Felicity Gerry QC: 25/25 vision

To mark 25 years at the Bar, Counsel asks the silk known for poking the system with a sharp stick for her career highlights, the global challenge post-Jogee and thoughts for the future

My accent has been a constant feature in attempts to ‘pigeon hole’ me at the Bar. Over the years I have become more determined to keep it – if I was to succeed, I would succeed as me. I was born in Essex and brought up in Nottingham so I have an unusual accent. I also dropped out of school to ride horses and, when I went back into education, I went to a further education college and a polytechnic so I avoided the cut glass that was trained into my mother and the ruler that was used on my father’s top lip to teach him to speak ‘properly’. My accent has become less of an issue over time but, I still have to deal with the Essex Girl jokes.

My grandfather worked for three Prime Ministers. My grandmother and other family members worked at Bletchley Park. My mother was one of few girls in the 40s to go to grammar school. My father lined the route of the Coronation when he did his National Service in the RAF (with Michael Williams who was married to Dame Judy Dench). I may be related to Elbridge Gerry who refused to sign the US Constitution until it had a Bill of Rights. On any view I have the sort of heritage which one might expect at the Bar but I have never used it. My schooling trajectory gave me few qualifications so at A level I chose history, English and Media/Communication studies thinking I would be a journalist – I had grown up in Essex with relatives ‘in print’. I chose law as a suitable pathway.

Along the way I loved to act but realised I could only ever play the ‘wicked witch’. On work experience with barristers (one didn’t speak to me all day) I decided that dressing up in black robes and going to court for an argument would suit me. I was given a scholarship by Middle Temple which supported me at the Inns of Court School of Law but I was also censured for wearing trousers in Hall. I made 77 applications for pupillage and only had 12 replies; I assume because I did not go to the ‘right’ school. I took an offer at chambers in Leicester with an award of £250 a month. My rent was £250 a month. I had a lucky break when I had a brief in the youth court and, against the odds, I won. After that I have been well supported by clients, solicitors and some colleagues who know I will take on a challenge. As well as being Queen’s Counsel, I now write for the legal press so I feel I have come full circle.

"My advice to young women starting out is to remember you are fabulous – they just don’t always notice."

I am now in Carmelite Chambers, London and Crockett Chambers, Melbourne and I have had ad hoc admission in Hong Kong and Gibraltar. When I was in Leicester, I completed a 10 year strategy to go to London. When I was in London I had a 10 year strategy to take silk. After that I decided to internationalise myself, although access to suitable pathways was again problematic as there can be some continued snobbery abut a ‘criminal practitioner’. Thanks to a job opportunity for my husband, I have achieved internationalisation via an unusual path which has included seven years combining my practice across jurisdictions with teaching and academic research. I am now Professor of Legal Practice at Deakin University where I teach Modern Slavery Law and I am developing an Advanced Legal Practice Unit on Advanced International Legal challenges. I am on the Council for ANZ [Austrailan and New Zealand] Society for International Law and commonly advise on international litigation, including a current challenge to logging in Papua New Guinea.

I think what drives me is the endless fascination with three topics – women and law, technology and law and reforming justice systems and, in these contexts, not what the law is, but what it should be. I tend to call this ‘poking the system with a sharp stick’.

In terms of career highlights, there are many but here are six which perhaps best reflect me as a person and may inspire those who have to take an unusual course to achieve their goals:

I was briefed many years ago to prosecute a case where an enormous and dangerous ‘pimp’ had raped one sex worker and beaten another with an iron. The women had gone to the police together because he was so out of control they thought he might kill the next woman he had access to. The allegations were tried separately. I was laughed at in the robing room: ‘A prostitute rape, you’ll never get that home!’ They were incredibly brave women. There was supporting evidence – including a triangular injury from the iron. The prosecutions were successful. I now rarely prosecute but in the 20 years I had with a mixed practice as a junior, facilitating women and children to give evidence was a challenge I was determined to effect.

When I was co-authoring the first edition of The Sexual Offences Handbook, I made an enquiry to the Crown Prosecution Service about the creation of female genital mutilation prevention orders. As a result, I was asked to train their lawyers and I published an article in The Guardian about the issues. I was then asked to be part of the Bar Human Rights Committee team who drafted the submission that changed the law on FGM in the UK. I am very proud that we improved the substantive law for the benefit of women and girls and created FGM prevention orders. Sometimes there are areas of law that you can work on which do not involve a brief.

I helped change the law on reproductive rights in the Northern Territory of Australia where termination of pregnancy was still criminalised in a range of respects, through joint research with health professionals. Working across disciplines is very interesting and I think the links between health and law are rarely properly addressed in the criminal justice system.

I was able to assist lawyers in the Philippines to achieve a reprieve for a woman on death row in Indonesia for transnational drug trafficking where we raised legal issues about her human trafficking status. I am prepared to see that sometimes the person in the dock is also a victim. I see international commitments to protection of human trafficking victims who commit crime as one mechanism for balancing criminal justice systems for vulnerable defendants.

I led a successful petition for mercy for a young Aboriginal man. The appalling issues in complicity and mandatory sentencing which arose in Jogee allowed me to assist someone who had been very unfairly treated which just shows the importance of international practice.

