Kim Hollis QC

WITH CECILY DAY

Journeying from years in the UK Criminal Bar to a year with the 17th Karmapa in India

Q. Was there a particular moment, as you were growing up or studying, when you decided that you wanted to become a barrister?

I never wanted to be a barrister. It’s been the most magical journey. My father, who has passed away, was a Sikh and my mother is English and they met just after the war. My grandfather on my father’s side was an independence freedom fighter with Gandhi, and he was a barrister. He was involved in the Amritsar massacre and he was charged, by the British government at that time, with incitement to riot. He was imprisoned awaiting trial before being acquitted. Because of his imprisonment in such awful conditions, he died very young. My father left India when he was seventeen years old, came to the United Kingdom and never saw his father again, so I never knew my grandfather. But all my life when I was growing up, I was always told, “you’re going to be a barrister, like your grandfather”.

I wanted to be an actress. You’ll find that lots of barristers always wanted to be on the stage. In fact, many years ago, in the 17th or 18th century, barristers and actors used to interchange. Barristers, when they didn’t have work, used to go and be actors on stage in the West End. I wanted to be an actress, but of course that was totally unacceptable for an Indian father. He was terribly clever and he said to me, “yes of course you can be an actress darling, but just get your law degree”. So then I qualified and I did a pupillage in a very flashy set of chambers called One Crown Office Row, where they did commercial and civil and a tiny bit of family law and crime. There was a lady there called Betty Knightly and Betty Knightly was in charge of the family law and she got me into the set. In September 1979 to September 1980 I did my pupillage. In those days, if you were a woman at the Bar, you were expected to do family law. And if you didn’t do family law, you then did crime, and there was really very little hope for you if you did commercial. My actual pupil master was a lovely man called Michael Irvine, who was an MP. I did my next bit of pupillage with someone else in the set called Terrance Walker. Terrance was a criminal advocate and that’s when I started to do crime.

Q. Prior to taking silk in 2002, did you have any preconceptions of the UK Bar and if so, how did your entrance into the Bar align or contrast with these ideas?

No, I had no preconceptions of the UK Bar. People have often asked me, “when you were a junior barrister, were you ever discriminated against, because you were a woman?” Only once. Only once, which isn’t bad actually, in the circumstances — bearing in mind I was at the Bar in the early 1980s. That was really because the chambers didn’t realise my background and my heritage. I’ll never forget it. They gave me an interview for a tenancy and they almost offered me the tenancy over the

phone. When I walked into chambers, their faces just fell. It was just amazing. They wanted to revoke their tenancy offer. I wouldn’t let them off the hook, because I could tell. I remember coming out of there and feeling really awful. All of my colleagues who I had been at Bar school with — the Inns of Court School of Law with — had all gotten tenancies and I hadn’t. Even the women. At this point, I was thinking, “is this to do with the fact that I’m a woman? Is this to do with the fact I’m half Asian? I’m not quite sure what’s going on here”, as I had done pupillage in a very reputable set of chambers. I remember sitting in the Middle Temple library with the Bar list, and looking down the list and thinking to myself, “you need to lower your sights as to the type of chambers you’re going to apply to”. So I started looking down the list of chambers and I found a set of chambers, where it had a huge diversity of tenants. So I wrote a letter and I put it in my handbag and I walked around for a week as I was so disheartened that I didn’t want to post it. I posted it and the Head of Chambers, within the following day, rang me up and asked me to go and see him. He was an absolutely wonderful man. He was called Tunji Sowande and he was the first black judge of the UK. He gave me a chance. He said to me, “we’re not the flashiest chambers in the Temple. I can’t guarantee you tons of work, but I can guarantee you a couple of briefs a week. What I want you to do is go away and see if you can find somewhere better and I’ll leave the offer open to you for a month” . I went home and my Dad was wonderful and he said, “that’s so exciting — you’ll just be brilliant wherever you go, so just take it”. And I did. It was wonderful, it was a real advantage. I think they really did me a service in a way. What happened was, it meant that instead of relying on the clerks in the established sets to direct me in practice and to give me the work, I was able to find my own work and build my own practice which I was in control of. So actually, I became much more successful ultimately, than some of my colleagues that I was called to the Bar with. It made me hungry to survive. If I had got into the set of chambers where I’d been a pupil, I wouldn’t have been as hungry. I knew that there would have been a constant stream of work. But in myexperience there wasn’t a constant stream of work.

Q. As a bencher at Gray’s Inn, one of the four Inns of Court, would you say there’s anything in particular about the identity of Gray’s Inn that sets it apart from the other Inns?

