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JUDICIAL REGISTER: Ex-Judicial Investigator responds to top judge’s claims a register of judges’ interests may affect judicial recruitment – “If a lawyer were put off by having to be open and transparent it does raise questions about their suitability to be members of the judiciary”

Justice Committee heard evidence from Moi Ali. CLAIMS by Scotland’s top judge that introducing a register of judges’ interests may impact on judicial recruitment were brushed aside at Holyrood’s Justice Committee earlier this week – during an evidence session with former Judicial Complaints Reviewer Moi Ali.

Answering a question from MSP Shona Robinson on concerns raised by Lord Carloway of difficulties in hiring judges – Moi Ali said: “If a lawyer were put off by having to be open and transparent, that would raise questions about their suitability to be a member of the judiciary.”

The response from Moi Ali, who served as Scotland’s first Judicial Complaints Reviewer (JCR) – was a key moment during Tuesday’s hearing where the Scottish Parliament’s Justice Committee took further evidence on a petition calling for the creation of a register of interests for judges: Petition PE1458: Register of Interests for members of Scotland’s judiciary – originally filed at Holyrood’s Public Petitions Committee in October 2012.

The petition calls for the creation of a publicly available register of judicial interests – containing information on judges’ backgrounds, figures relating to personal wealth, undeclared earnings, business & family connections inside & outside of the legal profession, membership of organisations, property and land, offshore investments, hospitality, details on recusals and other information routinely lodged in registers of interest across all walks of public life in the UK and around the world.

Video footage of Moi Ali’s respnse to MSP Shona Robison can be viewed here:

Moi Ali – Judicial interests register will not deter judicial candidates – Justice Committee 19 November 2019

Shona Robison (Dundee City East) (SNP): Good morning. Lord Carloway said in his written evidence that a register of financial interests could “have a damaging effect on judicial recruitment.”

It is not necessarily the case that anyone would have anything to hide, but there may be such a perception as a result of the extended scrutiny. Would a register of interests have a negative effect on judicial recruitment in any way?

Moi Ali: I honestly do not think that it would. If a lawyer were put off by having to be open and transparent, that would raise questions about their suitability to be a member of the judiciary. If the need for transparency put people off, that might not be a bad thing because they might not be the sort of people whom we want to be sitting in judgment.

By and large, a requirement to register interests does not put large numbers of people off wanting to sit on public boards or build a career in politics. It has not deterred me or any of you—we are all here today, and we all publish declarations in a register of interests.

I do not agree, therefore, that it necessarily follows that people would be put off becoming judges. People do that job because it is a public service and a very worthwhile thing to do. I would hope that the sort of people who want to do that job would want to do it in an open and transparent way.

Earlier in August 2019, Scotland’s top judge Lord Carloway (real name Colin John Maclean Sutherland) – wrote a letter to the Justice Committee claiming that raising the issue of judges declaring their interests may impact on his recruitment of judges for the Court of Session and High Court of Justiciary.

Carloway, who earns £234K a year – also refused to give evidence at the Justice Committe, and demanded to know of questions in advance should he have to address further queries from MSPs who have been considering the cross party backed petition calling for a register of judicial interests since it was passed to them by the Public Petitions Committee in May 2018, reported in further detail here: JUDICIAL REGISTER: Holyrood Petitions Committee calls for legislation to require Scotland’s judges to declare their interests in a register of judicial Interests

Lord Carloway’s letter to Margaret Mitchell MSP stated “I appreciate that your Committee is constituted differently from the Petitions Committee, and that the topic may therefore be comparatively new to its members. There would, however, appear to be little that could be said in any further session that does not simply go over ground that has already been covered extensively. It would not, I suggest, be the most fruitful use of the Committee’s valuable time.”

Carloway ended his letter by stating “I would be grateful if you could write to me setting out any new issues that have been identified. We will then be well placed to determine how best to progress this matter which, unfortunately, has been aired at a time when I am attempting to encourage our most senior lawyers to apply for office of judge of the Court of Session and High Court.”

The evidence hearing before the Justice Committee lasted some fifty minutes, covering a host of issues ranging from how a register of judges’ interests would benefit the judiciary and enhance public confidence in the courts system, to answering the concerns of judges who feel their privacy should be protected more so than any other organisation or branch of the executive.

This is the second time Moi Ali  – who is now the Independent Assessor of Complaints for the Crown Prosecution Service in England – has given evidence to MSPs on the long running Holyrood probe of judicial transparency and declarations of judges’ interests.

Earlier, in September 2013, Moi Ali gave evidence to the Scottish Parliament’s Public Petitions Committee, and gave her backing to calls for the creation of a register of judicial interests.– reported in more detail along with video footage of the 2013 evidence hearing, here: Judicial Complaints Reviewer tells MSPs judges should register their interests like others in public life.

Video footage of the Justice Committee’s 19 November 2019 hearing where Moi Ali gave evidence on Petition PE1458 can be viewed here:

Moi Ali – Register of Judges Interests evidence hearing Scottish Parliament 19 November 2019

The full transcript of the hearing is reprinted below:

Judiciary (Register of Interests) (PE1458) Justice Committee 19 November 2019

The Convener (Margaret Mitchell (Central Scotland) (Con): Agenda item 2 is an evidence session on petition PE1458, in the name of Peter Cherbi, calling on the Parliament to establish a register of judicial interests. I refer members to paper 1, which is a note by the clerk, and paper 2, which is a private paper.

I welcome our witness, Moi Ali, who is a former Judicial Complaints Reviewer. Regrettably, Peter Cherbi is unable to be here this morning. I wish him a speedy recovery.

I refer members to the recent letter on the petition that the committee received from the Lord President.

We move to questions from members.

John Finnie (Highlands and Islands) (Green): Good morning, Ms Ali. Thank you for your written submission.

Will you outline the nature of the problem? Is the problem actual or does it involve perceived bias?

Moi Ali: The short answer is that it is a mix of both. Without a register of interests, it is extremely difficult for people to work out whether there is an issue.

I acknowledge that there are perceived concerns, but that is an issue in itself. For example, there are no real issues about public board members getting involved in deals that they should not get involved in—I believe that there is no evidence of that happening—but we are still required to complete our entries in a register of interests, as are MSPs.

In a way, the issue is not whether there is any real bias, although I have been sent evidence that there is. For me, the issue is one of perception, and having confidence in the judicial system is important. We want justice delivered, but we also want justice to be seen to be delivered, which is very much about openness and transparency.

John Finnie: You are a former Judicial Complaints Reviewer. Can you give us an outline of the sort of complaints that you dealt with, and tell us whether they would inform this debate?

Moi Ali: Yes, I can. The difficulty that I had as the JCR was that people tended not to escalate complaints to me, because it was known that I had no powers and that there was nothing that I could do.

The complaints system is such that judges investigate complaints about judges and, at the end of that process, there is what can only be described as a little bit of window dressing. The final stage is with somebody called a JCR, which is set out in statute. That individual has no powers, so they cannot change or overturn a decision and cannot do anything about it at all. Their only power is to look at whether the complaints process was followed. The complaints process is simply about matters such as whether the person who was complained about wrote to the complainant within the five-day timescale or whether they sent a response within 10 days. The JCR does not look in detail at the complaint; rather, they simply look at whether the process was followed. That is very different from the system in England and Wales.

John Finnie: What sort of complaints did you deal with in that way?

Moi Ali: The complaints were about a wide range of issues from judicial conduct in the private world—the way in which judicial office-holders conducted themselves when not acting as, for example, judges—to things that happened in the courtroom, such as issues with their behaviour, rudeness, unsympathetic approaches or, sometimes, conflicts of interest.

John Finnie: Is there anything that we can learn from elsewhere? The petitioner has indicated that judicial registers operate successfully elsewhere and gives the example of Norway, which is often used as a comparator for Scotland. Are you aware of that system?

Moi Ali: I am not. I have to say that I am not an expert in registers of interest for the judiciary but I am passionate about openness and transparency in public life. For me, that is the fundamental issue. In many ways, this is not about a register of interests but about public office-holders in various guises, whether it is people like you in politics, people like me on boards and in public life or judges taking decisions about people’s lives. Is there a requirement on people who represent wider society to be open and transparent in our dealings? For me, there is a very clear answer: yes, we have to be open and transparent.

John Finnie: Okay, thank you.

The Convener: I would like to follow up on the point about having no powers other than to look at the process and see that it is being followed. What powers do you suggest that the JCR should have?

Moi Ali: A good example is the role that I have at the moment. I am the independent assessor of complaints for the Crown Prosecution Service in England and Wales. In a way, it is a similar job, in that I independently review complaints. The difference is that, when I was the JCR, I simply considered the process, whereas now I can overturn a decision and reach a different decision about the outcome of a complaint. I believe strongly that the JCR ought to be able to do that.

