to Balliol, then a tutorial Fellowship at Wadham, where she remains to this day, making her mark on practice and procedure in criminal trials and beyond.

CV: Laura Hoyano, BA (Hons History), MA (History), JD, BCL, MA (Oxon) is Associate Professor of Law and Senior Research Fellow at Wadham College, Oxford University; a practising barrister; a Fellow of Middle Temple, and consultant to governments and statutory bodies. Prior to coming to England to study and then work, she was an established barrister in Canada. Laura was called to the Bar of England and Wales as a transferring barrister in 2016, becoming a tenant at Red Lion Chambers where she had been a door tenant. She was counsel for victims and complainants in two investigations at the Independent Inquiry into Child Sexual Abuse. She is a member of Red Lion’s practice groups in international crime and human rights; serious crime and serious sexual assault; and regulatory law, public inquiries and inquests.
Downtime: Laura and Allan live on a narrowboat when they are in Oxford. She takes refuge from the grimmer aspects of her academic and practice work by choral singing in Oxford and Italy (where they have a retreat in Tuscany), quilting, reading Jane Austen and crime thrillers, and attending ice skating competitions (she skated competitively in Canada).
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Lynne Townley

Lynne Townley is a barrister and lecturer on the BPTC at City Law School, University of London. She is the Chair of the Association of Women Barristers.