About a week ago I hosted a lunch here with the Prime Minister of Belize and all the ministers who were here for COP26, and we were talking about the Inns. Gray’s is the smallest of the Inns, but it is, I think, the friendliest. And we all think it’s the friendliest. Gray’s has always been a very accessible Inn: its masters are accessible and its students are well supported. We have the same functions as some of the other Inns but I think it’s great for the students of all the Inns to be able to mix and talk to the Court of Appeal and the High Court judges.

Q. As the UK’s first female Asian QC, what are your personal reflections on the current success of the UK Bar in achieving gender balance and diversity and what would you say are the necessary measures and pertinent points of discussion in securing the highest level of gender balance and diversity within the Bar?

I don’t think that the pace of the gender and indeed the race balance has been fast enough. I was Chair of the Equality and Diversity Committee of Bar Council for about ten years. For many years I have been in favour of targets and quotas. I have been criticised for that view because people have said they don’t believe in

targets. People do not understand the difference between positive action and positive discrimination. Positive discrimination is illegal. Positive action is not illegal. Positive action is quite important as far as I’m concerned. I was interested to hear last Saturday, as I’m now on the Bar Council as the representative of the Inn, that the Bar Council is now looking at encouraging targets.

The thing that’s worrying me most at the moment is that there has been a real push, obviously, to try and encourage and try and put in place measures that are going to assist in relation to the diversity of the Bar. But that is not being considered in relation to the brain drain that is going on at the more senior levels of the Bar. So, it’s all happening at the bottom, but it’s not happening at the top. As usual, at the top, I think there is a drain in relation to equality and diversity. The pandemic has, I think, particularly badly affected women. I also think it has very badly affected the race diversity as well. I know that the Lord Chancellor’s Department of Judicial Appointments Commission is trying to appoint in the tribunals and in the judiciary, a more diverse judiciary. But we’ve been telling them for years that they should have been doing this and they weren’t going fast enough and now they’ve really speeded it up. For those who are coming through at the bottom now, it’s going to take them thirty years. If those of us who are at the top are leaving because we’re not being supported, they will not have the mentors, they will not have the role models. Everybody will go.

The Criminal Bar is dying on its feet because of legal aid and because of the cuts in legal aid in the criminal justice system. As usual, at the Criminal Bar, it will be the women who will suffer first because, first of all, we have always been directed towards sexual offences work. We find that in corruption and fraud and all the big trials, the men are always briefed over the women. When you make those points, they say, “oh well, it’s the clerks”. Then you speak to the clerks and the clerks say, “oh well, it’s the solicitors”. And then the solicitors say, “oh well, it’s the clients.” So, we need to do a complete rethink. But you need to give people the chance to prove that they can do the work consistently. That’s why you’ve got the pay gap, at the top as well. The pay gap goes throughout the Bar from the bottom to the top, as far as women and race is concerned.

Q. What are the greatest challenges that you’ve encountered in your specialisation of criminal law, over the past 30 years?

I think it’s to do with the gender balance of work. It’s really, really difficult for a woman to build an independent practice, as opposed to relying on the clerks. When you’re a woman, particularly in criminal law, although it’s probably the same in every section of the law, and you’re a woman with a young family at home, you want to do your work and you want to go home to your children. But you’re expected to go out, into the city and entertain with the clerks, the solicitors and the clients, to bring in the work. But it’s very difficult for a woman to tread that path.

I made sure that I just concentrated on a few solicitors who were very loyal to me. What’s really interesting is in the years before I got silk, my biggest work was, at that time, being sent to me by a very successful female solicitor. And she understood. I didn’t have to run around impressing her, but because I was pigeon-holed with her, I was not exposed by the clerks to other aspects of work.

Q. How would you say your experience advocating in criminal cases differed as a junior barrister versus as leading counsel?

Very different. As a junior barrister, you’re pretty much on your own with the solicitors and the client. But as a Silk, you’re heading a team. When you’re a junior barrister, you’ve got the Defendant, you’ve got the solicitor, who’s usually a junior solicitor, and then there’s you. So really, yes you’re in charge and everyone’s looking to you to be instructed as to what to do, but you are very much negotiating the way and telling everybody what to do with the case. When you’re a Silk, you’ve got a junior below you, you’ve got a senior member of the firm of solicitors with you, because you’re a Silk. And you’ve often got another run-around as far as the solicitors are concerned. And then you’ve got the client. You’ve got a team of about four or five people that you’re in charge of. So you’re able to delegate a lot more. It’s very good to have another mind working with you on a case from the Bar, particularly in relation to criminal cases, as people are bringing different skills to the table. But you’re ultimately in charge and the Defendant always looks at you.