What I found frustrating as the JCR was that if, based on the evidence, I could not understand how a particular decision had been reached, I had no power to say, “That is nonsensical; it needs to be looked at again”. I could say only, “Well, you followed the rules, therefore I do not uphold the complaint”.

I think that the JCR ought to have the power to consider the complaint, reach a different outcome and have a conversation with the Lord President about what can be done to remedy that complaint, instead of simply ruling on whether the process was followed or not.

The Convener: When you say, “overturn a decision”, do you mean the decision of a case where there might be an appeal pending?

Moi Ali: No. It is important that there is a distinction between legal decisions that judges make—clearly, we have to have an independent judiciary, and nobody should get involved in overturning legal decisions—and service elements. So, for example, if a judge is rude to somebody in court, that is not a legal decision, that is a service decision. I do not believe that any non-judicial office-holder ought to overturn legal decisions. However, if, after considering the evidence in a case, the JCR cannot understand why judges have not upheld a service complaint, he or she ought to have the power to ask the Lord President to consider that complaint again. Of course, though, they should certainly not look at legal decision making in that way.

The Convener: So, you are saying that, if the JCR is considering a complaint—one that might involve something about rudeness, or something that happened in the court that was not quite right—and the judiciary has, in effect, said, “We are not going to do anything about it”, you feel that the JCR should have the power to say, “No, I think this is a legitimate claim” and ask for it to be looked at again?

Moi Ali: Yes, otherwise what is the point of having a JCR? What is the point of having a third tier when the third tier cannot actually do anything? That is why I describe it as window dressing: if you can look at a complaint but you cannot do anything about it, why look at it?

The Convener: That is a helpful clarification.

James Kelly (Glasgow) (Lab): I draw the committee’s attention to my previously declared interest, which is that my brother, Tony Kelly, is a sheriff within the sheriffdom of Glasgow and Strathkelvin.

I would like to follow on from what has just been discussed and give a bit more context to the issue of service complaints. You gave the example of a judge being rude. Can you give any other examples of what would merit a service complaint?

Moi Ali: Let me think. It could be behaviour outside the courtroom. I vaguely remember a complaint where somebody was shouted at by a judge while she was out walking her dog—she was in an isolated place and she felt afraid. I also vaguely remember—you will have to forgive me; it was several years ago that I was the JCR—a complaint where somebody felt that they had been a victim of disability discrimination as their requirements had not been taken on board when they gave evidence in court.

Those are some examples, but it covers a wide range of things. Really, any concern that somebody has that is not a legal concern about their case is a service complaint. It could be to do with the conduct of a judge. If somebody feels that a judge gave one witness more airtime than another, that would be a legal complaint, because it is up to judges to decide how to handle evidence in court. However, if somebody feels that a judge was rude to them but perfectly polite to somebody else, that would be a service complaint.

It is quite difficult to give examples because cases are so varied.

James Kelly: Does a service complaint pertain to a specific legal case or can it relate to a judge’s general conduct? You gave the example of something that happens outside the courtroom.

Moi Ali: It can relate to general conduct inside or outside the courtroom. It can be about a specific instance or it can be more general. For example, there could be a concern about bias because a judge is a member of a particular society. It covers a wide range of things.

James Kelly: Okay. I suppose the key questions that the petition raises are whether there is a risk of bias in the judicial system and whether the safeguards in the system are adequate. Those safeguards are: the judicial oath; the “Statement of Principles of Judicial Ethics for the Scottish Judiciary”; and the powers to investigate judges. How effective are they in ensuring that there is no bias in the system and that no conflict of interest arises?

Moi Ali: I will pick up on the third of those things, because my field of expertise is the complaints process, and that is where my concerns lie. We have a system in which, if there is a complaint about a judge, it is investigated by another judge. We live in a small country and we have a small group of judges who are all known to one other. It is quite a difficult scenario when people have to investigate people that they know. Given that the oversight role of the JCR is a powerless one, I do not think that we have a robust complaints system, and therein lies the problem.

Over and above all of that, however, even if we had a really good, robust system for investigating complaints that had genuine independent oversight, there would still be a requirement for a register of interests. This is the 21st century. Since the 20th century, public board members and politicians have had to register interests, and it is normal, commonplace practice. I cannot understand why we do not require one certain group of people who take very important decisions to do that.

James Kelly: You believe that, because judges are allowed to investigate within their own pool, the process is weak and is not fair or transparent. Do you have any evidence or examples to back that up?

Moi Ali: Their findings are not seen outwith their small circle. While I was the JCR, I was also involved in the system in England and Wales. As the JCR, I did not see the outcome of complaints unless they came to me, whereas I found that, when people challenged decisions in England and Wales, there was genuine independent oversight. There, a panel of people consider the complaint and can overturn the finding or impose a more serious sanction, which has to be accepted by the judiciary. In addition, the findings of investigations are published on a website. It is a bit like the situation with complaints about other professional groups such as doctors, nurses, surveyors and solicitors—in those cases, findings are publicly available and people can see the outcomes. In Scotland, that does not happen with complaints about the judiciary. You cannot look at how many complaints there have been and what the outcome was for particular judicial office-holders. That simply does not happen here, but it happens elsewhere.

Liam McArthur (Orkney Islands) (LD): Ms Ali, you have set out the case for a register of interests. Of course, the petition has already secured the achievement of a register of recusals. What transparency benefits has that register brought to the system, and what is the rationale for going beyond that and having a register of interests? What would a register of interests give you that the register of recusals will never be able to give you, however well it operates?

Moi Ali: The register of recusals is welcome because it is a step forward and probably would not have happened if it had not been for the petition. There are concerns about it, though. For example, as I understand it, there are no justices of the peace on the list. I found that surprising, given that JPs have another life and lots of contacts in their other life, and in their day job and so on. It is surprising that there have been no recusals there.

For me, the more fundamental issue is that it is up to the judicial office-holder to take the decision. They know what their own interests are, and nobody else has that knowledge. They decide on a case-by-case basis, and if they do not recuse themselves, the people before them do not have the information to challenge them, whereas, if there was a register of interests, the process could be more proactive. People could look at the register, then go to court and say, “Sorry, but I think there’s a conflict of interest here. I’ve consulted the register of interests and you have a connection with this or that, and that concerns me.” With the register of recusals, it is up to the judicial office-holder to decide whether there is a conflict of interest, which takes the power out of the hands of the people who appear before the judiciary. I suppose that that is my concern.

I sound a bit like a stuck record, but there is a fundamental principle about openness and transparency that I feel should extend throughout society and public life. Even if the register of recusals worked—I am not convinced that it does—there is still a need for a register of interests.

Liam McArthur: With both the register of interests and the register of recusals, would there not be the same issue of reliance on the individual either to recuse themselves or register their interests? With a register of interests, we would therefore not necessarily find ourselves much further forward.

Moi Ali: I think that we would, because, if clear criteria were set out, and there were clear requirements for what needed to be registered and what did not, judicial office-holders could meet those requirements and register their interests, and that information would then be in the hands of everyone. Anyone could use that information to challenge whether there was an interest in a case. Without a register of interests, we are relying solely on the judicial office-holder to take that decision, and the people appearing before that person do not have that knowledge to make that challenge.

A register of interests would be a step forward because it would be about sharing information that, at the moment, only the judicial office-holder knows. It might be that they feel that they do not have an interest, but somebody else, if they had that information, might feel that they did. At least we could have an open and transparent discussion about it and resolve it before the case. What we do not want is for people to turn up on the day and find that the judicial office-holder, having looked at the papers for that day, has concerns that they might have an interest. By having those interests publicly declared and available in advance, a lot of that work can be done in advance. I cannot see any disadvantage to such a register; I can see only advantage.

Liam McArthur: There would still be an issue around whether a recusal is appropriate, and one can certainly envisage circumstances in which there could be a difference of opinion about whether an interest merited recusal in a particular case. Ultimately, the decision will have to be taken by somebody, but should it be taken by judges, by individual sheriffs or by the Lord President? Is there a mechanism for arbitrating the matter, or will the decision still rest, as it does at the moment, with individual judges and sheriffs?

Moi Ali: Goodness—you are asking me very detailed questions on issues that I think need to be looked at down the line. The first issue is whether the principle is that people ought to register their interests. If so, let us then look at the detail of how that might work. Of course, there will be scenarios in which one party feels that there is an interest and the judicial office-holder feels that there is not but, if there is a register, there can at least be a discussion. At the moment, that discussion is not even happening, because it is purely for the judicial office-holder to decide and to recuse, without there being an opportunity to discuss or challenge that decision.

Personally, I do not have an issue with the judicial office-holder taking the decision, but it must be taken openly and transparently, and there must be an opportunity for challenge before a case goes ahead.

Liam McArthur: There could be a concern that individuals might see an opportunity to challenge the validity of a judge or sheriff presiding over a case, irrespective of the circumstances of their case, because there would be two separate processes running in parallel. I am sure that there are wider arguments, but there might be a concern that we would have a register that opens up a line of attack on members of the judiciary, which could distract from the facts and circumstances of individual cases.