I am currently instructed on behalf of women and children in Al Hawl camp in Syria in a case that I hope will develop the law on duties of governments to their own citizens, as well as achieve repatriation for them – the visibility of women in criminal justice systems is often in the role of victim and then they are doubly victimised by the state – here by being held in camps when they have a right to return home. It is such issues that keep me furious and drive me to challenge the system as much as I can.

My interest in defending human trafficking victims who commit crime started long before the Modern Slavery Acts in the UK and Australia but when I defended a man accused of conspiracy to import illegal immigrants into the UK from India via South Africa. It was clearly a case of an indentured servitude arrangements before that was legally recognised as a crime. My client was the only one out of 26 defendants to be acquitted. He was convicted of a false passport offence but still received less of a sentence than others in the same case. Later I was instructed to defend a woman accused of human trafficking who had clearly climbed the ladder of a criminal organisation to survive but this was not accepted in her trial and she was convicted and sentenced to prison. I took the view that both cases failed to get to grips with how the criminal law should work in this context.

Once I started working in a university, I chose this as my topic for research. I am also interested in technology and the knee jerk reactions to regulation of the internet so I am combining my defence perspectives. I hope my research will contribute to more consistent implementation of international commitments to protect human trafficking victims who commit crime and less bias in the development of technological investigative tools and online courts.

Most lawyers know me from leading in the Supreme Court decision in R v Jogee which corrected an error of law in complicity. Judges had decided, deliberately in my view, to lower the mens rea from intention to foresight. It took 30 years to correct the problem and only after hundreds of people had been wrongly convicted as a result of a miscarriage of law. Other jurisdictions still make the error and in England and Wales, courts have wrongly blocked appeals by creating a new ‘substantial injustice test’ which may apply in change of law cases but here is being applied to error of law cases.

Since Jogee I have had 12 cases in four jurisdictions trying to sort out the injustices which perpetuate in the application of complicity at trial and on appeal.I feel it is my global challenge. I am not winning but I keep trying. Three appeals are the subject of applications to the ECtHR on the lack of access to justice created by the appeal barrier of ‘substantial injustice’ which I see as a back door restoration of the abolished proviso. I am still shocked by the efforts of prosecutors and courts to ignore a factual matrix and simultaneously search for liability. Such approaches do not presume innocence, unbalance trials and stretch ethics. In my view, it is inextricably linked to the politics of conviction over principle.

It is a battle to keep prosecutors and judges under control that requires defence advocates to be robust and determined in the face of injustice, bias and privilege. It is very much the story of a female silk and my ultimate war story.

I have developed a defence practice where the rest of the world considers all my clients to be abominable. It is in these extreme cases where it is the greatest challenge to maintain the rule of law and procedural rights. Most alleged terrorists are young men who have been radicalised by rubbish on the internet. It annoys me that we have created offences which label the feeling a crime gives (terror) rather than focusing on conduct and culpability as we usually do in criminal law. It turns the courtroom into a somewhat militaristic atmosphere and reduces judges to mouthpieces for rhetoric on sentence about condign punishment and renouncing ideologies. It is most distasteful and I feel I am capable of keeping a fair trial on track so that if convictions occur they are properly but not easily won. I also think it means I am doing my bit for the visibility of women in court as jurists rather than victims.

"It is a battle to keep prosecutors and judges under control and that requires defence advocates to be robust and determined in the face of injustice, bias and privilege."

Ultimately, I am really resilient and I have family whom I love and love me. I disconnect from dumb judges who think they are disciplinarians or self-interested counsel who want someone to bake them a congratulatory cake. I get very tired. I comfort eat. I have good days and bad days. I worry about the bad days but I pick myself up and carry on. I take time off and I find the academic issues more interesting than the latest squabbles online. I have 87 academic publications on ORCID. It didn’t stop the Supreme Court suggesting that one of my arguments in Jogee was ‘hopeless’. They were wrong – my three-legged beagle knows and he cares for me.

How have I managed to stay at the Bar for so long? My mother would say by hard work bravely done. I think my three children would say because I married the BFG, I don’t cook or iron and I rarely drive. It has been a long and bumpy 25 years but my greatest pleasure is my wonderful family.I could tell you all the stories of sick babies, grumpy teens, lost holidays, delayed fees but they are the downsides of being self-employed in a profession that has not respected women and where politics is winning a battle to eradicate challenging lawyers.

My advice to young women starting out is to remember you are fabulous – they just don’t always notice.

For the next25yearsI want to keep battling on, making sure human rights issues are addressed in the most extreme of cases and to make my contribution to the visibility of women at senior levels in court. I will do my best to continue poking the system with a sharp stick, supported by my husband and children and my dog. Like Papillion, I’m still here and mostly I think what helps younger women lawyers to keep going is to see counsel, like me, in silk.

Professor Felicity Gerry QC LLB, GCUTL, LLM is at Carmelite Chambers, London and Crockett Chambers, Melbourne and is Professor of Legal Practice at Deakin University.

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Felicity Gerry QC

Professor Felicity Gerry QC LLB, GCUTL, LLM is at Carmelite Chambers, London and Crockett Chambers, Melbourne and is Professor of Legal Practice at Deakin University.