Q. What’s your connection to Belize and having been called to the Belize Bar in May 2021, what would you say are the main similarities and differences between the Belize and UK Bar?

The Caribbean jurisdiction is based on the English Common Law system, so it’s exactly the same. It’s very easy to transition from the UK into places like Belize and the British Virgin Islands, where of course I was Director of Public Prosecutions (DPP). It’s the same, there’re no differences really.

Unlike the UK, you don’t know the judges. In the Belize courts, I do not know what the judges are like. But again, my junior is from Belize, so he can tell me his perspective. I can say, “how is this judge likely to react to this application?” It’s been particularly difficult, of course, because it was during the pandemic. It’s bad enough, during the pandemic, having to be in court with a mask on. But when you are in court with a mask on virtually, it’s almost impossible.

Q. How has technology and the growth of online presence affected the way trials operate?

I did a hearing in July in the Magistrates’ Court in Belize, and I was making submissions on the law as to why the case should not go to the higher court for trial, on the law. First of all, you have the time difference (they’re seven hours behind us) so even though the Magistrate very sweetly sat at nine o’clock, it started at four, our time, and went on until midnight. As it was over a screen, I didn’t have to have a mask on. But the Magistrate and all the other counsel in court had masks on. The Magistrate was quite softly spoken and there was no amplification. It was really, really difficult and half the time I couldn’t hear what he was saying. I could only say so many times to my junior in court, “could you ask the Magistrate to speak up please?”. What I ended up having to do was send emails to my junior through the computer. It was really, really difficult.

Q. What is the importance of the Witness Anonymity Act?

I think a huge distinction needs to be made between criminal cases and other cases. Criminal cases depend so much on interaction with the witness. The proof of that is in the anonymity provisions. Witness anonymity is based on the fact that in history, in criminal cases, the Defendant is always entitled to know the identity of his accuser.

For example, a woman comes along and says that she has witnessed the Defendant stab and effectively murder the victim. But she is so frightened, she does not wish her identity to be revealed to the Defendant, because, she says, of the community that she lives within. There’s a world of difference in relation to the way the court and the jury in particular would assess her evidence if, a) on the one hand she was a stranger or b) she was a spurned girlfriend. If she was a stranger, and has no axe to grind, you would probably be more willing to accept her evidence. If, however, she was a spurned girlfriend, you would start thinking about why she has identified this man as the man who stabbed the woman. But if there’s anonymity, you would never know the difference. You would never know because you wouldn’t be allowed to know her identity. Hence, the provisions of the Witness Anonymity Act. The provisions of the act have made various layers of anonymity. One thing the act allows is if a witness is giving the evidence as Miss A, either behind a screen, or remotely, there are three sets of people who are entitled to see her: the jury, the judge and the counsel. The Defendant isn’t. But those three sets of people are entitled to see her give her evidence because it matters as much as the way the witness gives their evidence as to what they say.

Q. You were working in your first year as DPP during the time that Hurricane Irma and Maria devastated the British Virgin Islands and you wrote in an article of your time in Belize that: ‘in just a few hours our court houses were destroyed, throwing open the doors of the prison, releasing desperate convicted child sexual offenders as well as murderers’ (“Counsel Magazine”). What were the immediate and long-term impacts of the Hurricane on the criminal justice system? A. Immediate was the criminal justice system was completely destroyed and devastated. We had no courts. What do you do when you have no courts? We would have courts in the police station and hearings in the police station. It was a very small area.

I had a murder case, where I went in to prosecute it for the first hearing and the Defendant is sitting a metre away from the victim’s family. The Defendant if he wanted to run past us and assault us, could have done so very easily. They did have police officers there. We had a temporary Magistrates’ court built. The first thing they had to do, as the prison was breached, was catch the convicted defendants and send them to a secure facility in St Lucia. The whole question came up about the prisoners’ human rights, as they were not able to see their families. At one point, there was a question as to whether they were going to send unconvicted prisoners. I advised the governor, absolutely not, you cannot send unconvicted prisoners.