Moi Ali: I will give you an example of a similar situation. For many years, I sat as the chair of disciplinary panels for nurses and midwives, and similar issues came up then. Some of the panel members would know people from a particular health board or health trust, and they would have to declare that openly in a hearing and set out what they believed that their interest was. The declaration could be challenged and, ultimately, the panel that was sitting on the case would decide whether there was an interest. If the “defendant”—in inverted commas—felt that there was an interest, they could have the decision judicially reviewed. In practice, the process was straightforward: somebody would declare an interest and there would be a discussion about whether it was a material interest. In probably all cases, a view was reached about whether there was a material interest, and the case would either go ahead or be assigned to a different panel on another day. However, the process did not seem to pose a particular problem, so I cannot see that it would not work in practice. There might be challenges but, if we had rules that set out what would happen if there was a challenge, there is no reason why there should be any particular difficulties.

Rona Mackay (Strathkelvin and Bearsden) (SNP): I will you ask a bit more about judicial independence. The Lord President and the Scottish Government argue that judges should not be treated in the same way as other branches of Government, because they have an independent role that is protected in statute. You have said that you believe in judicial independence, so do you think that a register could compromise that?

Moi Ali: No, I do not. Judicial independence and judicial accountability are both absolutely essential to a democratic society, but there is a clear distinction between the two and they are very different. I would not want to live in a society in which politicians, for example, interfere in judicial decisions. That is why we have an independent judiciary and we should all make sure that that independence is maintained.

Accountability is a different matter altogether. Being accountable for fair decisions is important and demonstrating that you are impartial is an important part of accountability. We want impartial judges, but we also want judges who can demonstrate that they are impartial. To me, a register of interests is an opportunity for judges to do that.

I think that it actually enhances the judicial oath. It says, “Not only do we have integrity, not only are we independent, not only are we impartial, but we are demonstrating that. We have nothing to hide. Here are our interests, laid out.” There is no conflict at all between independence and accountability.

Rona Mackay: Do you have an opinion on why judges are reluctant to have such a register? Do you think that they think that they would be compromised, or is it that they just do not want to be accountable? Do you know why they are resistant to the proposal?

Moi Ali: I do not understand it. Traditionally, the judiciary in Scotland is quite conservative and is steeped in tradition. Those are not, in themselves, bad things, but society has moved on, and I think that the judiciary has failed to keep in step with that. The benefit of the proposal is that it provides members of the judiciary with an opportunity to accept that they are in the 21st century and that they should start to do some of the things that other people in public life have done for quite a few decades, which is to be more open about their interests.

I do not know the what the reluctance is. I am not saying that judges have anything to hide; I am simply saying that they should be more positive about the proposal and show that they do not have anything to hide.

Rona Mackay: Do you think that it comes down to a resistance to change and a wish to stick to the traditional way of doing things?

Moi Ali: I suspect that that is the reason. I think that we can all be a little bit resistant to change and sometimes need a little bit of encouragement in that regard.

The Convener: I have been looking into the risk of abuse. On the surface, a lot of what is being proposed sounds sensible, but, when you get into the detail of it, it perhaps does not seem so sensible. The issue of JPs not being on the list seems strange, given that they are dealing with a local community and they could well have relevant connections there. That certainly seems like something that should be looked at further.

I want to go into the detail around the issue of looking at a judge’s private life. For example, if someone who has nothing to do with a case and to whom the judge has no connection has blocked a judge’s car and he cannot get out and is being rude to the person, would that be a complaint that would be upheld, perhaps on the ground that a judge should not be rude to anyone?

Moi Ali: In all sorts of roles, it is common for one’s conduct in one’s private life to be subject to complaints. I am sure that, as an MSP, you are familiar with that. The behaviour of an MSP or a board member in their normal life outwith their day job can be subject to complaints, just as the behaviour of doctors, nurses, dentists and people in a range of other professions can be. That is normal. However, I do not see the connection between that and the register of interests. What you are talking about is part of the complaints process. It is the sort of complaint that, I suspect, would not be looked into. I have seen similar complaints that have not been looked into by the judicial office.

The Convener: I suppose that I was going back to the JCR’s powers. You said that should extend to looking at a judge’s conduct in their private life.

Moi Ali: The rules that govern complaints against the judiciary in Scotland cover that. People can make complaints about judges’ conduct in their private lives as well as their conduct in the courtroom. However, from my former experience as the JCR, I can say that very few complaints about conduct outwith the courtroom are progressed.

The Convener: With regard to the suggestion that every complaint should be published, whether it is upheld or not, would that be open to abuse, given that people can make vexatious complaints about someone who is in a position of power, as judges are in relation to their ability to determine issues around people’s liberty? Should every complaint be published, or should only those that are upheld be published?

Moi Ali: I have no issue with only upheld complaints being published. At the moment, they are not. I do not think for one minute that every complaint should be published. However, if something has gone through the whole process and, at the end of that, it has been upheld, I do not quite understand why that complaint is not published in the way that it is in England and Wales or the way that it is in Scotland in relation to other professional groups.

The Convener: What kind of things do you think should be included in the register that are not included in it just now? I think that I read in your submission—it might have been in an interview—that you thought that relatives should be included.

Moi Ali: That is right. If people have family connections in the legal world, that ought to be declared. You do not want a scenario in which a judge has a daughter who is a lawyer and they are in the same courtroom together, because that could lead to a perception of bias one way or the other. I think that relevant family connections should be declared. I am not talking about people having to spell out who all of their family members are and what they do. However, if there is close family connection in the legal field, that ought to be declared, because that is relevant to whether people’s perception of fairness.

The Convener: Would that not happen just now? At the moment, a judge might say that his wife’s job is not a relevant interest because, for example, she works for the national health service, but, if a case comes up that involves the NHS, the judge would say, “Sorry, there is a conflict of interests here.” Is it not the case that what you are suggesting involves almost second-guessing what might be a registrable interest?

Moi Ali: No, because I do not think that the fact that a family member works in the NHS would be a registrable interest. That would be dealt with by a recusal at the time. There is a need for both things to be possible. A relevant interest that would be registered in advance would be a legal link—somebody working in a different part of the legal system or the wider criminal justice system, for example. However, the situation that you are describing—in which a judge who has a family member who works in the NHS is presiding over a case that involves the NHS—would be dealt with by way of recusal.

The Convener: I would like to address the issue in a wider sense. Our judges are the ultimate upholders of the law. They can give life sentences and they are involved on a daily basis with people whom you and I would not like to meet. We already know that our prisons are battling with serious organised crime. Do you have any concerns about the possibility that the level of detail that you are asking to be submitted to the register of interests could put our judges in a position in which they felt threatened or, indeed, in which they were threatened?

Moi Ali: I do not understand how that could happen. For example, in my job with the Crown Prosecution Service, I deal with complaints from defendants, people who are imprisoned and people who have committed serious crimes. I have entries in publicly available registers of interests on a number of different websites. All that information is available for anyone to look up. I do not understand how that would lead to threats being made. That certainly has not happened to me. I do not follow that argument.

The Convener: I was suggesting that members of the judiciary are in a different position from employees of the Crown Office and Procurator Fiscal Service, as they should be. A judge is the ultimate determiner of a sentence. He or she will decide if your liberty is going to be taken away from you and you are going to be sent to prison. That is serious. Do you have any concerns the register of interests, in the form that you are suggesting that it should be implemented, would compromise their safety?

Moi Ali: No, I genuinely do not. I certainly would not be pushing for anything that I felt would put people in danger. I cannot conceive of any situation in which a register of interests could be used in any way that would place somebody in danger. It is simply a list of interests—it might state, for example, that somebody owns a significant number of shares in a company, is a member of a particular group or society in a capacity that might impact on their judicial role, or has family connections in the criminal justice system.

A lot of judges publish such information already in relation to the various roles that they undertake, and that has not—to my knowledge—placed anybody in danger. I am afraid that that concern is a complete red herring. I genuinely cannot see how a register of interests could be misused to put somebody in danger. I just cannot see what information it might contain therein that would create such a risk.

The Convener: You say that judges already give that detail, which raises another question. Peter Cherbi helpfully provided information on that, and I was struck by the level of detail that is already disclosed—which, as you mentioned, includes information on shares.

Such information is covered just now. However, we know from our work on this committee and on the Justice Sub-Committee on Policing that serious organised crime is always a step ahead. We always need to catch up with the latest way to put pressure on criminals, and to look at where criminal activities can flourish and how they can be halted. That is the difference between the judiciary and COPFS. Do you accept that there is a difference?

Moi Ali: Yes, of course. My response to your question is that, if someone involved in serious crime decided that they wanted to have a go at a judge who had locked them up, they would not be deterred by the fact that there was not a register of interests. They would not think, “Oh well, I won’t bother then.” If somebody has set their heart on doing someone harm, that is—regrettably—going to happen. It will not be prevented by there not being a register of interests that shows that judges are open and accountable. In fact, it is probably quite the reverse: if judges’ esteem is enhanced by the fact that they are operating more openly and transparently, that will raise the standard of judicial office-holders and enhance public trust and confidence in their role.

I am afraid that, if people are hell-bent on doing bad things, they are going to do those things, whether or not a register of interests exists. I do not, therefore, quite follow the argument that is being made.

The Convener: I suppose that it is a question of balance. How far can we move towards ensuring that there is maximum transparency? We must take into account that, if we go over the line and judges are required potentially to disclose so much about their private life, that might put not necessarily them but their friends and relatives in danger, as they might be open to being blackmailed or whatever. All those things are possible. Have you thought about that at all?

Moi Ali: Yes, I have thought about that, and my answer is the same. We are not asking judges to publish information on where they live or detail that would place them in any danger. We are simply saying that, if they have business dealings that might be relevant to their role or family connections who are part of the criminal justice system, which might cast doubt on their decision making, such information ought to be declared in a register of interests. In the same way, you and I have to publish similar details of interests that might impact on our roles and on perceptions about our impartiality.

I do not believe that the proposed register would create any danger or difficulty. If I genuinely believed that that was the case, I would not support it; I would not wish to put anybody in danger. I genuinely do not think that there would be any danger at all in having a register—in fact, it is quite the reverse. If trust is enhanced, that surely has to be a good thing.

The Convener: If there was a failure to disclose, what would the sanction be?

Moi Ali: It would be the same as what happens now: the complaints system would be used. A complaint would be lodged, and it would be investigated. I would like to see the complaints system changed, but perhaps that is for another day. There is a complaints system and a clear set of rules, and that system would be used to investigate any complaint about a failure to declare an interest.

The Convener: Would failure to disclose be a criminal offence?

Moi Ali: It is not a criminal offence at present. The complaints procedure is not currently a criminal process, and I am suggesting that that procedure could be used to investigate such a complaint. It would be an internal disciplinary matter for the judiciary.

My reluctance to be pinned down on the detail is due to the fact that this is not my petition. I am here because I support, in principle, the notion of greater openness and transparency. A lot of these questions concern detailed issues that would need to be teased out if the committee decides to take the proposal forward. In my view, it is workable, given that it works in other areas of public life. However, the workings and detail of the proposal would need to be determined, and those questions are not for me to answer; the judiciary would need to look at those issues and consult widely on them.

I see no reason why the proposal could not work. It would not have to involve an extra layer of criminal process; the internal system could be used.

The Convener: For the avoidance of doubt, your evidence today has been very helpful. I appreciate that you support the principle of the proposal but, for the committee, the devil is in the detail, and we have to look at that. Thank you very much.

Liam Kerr (North East Scotland) (Con): I have a brief supplementary. For complete transparency, I declare that I am a practising solicitor who is registered with the Law Society of Scotland and the Law Society of England and Wales.

The convener suggested that a register might increase transparency and thus public confidence in decisions. However, one can formulate a scenario in which a decision is handed down that might seem—let us say—to be unduly lenient, and the information in the register might show that a judge has another role that could arguably be said to have influenced the decision—at least, the optics might suggest that that is the case. In such a scenario, could transparency undermine confidence in a decision in a way that would not currently happen?

Moi Ali: There may well be cases in which that happens, but people ought to be open to challenge and scrutiny. I genuinely think that, by and large, by laying things bare and being open, credibility is enhanced.

You are right to suggest that, on occasion, people might say that a decision is concerning because of a certain link. Nonetheless, do we not want a society in which people challenge things if they do not look right? It does not mean that they are not right but, in all areas of life, we need to challenge things that may not appear, on the face of it, to be right.

John Finnie: I have a supplementary. It is three weeks short of seven years since the petition was first introduced to Parliament. We are taking evidence today, and we have received written evidence on the matter. The original petition related to pecuniary interests. A lot has been said about bad guys and all sorts of threats, but such issues are perhaps more likely to surface in civil cases than in criminal cases in which judges deliberate.

Given your experience in various other bodies, do you think that there has been any reputational damage to our judiciary as a result of their apparent resistance to move on something—namely, openness and transparency—that is seen as a matter of fact in many jurisdictions?

Moi Ali: Yes, I think that there has been damage; one has only to look at the headlines in the newspapers to see that. Without a shadow of doubt, it has created the perception that there is something to hide. That is unfortunate, because I suspect that, in the majority of cases, there is nothing to hide. That is why I do not understand the resistance to this change. I think that there is simply a concern about things changing, and a lack of acceptance of such change.

Damage has been caused, and there is nothing to lose by publishing judges’ interests—it would definitely enhance the standing of the judiciary and build public trust and confidence. At present, the nature of the headlines concerns the question of what there is to hide, and people then dig around to try to find out. If all the information were published, it would put a stop to that practice.

Shona Robison (Dundee City East) (SNP): Good morning. Lord Carloway said in his written evidence that a register of financial interests could “have a damaging effect on judicial recruitment.”

It is not necessarily the case that anyone would have anything to hide, but there may be such a perception as a result of the extended scrutiny. Would a register of interests have a negative effect on judicial recruitment in any way?

Moi Ali: I honestly do not think that it would. If a lawyer were put off by having to be open and transparent, that would raise questions about their suitability to be a member of the judiciary. If the need for transparency put people off, that might not be a bad thing because they might not be the sort of people whom we want to be sitting in judgment.

By and large, a requirement to register interests does not put large numbers of people off wanting to sit on public boards or build a career in politics. It has not deterred me or any of you—we are all here today, and we all publish declarations in a register of interests.

I do not agree, therefore, that it necessarily follows that people would be put off becoming judges. People do that job because it is a public service and a very worthwhile thing to do. I would hope that the sort of people who want to do that job would want to do it in an open and transparent way.

Liam Kerr: On that point, I want to raise a theoretical possibility. Let us say that Scotland has a register but England—as is currently the case, although a register has been proposed—does not. Is it theoretically possible that England would become a more attractive jurisdiction in which to become a judge if one did not share the belief that such a degree of transparency would be ideal?

Moi Ali: That argument could be applied in reverse. At present, members of the judiciary in England and Wales have a very robust complaints system, and findings against them are published on a website. That has not caused hordes of members of the judiciary to move north of the border to avoid the system. My answer is no, it would not.

Fulton MacGregor (Coatbridge and Chryston) (SNP): I have a supplementary on an earlier point relating to transparency. I am interested in how the register might impact on the communities that we represent. We often hear that certain communities have less faith in the criminal justice system as a whole, perhaps because of religion, ethnicity, age or social demographics. How might the introduction of such a register, and the transparency that you describe, impact on certain groups?

Moi Ali: I think that it would impact very positively. You are quite right—a number of groups in society are suspicious of the judiciary and feel that it is a closed world that is all very incestuous. It is a world with which they are not familiar, and there is a lot of concern about judicial decisions. The introduction of greater transparency could only have a positive impact in that regard.

If a group of people say, “We’re not going to be open about that. You are open about that, but we’re not going to be,” that creates a suspicion that there is something to hide. If we say that there is nothing to hide and we are quite happy to publish that information, it can do nothing but enhance the standing of judges across society.

Fulton MacGregor: In your role, have you come across any examples of where a situation might have played out differently had there been a register of interests in place?

Moi Ali: It is difficult to think of specific examples. In general, when people get to the stage of escalating their complaint through to the very top of a complaints system—whether it concerns the police, prosecutors or judges—they have lost faith in the process. Anything that can restore faith is a good thing.

Although I cannot think of specific examples in which a register of interests would have helped, it would help in general because it is all about building the standing of judges. A register of interests would clearly do that, and would therefore lead to less of a perception that there is something to hide, whatever that may be.

The Convener: That concludes our questioning. I thank you for a very worthwhile session and for appearing on your own without the petitioner.

That concludes the public part of today’s meeting. Our next meeting will be on Tuesday 26 November, when we will begin our consideration of the Children (Scotland) Bill.

10:50 Meeting continued in private until 11:26

Previous articles on the lack of transparency within Scotland’s judiciary, investigations by Diary of Injustice including reports from the media, and video footage of debates at the Scottish Parliament’s Public Petitions Committee can be found here : A Register of Interests for Scotland’s Judiciary.

 

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COURT OF SENATORS: Top judge hires FIVE new judges – after claiming register of judges interests creates difficulty in recruitment – papers reveal new judge gave legal advice to Scottish Police Authority secrecy block against ex Board member’s files request for Holyrood Police oversight probe

Five new judges – after Lord Carloway claimed difficulty in recruitment. ONE DAY after Holyrood’s Justice Committee considered claims by Scotland’s top judge that judicial recruitment would be hampered by bringing in a register of judges’ interests – the Judiciary of Scotland have announced five new ‘senators’ for Scotland’s top court – the Court of Session.