The aftermath of a hurricane on a territory like the British Virgin Islands is horrendous. You have no electricity. You have generators. You have no roof over your head. You have no internet connection. You have no communication. You have nothing really. Water, food, the whole works is in short supply. You can’t flick a switch and turn on the electric lights or the air conditioning –— it’s a really difficult way to live. Maria hit on September 19th but I was in the UK and I was asked to go back on October 20th. I flew in on the 20th and they had nowhere to put me. I was put in a hotel room where there was nobody else in my hotel. All my belongings had been lost in the hurricane. They kept moving me. They couldn’t secure accommodation for me. I had no security guards as the police were needed to do other things. In the end they housed me in

the middle of the east end of the island amongst the families of those I’d had convicted of murder. It was a really difficult time.

As far as the long term, you couldn’t have Crown Court trials, because you had no juries. They got the Commercial Courts up and running really fast. They didn’t really consider the Criminal Courts a priority, which was wrong. I kept trying to tell them that, if the security of the BVI was questionable, people were not going to come to BVI Commercial Courts. The security of the whole island was at risk here. It was a really, really difficult time. It’s just about getting back to normal now. But just when it was trying to get back to normal, then the pandemic hit.

Q. What was your experience like working as Foreign Legal Adviser to His Holiness 17th Karmapa in India from 2015 to 2016, and what did your role as Foreign Legal Adviser entail?

It was just fascinating. You have to be careful as the Indian Bar does not allow English barristers to work in the Indian courts. So it was in an advisory capacity. It was a case where the 17th Karmapa was implicated in a money laundering investigation. The advice had been received in India and some of his followers wanted independent input from a UK QC.

It was just the most amazing experience. They wanted me to go out there, meet him, read all the papers and write an advice. I had to do it in a very careful way because I’m not allowed to work in India. So I did. I flew to Delhi. I got all the papers and read them. Then I was flown up to Dharamshala, which is the seat of the Dali Lama and the Karmapa. I had a monk assigned to me, who was wonderful. He was absolutely lovely. He looked after me. I was put up in the most amazing place. It was just really, really special. It’s the best thing that I’ve ever done in my life, and I just loved it.

That was before I went to the BVI and it makes you start thinking laterally about the criminal work that you do. At the moment I’m being consulted in relation to war crimes and UN sanctions. That’s not to do with walking into a Criminal Court. It’s to do with advising a government who feels as though they might have UN sanctions against them because the UN feel as though they have not investigated war crimes. It’s sort of another stage of your career. I find that I’m at a completely different stage of my career now. I suppose the real division came in 2016, when I held the role as the adviser to the Karmapa. After that I went out and did the BVI and once you’re in the BVI, and you’re the DPP, you’re advising on national security, you’re advising in cabinet, you’re advising the governor, who then comes back to the UK Foreign Office and reports the advice of the DPP. Since 2013/2014, I’ve been advising the Foreign Office. I quite enjoy that advisory capacity.

Q. In your role as Foreign Legal Adviser to the 17th Karmapa, what is your perspective on the interplay of law and religion in this context?

The allegations were made as a result of religion. The person who had made the allegations against the 17th Karmapa and the Dali Lama, was somebody who was a pretender to the 17th Karmapa. Somebody who basically believes that he is the 17th Karmapa, not the person who is and has been selected by the Dali Lama. I could not believe the case and what they had concocted when I read it. If you are the Dali Lama or Karmapa, same for the Pope, and you have religious followers globally, they are going to send you money because they want to, in every currency of the world. That’s not money laundering. It was effectively something

as basic as that. It was all concocted around religion. The reason for the case was religion.

Q. Is there any memory, anecdote, experience or even piece of advice that you would like to share with readers and aspiring barristers?

All I would say is that having said I never wanted to be a barrister, my father obviously knew better than I did the type of career, independence and security he wanted for his daughter. As a career for a woman, it’s a fabulous career. I’ve never regretted a day of it. Yes, obviously when the children were growing up, it has been difficult to balance it. Being a criminal barrister for me has been a magical journey. Particularly, as I just said, as it’s developed. I’ve always been able to expand it in the way that I wanted it to go. No way am I going back into the Criminal Court, having been the DPP of the BVI. Having been the DPP, you can’t then go back into the Bar. I’m not ready to hang my hat up and do nothing, as I’ve always done something. But I want to be able to pick and choose what I do. So now it’s just sort of evolved. People who have cases in the Caribbean are asking me to work in the Caribbean. So now I’m thinking I’m very happy to go out to the Caribbean on the odd case, and go out to Belize, Bermuda, and the Cayman Islands. But I will pick and choose the cases I want to do. What’s really interesting is when I got on the plane to go to the BVI, I knew not a soul. When you’re doing that at my age, 16 years in silk, I thought that now is the time to make a leap of faith and enjoy it and see what comes of it.