The five new judges – Douglas Fairley QC, Anna Poole QC, Sean Smith QC, Robert Weir QC and Sheriff Peter Braid – can expect salaries of up to £215K a year, will gain the terms “Senators of the College of Justice” and will sit in the Court of Session & High Court of Justiciary.

The latest round of judicial appointments – announced one day after Holyrood MSPs discussed claims by Lord Carloway – that raising issues of judicial transaprency may cause him difficulty in recruting judges for the Court of Session and the High Court – come after a raft of judicial appointments in the past few months.

In September, the Judicial Office announced the appointment of seven Summary Sheriffs who can expect a salary of £110,335 per annum – Patricia Prycem Charles Lugton, Roderick Flinn, Sukhwinder Gill, Michael Higgins, Hugh McGinty and Colm Dempsey – to various courts around Scotland.

And in August – the Judicial Office announced the appointment of eight full time Sheriffs who can expect £140,289 a year – Paul Reid, Tony Kelly, Sara Matheson, Joseph Hughes, Fergus Thomson, Colin Dunipace, Mhari Mactaggart and Jillian Martin-Brown – on the recommendation of the First Minister.

Lord Carloway (real name Colin John Maclean Sutherland) – who earns £234K a year – also refused to give evidence at the Justice Committe, and demanded to know of questions in advance should he have to address further queries from MSPs who have been investigating a cross party backed petition calling for a register of judicial interests – Petition PE1458: Register of Interests for members of Scotland’s judiciary – originally filed at Holyrood’s Public Petitions Committee in October 2012.

Lord Carloway’s letter to Margaret Mitchell MSP states “I would be grateful if you could write to me setting out any new issues that have been identified. We will then be well placed to determine how best to progress this matter which, unfortunately, has been aired at a time when I am attempting to encourage our most senior lawyers to apply for office of judge of the Court of Session and High Court.”

Among the new appointments to the Court of Session after a closed shop Judicial Appointments Process – is Anna Poole QC – who sat part time as a UK First-tier Tribunal judge (Social Entitlement Chamber) from 2014 and recently took up a judicial position as a salaried judge of the Upper Tribunal of the Administrative Appeals Chamber on 30 April, 2018.

However, a biography published by the Judicial Office for Anna QC  as part of the judiciary’s announcement of the new judicial appointments – omits key details of Ms Poole’s representation of the Scottish Government, Crown Office & Procurator Fiscal Service (COPFS), the Scottish Police Authority (SPA) and others, in cases and issues which have been of significant public interest and concerns – and would be expected to be entered in a register of judges’ interests – if one existed.

Details of Ms Poole’s previous legal representation of one controversial public authority were revealed in papers obtained from the Scottish Police Authority (SPA) via Freedom of Information reques.

The information disclosed by the Scottish Police Authority reveals the same Anna Poole QC was engaged by the SPA to provide ‘supplementary legal advice’ for the controversial Police Regulator’s successful attempt to block a request from former board member Moi Ali for access to information.

The Scottish Police Authority initially did not disclose the identity of the QC in response to the FOI request – and only did so after a review was requested of their decision to keep Ms Poole’s identity a secret.

The Scottish Police Authority eventually revealed it had also shared parts of the legal advice with the Scottish Government – who were also criticised by MSPs for their role in poor management at the Scottish Police Authority.

Information released under Freedom of Information by the SPA’s Information Management team disclosed: The SPA can confirm that legal advice was sought from DLA Piper, Solicitors, in relation to the SPA holding Committee meetings in private. The cost of this legal advice came to a total of £1,408.68 (inc VAT).

The SPA can also confirm that legal advice was sought from DLA Piper, Solicitors, in relation to a request for information from Ms Ali.

The cost of this legal advice came to a total of £5,875.08 (inc VAT). Parts of this legal advice procured by the SPA was shared with the Scottish Government.

In addition, the SPA obtained supplementary legal advice in relation to this issue. The cost of this supplementary legal advice came to a total of £4,800.00 (inc VAT).

The information contained in the legal advice procured by the SPA as aforesaid is information in respect of which a claim to confidentiality of communications could be maintained in legal proceedings and is, therefore, exempt from disclosure in terms of Section 36(1) of the Freedom of Information (Scotland) Act 2002.

Sections 36(1) of the Freedom of Information (Scotland) Act 2002 is not absolute exemption and as such, the public interest in disclosing the information must be weighed up against the public interest in maintaining the exemption.

Section 36(1) Public interest considerations favouring disclosure:

Disclosure would provide an understanding around the decision making in relation to the above matters.

Section 36(1) Public interest considerations favouring non-disclosure:

Disclosure of the information requested could prejudice the effective operations of SPA. SPA staff have to be able to discuss certain matters behind closed doors, with an expectation of privacy in those discussions. If that expectation were to be eroded it may affect the free and frank exchange of views and as such inhibit decision making.

In response to the request for review of the decision to keep the QC’s identity a secret, the Scottish Police Authority disclsoed the identity of Anna Poole QC as a provider of ‘further legal advice’.

The SPA’s Information Management Team stated: Having carried out a review of the initial response I am satisfied that the information contained in the legal advice procured by the SPA is information in respect of which a claim to confidentiality of communications could be maintained in legal proceedings and is, therefore, exempt from disclosure in terms of Section 36(1) of the Freedom of Information (Scotland) Act 2002, we therefore uphold this part of the response.

I can advise that Miss Anna Poole QC was instructed to provide further legal advice.

In response to a second FOI request, the Scottish Police Authority disclosed further information revealing they had shared the legal advice with the Scottish Government.

The Scottish Police Authority disclosed the following: The SPA can also confirm that legal advice was sought from DLA Piper, Solicitors, in relation to a request for information from Ms Ali.

Parts of this legal advice procured by the SPA was shared with the Scottish Government.

In addition, the SPA obtained supplementary legal advice in relation to this issue.

The information contained in the legal advice procured by the SPA as aforesaid is information in respect of which a claim to confidentiality of communications could be maintained in legal proceedings and is, therefore, exempt from disclosure in terms of Section 36(1) of the Freedom of Information (Scotland) Act 2002.

Sections 36(1) of the Freedom of Information (Scotland) Act 2002 is not absolute exemption and as such, the public interest in disclosing the information must be weighed up against the public interest in maintaining the exemption.

Section 36(1) Public interest considerations favouring disclosure:

Disclosure would provide an understanding around the decision making in relation to the above matters.

Section 36(1) Public interest considerations favouring non-disclosure:

Disclosure of the information requested could prejudice the effective operations of SPA. SPA staff have to be able to discuss certain matters behind closed doors, with an expectation of privacy in those discussions. If that expectation were to be eroded it may affect the free and frank exchange of views and as such inhibit decision making.

And your further response of 13th November:

I can advise that Miss Anna Poole QC was instructed to provide further legal advice.

The SPA are the owner of the legal advice shared with the Scottish Government, and therefore we are not required to seek permission should we wish to disclose to a third party.

The Scottish Government did not advise of any further disclosure.

The information access request by former SPA Board member Moi Ali – who resigned from the Scottish Police Authority after raising concerns regarding the SPA’s lack of transparency – came prior to hearings hearing of the Scottish Parliament’s Public Audit & Post Legislative Scrutiny Committee (PAPLS)

Video footage of Ms Ali raising concerns during an SPA Board meeting – concerns which ultimately led to the Scottish Parliament’s investigation of the Police Authority which provides oversight of Police Scotland, can be found here: Scottish Police Authority 15 December 2016 meeting Governance framework discussion

Issues raised by Moi Ali in relation to the Scottish Police Authority were taken on by the Scottish Parliament’s Public Audit and Post Legislative Scrutiny Committee, leading to hearings and ultimately, the resignation of the SPA’s Chairman Andrew Flannagan, and the exit of Chief Executive John Foley which is covered in more detail here: GONE EXEC’IN: Scottish Police Authority Chief Executive takes early retirement with pay-off, following resignation of ‘Kremlin’ Chair Andrew Flanagan – discredited board & Vice Chair who backed secretive top duo remain in posts.

A full report on the resignation of Andrew Flanagan, Chair of the Scottish Police Authority, can be found here: GONE KREMLIN: Chair of Scottish Police Authority resigns, lingers in office ‘until replacement found’ for discredited Police watchdog – focus now moves to ‘collective amnesia’ board who failed to support transparency crusading colleague

Video footage of a key hearing by the Public & Post Legislative Scrutiny Committee held on 20 April 2017 can be found here: Scottish Police Authority – Public Audit and Post-Legislative Scrutiny Committee – Scottish Parliament: 20th April 2017

A full report on the PAPLS meeting of 20 April 2017 can be found here: POLICING SECRETS: Former Scottish Police Authority board member Moi Ali invited to give evidence at Holyrood, after MSPs accuse SPA bosses of running Police watchdog like Kremlin ‘secret society’

A further appearance of current and former board members of the Scottish Police Authority before Holyrood’s PAPLS Committee on the 11th May2017  – established evidence in relation to a sequence of alarming events at the SPA – giving MSPs significant cause for concern of how the SPA Chair was in effect, personally running the Police watchdog as a “secret society”. Video footage of this hearing is available here: Public Audit and Post-Legislative Scrutiny Committee – Scottish Parliament: 11th May 2017

A full report on the PAPLS hearing of 11 May 2017 can be found here: UNFIT AUTHORITY: Chair of Scottish Police Authority “is not fit to continue on any public board” – says former SPA board member in evidence to Holyrood’s Public Audit Committee scrutiny of Police watchdog


Writing to the Convener of the Justice Committee – Scotland’s top judge Lord Carloway – claimed that raising the issue of a register of judges’ interests would create difficulties in recruiting judges, yet the day after Holyrood MSPs discussed Carloway’s letter, the Judicial Office announced five new judges for the Court of Session.

Lord Carloway’s  letter in full: Lord Carloway’s letter to Margaret Mitchell MSP

I refer to your invitation of 25 June to give evidence to the Committee in relation to the proposal for a judicial register of interests. This is a matter that has been the subject of parliamentary consideration for number of years, with the petition being lodged in 2012. Since then there have been a number of exchanges between the Petitions Committee and both my predecessor, Lord Gill, and myself. Both Lord Gill and I have given oral evidence to the Petitions Committee on this matter. For your convenience, I attach copies of the letters that Lord Gill and I have sent to the Petitions Committee, and also the transcripts of our oral evidence.

I appreciate that your Committee is constituted differently from the Petitions Committee, and that the topic may therefore be comparatively new to its members. There would, however, appear to be little that could be said in any further session that does not simply go over ground that has already been covered extensively. It would not, I suggest, be the most fruitful use of the Committee’s valuable time.

If, however, after consideration of everything that has gone before, it emerges that there are new substantive issues, I would be happy to address them. I would be grateful if you could write to me setting out any new issues that have been identified. We will then be well placed to determine how best to progress this matter which, unfortunately, has been aired at a time when I am attempting to encourage our most senior lawyers to apply for office of judge of the Court of Session and High Court.

FIVE NEW COURT OF SESSION & HIGH COURT OF JUSTICIARY SENATORS FOR LORD CARLOWAY:

New judges appointed

Five new Scottish judges have been appointed and will take up position next year.

Her Majesty the Queen, on the recommendation of First Minister, has appointed Douglas Fairley QC, Anna Poole QC, Sean Smith QC, Sheriff Robert Weir QC, and Sheriff Peter Braid as Senators of the College of Justice.

Douglas Fairley QC and Anna Poole QC will take up appointment on 13 January 2020; Sean Smith QC will take up appointment on 17 February 2020; Sheriff Robert Weir QC will take up appoint on 6 April 2020; and Sheriff Peter Braid will take up appointment on 22 June 2020.

Douglas Fairley QC

Douglas Fairley was educated at Hutchesons’ Grammar School and Glasgow University. He graduated in 1989 with a First Class Honours LL.B. After combining a legal traineeship with part-time work as a professional orchestral clarinettist, he then worked as a solicitor for six years between 1992 and 1998. He called to the Bar in 1999, specialising in commercial and employment litigation. He has served as an employment judge in both Scotland and England (2009-2011), and as an advocate depute (2011-2015). He took silk in 2012 and, since 2015, has continued to work on a wide range of high-profile civil cases.

Anna Poole QC

Anna Poole was educated at Madras College, St Andrews and Oxford University. In 1996 she qualified as a solicitor (England and Wales) at Linklaters in the City of London, then as solicitor (Scotland) at Brodies. She called to the Scots bar in 1998. She became a QC in 2012, after serving as First Standing Junior Counsel to the Scottish Government. She sat part time as UK First-tier Tribunal judge (Social Entitlement Chamber) from 2014, and as arbitrator for MIB cases. In 2018, she was appointed UK upper tribunal judge (Administrative Appeals Chamber), sitting in Edinburgh and London. She is Chancellor of the Dioceses of Edinburgh and Argyll and the Isles.

Sean Smith QC

Sean Smith was educated at Flora Stevenson’s and at Broughton High School, Edinburgh. A graduate of Glasgow University, he was a fellow and lecturer in law at Emmanuel College, Cambridge between 1991 and 1996. He was admitted to the Faculty of Advocates in 1999, and took silk in 2012. He has been Standing Junior Counsel, variously, to the Scottish Government, to HMRC, and to the Office of the Advocate General. Between 2017 and 2019 he served as advocate depute.

Robert Weir QC

A graduate in both history and law, Sheriff Weir served his traineeship with Maclay Murray and Spens, Solicitors, before being admitted to the Faculty of Advocates in July 1995. He served as an advocate depute between 2005 and 2008, took silk in 2010, and was appointed a floating sheriff of South Strathclyde Dumfries and Galloway, based at Hamilton Sheriff Court, in April 2015. He has served as a temporary judge of the Court of Session since March 2017, and took up a position as a resident sheriff at Edinburgh Sheriff Court in April 2018, sitting as one of the specialist sheriffs in the All Scotland Sheriff Personal Injury Court.

Peter Braid

Educated at George Watson’s College, Sheriff Braid graduated from Edinburgh University in 1980 with first class honours, winning the Lord President Cooper prize for best student. He entered the solicitor branch of the profession, becoming a partner in Morton Fraser in 1985 and a solicitor-advocate in 1995, dealing predominantly with commercial litigation. He was appointed as a sheriff in 2005 and currently sits in Edinburgh. In 2015, he was appointed as one of the first appeal sheriffs in the Sheriff Appeal Court, and as a designated Personal Injury sheriff.

NEW SHERIFFS IN COURT

Paul Reid is a law graduate of the University of Strathclyde. In 1985 he started as trainee then assistant and latterly associate with Jno. Shaughnessy Quigley and McColl, Glasgow. He is a founding partner of Fleming and Reid, Solicitors Glasgow. He enjoys Rights of Audience before the High Court of Justiciary, the Court of Session and the Supreme Court. In 2009 he was appointed a part time Sheriff. He has previously held membership of the Scottish Civil Justice Council. He is presently a member of the Scottish Legal Aid Board.

Tony Kelly was appointed Summary Sheriff of Glasgow and Strathkelvin in 2016. A law graduate of the University of Strathclyde, he started his traineeship in 1990 with Messrs. Hannay, Fraser & Co, Solicitors, before becoming associate and then partner. Between 1997 and 2016 he worked with Taylor & Kelly, Court Solicitors in Coatbridge. He was granted Rights of Audience as a Solicitor Advocate in both the Court of Session and High Court of Justiciary in 2012. He was a First-Tier tribunal judge in the Social Entitlement and Immigration and Asylum Chambers. Mr Kelly is a visiting Professor in Human Rights in the University of Strathclyde and a Legal Member of the Parole Board for Scotland.

Sara Matheson graduated in law from Aberdeen University and qualified as a solicitor in 1992. She became accredited as a specialist in child law in 2005 and in family law in 2008.  Ms Matheson was appointed as a Convenor of the Additional Support Needs Tribunal in 2008 and was a founding partner of MTM Family Law in 2012. She was President of the Glasgow Bar Association in 2008 and was appointed as a Summary Sheriff at Airdrie in 2016.

Joseph Hughes is a law graduate of Edinburgh, Glasgow and Strathclyde Universities. Since 1986 he has been Managing Partner of J C Hughes Solicitors Glasgow. From 2004 he was appointed to the Mental Health Tribunal for Scotland, Health and Education Chamber, Pension Appeals Tribunals for Scotland, Scottish Solicitors Discipline Tribunal, NHS Tribunal for Scotland, Police Appeals Tribunal, Housing and Property Chamber, General Regulatory Chamber (Charity), Institute and Faculty of Actuaries Disciplinary Panel, Scottish Housing Regulator Appeals and SFA Disciplinary Judicial Panel. Mr Hughes has also held a number of non-executive, public and charitable positions.

Colin Dunipace is an Honours graduate of the University of Strathclyde. He began his career in 1988 with Barrowmans in Cumbernauld before establishing Dunipace Brown, Solicitors in 1993, where he remains a partner. He was granted extended Rights of Audience as a Solicitor-Advocate in the High Court in 2002. Mr Dunipace was a Council and Board member of the Law Society, and became a part-time Stipendiary-Magistrate in 2010 before appointment as a part-time Summary Sheriff in 2016. Since 2013 he has sat on various Tribunals, including as a fee-paid Judge of the Immigration and Asylum Chamber and being a Board Member of the SCCRC.

Fergus Thomson is a law graduate of the University of Edinburgh. He trained with Bell & Scott WS and qualified as a solicitor in 1996. He worked initially as a banking solicitor, with Dundas & Wilson and Maclay, Murray & Spens, and subsequently in litigation with DLA Piper. He also worked in structured finance with Bank of Scotland.  He was called to the Bar in 2004. A Writer to the Signet and Fellow of the Chartered Institute of Arbitrators, Mr Thomson is currently an Advocate in primarily civil practice.

Mhari Mactaggart is a law graduate of the University of Glasgow. She started as a trainee and became a partner with Robert Carty & Co in 1985. Ms Mactaggart then joined Milligan Mactaggart & Perkins Solicitors as a partner before becoming a senior partner with Mhari S Mactaggart Family Law Practice in 1996. Ms Mactaggart was appointed Part-time Sheriff in 2005. She went on to join Hamilton Burns WS in 2008 as a Consultant and Head of Family Law Team and in 2016 was appointed a Summary Sheriff in Ayr.

Jillian Martin-Brown was appointed as a summary sheriff in Tayside, Central and Fife in 2016. She has particular responsibility for the Problem Solving Court in Forfar. Prior to her appointment, she was a solicitor in private practice, representing the Scottish Prison Service at fatal accident inquiries throughout Scotland. She later worked as an advocate, developing particular expertise in the fields of personal injury and medical negligence. She was appointed as Standing Junior Counsel to the Scottish Government and served as an ad-hoc Advocate Depute for the prosecution service.

The Judicial Appointments Board for Scotland is an independent advisory public body with the role of recommending individuals for appointment to judicial offices within the Board’s remit including judge of the Court of Session, chair of the Scottish Land Court, sheriff principal, sheriff, and summary sheriff.

The First Minister has statutory responsibility for making recommendations to Her Majesty the Queen and is required by statute to consult the Lord President of the Court of Session before making her recommendation.

Previous articles on the lack of transparency within Scotland’s judiciary, investigations by Diary of Injustice including reports from the media, and video footage of debates at the Scottish Parliament’s Public Petitions Committee can be found here : A Register of Interests for Scotland’s Judiciary.

 

 

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EVIDENCE, M’LORD: Scotland’s top judge complains Holyrood judicial transparency probe prevents him recruiting judges – refuses Justice Committee invitation to give evidence in cross-party backed Eight year register of judges’ interests investigation

Lord Carloway refused to meet MSPs. SCOTLAND’S top judge – Lord Carloway – has refused to appear before the Scottish Parliament’s Justice Committee to give evidence on proposals to create a register of judges’ interests contained in a cross party backed petition – Petition PE1458: Register of Interests for members of Scotland’s judiciary

Papers published late yesterday by the Scottish Parliament for next Tuesday’s 19 November 2019 meeting to discuss the petition, state the following: “The Committee also invited the Lord President of the Court of Session, Rt Hon Lord Carloway to give oral evidence on the petition. Lord Carloway declined the invitation, setting out his reasons in a letter to the Committee on 23 August 2019.”

Lord Carloway’s letter to Margaret Mitchell MSP – Convener of the Justice Committee – dated 23 August 2019 – only published late this week, states There would, however, appear to be little that could be said in any further session that does not simply go over ground that has already been covered extensively. It would not, I suggest, be the most fruitful use of the Committee’s valuable time.”

Lord Carloway – real name Colin John Maclean Sutherland – who earns over £220K a year – also complains in the letter to the Justice Committee – that raising the issue of judicial transparency & accountability right now is hampering his ability to recruit judges for well salaried judicial jobs which come with perks, international travel, speaking events, hospitality and gold plated pensions.

Carloway ended his letter to Margaret Mitchell with a barbed comment against the Committee’s proceedings: “We will then be well placed to determine how best to progress this matter which, unfortunately, has been aired at a time when I am attempting to encourage our most senior lawyers to apply for office of judge of the Court of Session and High Court.”

However, documents obtained via Freedom of Information legislation – SCTS Board members shareholdings – and from the Scottish Courts & Tribunals Service (SCTS) Annual Report – SCTS Board register of interests – reveal Lord Carloway and other members of the judiciary are already required to declare some interests in the SCTS Board which runs Scotland’s courts – reported in further detail here: FACULTY LORD: ‘Abbotsford Art & Faculty of Advocates trustee’ declaration of globetrotting £223K a year anti-transparency top judge Lord Carloway, with 20 years on the judicial bench – calls into question scrutiny of Court quango interests register

While Lord Carloway will not be present at next Tuesday’s evidence session, Justice Committee MSPs will take further evidence from Scotland’s first Judicial Complaints ReviewerMoi Ali – who has consistently backed calls for the creation of a register of judges’ interests for all members of Scotland’s judiciary.

Lord Carloway’s refusal to attend the Justice Committee marks the third refusal of a sitting Lord President to give evidence on Petition PE1458: Register of Interests for members of Scotland’s judiciary – which calls for the creation of a publicly available register of judicial interests – containing information on judges’ backgrounds, figures relating to personal wealth, undeclared earnings, business & family connections inside & outside of the legal profession, membership of organisations, property and land, offshore investments, hospitality, details on recusals and other information routinely lodged in registers of interest across all walks of public life in the UK and around the world.

Previous refusals to give evidence on the judicial transparency proposal – saw Lord Carloway’s predecessor – Lord Brian Gill – twice refuse invitations to give evidence to the Public Petitions Committee,

Only upon retiring from the office of Lord President in May 2015, did Brian Gill later accept an invitation to appear before MSPs in November 2015, during which Brian Gill’s angry responses to questions from Public Petitions Committee MSPs ended up being dubbed “passive aggression” by the then Committee Convener – Michael McMahon.

Lord Carloway’s letter to Margaret Mitchell MSP, Convener of the Justice Committee, in full:

I refer to your invitation of 25 June to give evidence to the Committee in relation to the proposal for a judicial register of interests. This is a matter that has been the subject of parliamentary consideration for number of years, with the petition being lodged in 2012. Since then there have been a number of exchanges between the Petitions Committee and both my predecessor, Lord Gill, and myself. Both Lord Gill and I have given oral evidence to the Petitions Committee on this matter. For your convenience, I attach copies of the letters that Lord Gill and I have sent to the Petitions Committee, and also the transcripts of our oral evidence.

I appreciate that your Committee is constituted differently from the Petitions Committee, and that the topic may therefore be comparatively new to its members. There would, however, appear to be little that could be said in any further session that does not simply go over ground that has already been covered extensively. It would not, I suggest, be the most fruitful use of the Committee’s valuable time.

If, however, after consideration of everything that has gone before, it emerges that there are new substantive issues, I would be happy to address them. I would be grateful if you could write to me setting out any new issues that have been identified. We will then be well placed to determine how best to progress this matter which, unfortunately, has been aired at a time when I am attempting to encourage our most senior lawyers to apply for office of judge of the Court of Session and High Court.

This is not the first time Lord Carloway has declined to attend the Scottish Parliament’s Justice Committee to give evidence.

In 2016, Lord Carloway was accused of stifling a Justice Committee inquiry into the Lord Advocate and Crown Office and Procurator Fiscal Service by refusing an invitation to give evidence to MSPs.

The Herald newspaper reported Lord President, Lord Carloway, wrote to every level of the judiciary telling them he has refused to give evidence to the Justice Committee’s explosive probe into the Crown Office and Procurator Fiscal Service (COPFS) – with a clear hint the Lord President’s letter was to discourage others from attending the Justice Committee’s investigation of Scotland’s prosecution service.

He said the Scottish Courts service as an institution should give evidence to the committee, rather than individual members of the judiciary, even retired ones.

After the intervention, the SJA pulled out of its scheduled appearance at today’s committee.

The behind-the-scenes activity is understood to have troubled the committee’s convener, Conservative MSP Margaret Mitchell, who at the weekend told a meeting of JPs she would be concerned if there was a perception that freedom of speech was being restricted.

Opposition parties are also privately uneasy about a possible ‘chilling effect’.

Moi Ali – who served as Scotland’s first Judicial Complaints Reviewer (JCR) – appeared before the Public Petitions Committee in a hard hitting evidence session during September 2013,and gave her backing to the proposals calling for the creation of a register of judicial interests.– reported here: Judicial Complaints Reviewer tells MSPs judges should register their interests like others in public life.

JCR Moi Ali gives evidence to Scottish Parliament on a proposed Register of Judicial Interests

Video footage and a full report on Lord Brian Gill giving evidence to the Scottish Parliament in November 2015 can be found here: JUDGE ANOTHER DAY: Sparks fly as top judge demands MSPs close investigation on judges’ secret wealth & interests – Petitions Committee Chief brands Lord Gill’s evidence as “passive aggression”

Evidence of Lord Gill before the Scottish Parliament 10 November 2015

Later, in June 2017 – Lord Carloway (real name Colin John MacLean Sutherland) did accept an invitation to give evidence at the Public Petitions Committee.

However, Carloway’s position relied on attacking the media, court users, and a demand that judges essentially be exempt from the same levels of transparency applied to all other public officials.

The judge’s appearance at the Public Petitions Committee was widely criticised, after Lord Carloway withered during detailed questions by Alex Neil MSP on serious issues of senior judges failing to declare significant conflicts of interest.

Video footage and a full report on Lord Carloway (Colin Sutherland) giving widely criticised evidence to the Scottish Parliament in June 2017 can be found here: REGISTER TO JUDGE: Lord Carloway criticised after he blasts Parliament probe on judicial transparency – Top judge says register of judges’ interests should only be created if judiciary discover scandal or corruption within their own ranks

Lord Carloway evidence on Register of Judges interests Petitions Committee Scottish Parliament 29 June 2017

In May 2018, the Public Petitions Committee rejected Lord Carloway’s claims of an “unworkable” register, with MSPs ultimately backing the petition after a six year investigation and passing the petition to the Justice Committee for further action in May 2018, with an obvious expectation of progress – reported in further detail here: JUDICIAL REGISTER: Holyrood Petitions Committee calls for legislation to require Scotland’s judges to declare their interests in a register of judicial Interests

Petition PE 1458 Register of Judicial Interests Public Petitions Committee 22 March 2018

HOLYROOD’S EIGHT YEAR JUDICIAL INTERESTS PROBE:

The judicial register petition – first debated at the Scottish Parliament’s Public Petitions Committee in January 2013 – calls for the creation of a publicly available register of judicial interests.

A full debate on the proposal to require judges to declare their interests was held at the Scottish Parliament on 9 October 2014 – ending in a motion calling on the Scottish Government to create a register of judicial interests. The motion was overwhelmingly supported by MSPs from all political parties.

The lengthy Scottish Parliament probe on judicial interests has generated over sixty two submissions of evidence, at least twenty one Committee hearings, a private meeting and fifteen speeches by MSPs during a full Holyrood debate and has since been taken over by Holyrood’s Justice Committee after a recommendation to take the issue forward from the Public Petitions Committee in March 2018.

A full report containing video footage of every hearing, speech, and evidence sessions at the Scottish Parliament on Petition PE1458 can be found here: Scottish Parliament debates, speeches & evidence sessions on widely supported judicial transparency petition calling for a Register of Interests for Scotland’s judiciary.

The Scottish Parliament’s Justice Committee has backed calls for further work on the judicial interests register during at least THREE further Holyrood hearings, including the latest hearing from June 2019, reported here: JUDICIAL REGISTER: Justice Committee to hear evidence from ex-Judicial Investigator, top judge on judicial interests register, MSP says Scottish judges should not be involved with Gulf States implicated in unlawful wars, mistreatment of women’s rights

A report on the Justice Committee’s consideration of the Judicial Interests Register Petition in May 2019 can be found here: JUDICIAL REGISTER: Justice Committee investigate approach to judges’ interests in other countries – MSPs say ‘Recusals register not comprehensive enough’ ‘Openness & transparency do not contradict independence of the judiciary’

A report on the Justice Committee’s consideration of the Judicial Interests Register Petition in February 2019 can be found here: JUDICIAL REGISTER – MSPs urged to take forward SEVEN year petition to create a Register of Judges’ Interests as Holyrood Justice Committee handed evidence of Scottish Judges serving in Gulf states regimes known to abuse Human Rights

Previous articles on the lack of transparency within Scotland’s judiciary, investigations by Diary of Injustice including reports from the media, and video footage of debates at the Scottish Parliament’s Public Petitions Committee can be found here : A Register of Interests for Scotland’s Judiciary.

 

 

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FOI PROBE: Holyrood Committee hear Scottish Information Commissioner backed off promise to bring Freedom of Information to Scottish Police Federation – even after Info. Tsar knew England & Wales Police Fed. already complied with FOI legislation

Scots Police Fed FOI scrutiny. A POST LEGISLATIVE inquiry into Freedom of Information law by the Scottish Parliament has published an account of how the Scottish Information Commissioner backed off promises to recommend FOI compliance for the union which represents all Police Officers in Police Scotland.

Evidence submitted to the Public Audit and Post Legislative Scrutiny Committee (PAPLS) inquiry reveals how the office of the Scottish Information Commissioner initially promised to recommend Freedom of Information compliance for the Scottish Police Federation (SPF) on the social media network Twitter.

However, the SIC then backtracked over multiple enquiries from journalists as to what further work had taken place by Daren Fitzhenry and his staff.

In a tweet dated 18 May 2017, the Scottish Information Commissioner’s office wrote in response to calls for FOI compliance to recommended for the Scottish Police Federation: “Thanks – we’ll add it to our list of bodies to propose to Ministers. Individuals can also make their own representations to the Scot Gov”

The positive response came after the SIC was informed of the Freedom of Information compliance status of the Police Federation of England & Wales – which is enshrined in legislation:

Freedom of Information Act etc: Police Federation for England and Wales: The Police Federation for England and Wales is to be treated for the purposes of— (a)10the Freedom of Information Act 2000,(b)the Data Protection Act 1998, and (c)section 18 of the Inquiries Act 2005, as if it were a body listed in Part 5 of Schedule 1 to the 2000 Act (public authorities).

However, after further enquiries from the medial, no further work on the issue by the Scottish Information Commissioner took place, and in response to further enquiries, the SIC claimed they were under resourced to look into the case and requested journalists make a recommendation to the Scottish Government.

An investigation by journalists into the Scottish Police Federation funding – by using Freedom of Information laws to quiz the Scottish Government – revealed SPF Boss Calum Steele, wrote to the Scottish Government SEVEN DAYS after the Information Commissioner’s promise to recommend FOI compliance for the SPF.

The letter from PC Calum Steele to the Scottish Government informed Ministers the Scottish Police Federation no longer wanted an annual public cash handout of £374,000.

The annual Scottish Government funding grant – which has seen the Police Union rake in significant amounts of public cash over the years – is thought to be one of several reasons serving and former Police Officers along with journalists are seeking FOI compliance for the Scottish Police Federation.

The Public Audit and Post Legislative Scrutiny Committee has now published an evidence submission from journalist Peter Cherbi on how the Scottish Information Commissioner backed off their initial promise to recommend Freedom of Information Compliance for the Scottish Police Federation.

The full submission, available online here is published below:

PUBLIC AUDIT AND POST-LEGISLATIVE SCRUTINY COMMITTEE

POST LEGISLATIVE SCRUTINY – FREEDOM OF INFORMATION (Scotland) ACT 2002

With regard to an example of a failure by the Scottish Information Commissioner to recommend an organisation (in this case the Scottish Police Federation) for FOISA compliance, I would like to submit this matter for consideration by the committee

In my role as a journalist, I was approached by persons including ex Police Officers who drew my attention to the lack of FOI compliance for the Scottish Police Federation and problems which members had experienced when attempting to make enquiries with the SPF – which – had the enquiry been via Freedom of Information legislation, would have been answered, and within a legal framework.

Noting the equivalent Police Federation of England & Wales has been FOI compliant for some time, I approached the Scottish Information Commissioner with a request the Commissioner look to recommend compliance for the Scottish Police Federation – given various transparency issues which had been brought to my attention, and the fact the equivalent Police Federation of England & Wales was already FOI Compliant.

However, while initially the SIC made what appeared to be a policy statement via twitter that they would “add it to the list of bodies to propose to ministers” on 18 May 2017 via twitter https://www.twitter.com/FOIScotland/status/865234073316470785 – further communications between myself and the SIC saw the Scottish Information Commissioner retreat from their earlier position.

A further chaser to the SIC on recommending compliance for the SPF then saw the SIC claim it was under-resourced, and could not undertake the work (although the SIC had written in considerable length on the issue to myself).

Ultimately the SIC then suggested I personally make a recommendation to Scottish Ministers on the matter – however, given what has already been learned in terms of how the Scottish Government treat such requests, and indeed my own experience of Freedom of Information compliance with the Scottish Government, a recommendation from myself as a journalist was unlikely to carry the same weight as one from the Scottish Information Commissioner.

The material accumulated as part of my research, including FOI disclosures from the Scottish Government, and contact with the Scottish Information Commissioner – is published online here: PROBE THE FED: Calls for Holyrood to probe secretive Scottish Police Federation as files reveal SPF General Secretary asked Scottish Government to withdraw £374K public cash grant funding – after social media transparency calls from cops

Given the Scottish Police Federation were in receipt of some £374,000 a year of public funds – an additional matter drawn to my attention by serving & former Police officers, I then sent FOI requests to the Scottish Government and took up the issue – noting that since the SPF was in receipt of public funds, this was an additional reason to bring the organisation within FOISA.

However, it is worth noting after I began to raise the issue with the Scottish Information Commissioner on social media, and some days after I approached the SIC with regards to recommending SPF compliance with FOISA the General Secretary of the SPF wrote to the Scottish Government and requested cancellation of the public cash grant.

It is difficult to conclude the raising of FOI compliance with the SIC, and the SPF’s decision to cancel the £374,400 public cash grant – all occurring within the same week – is a coincidence.

I feel the Committee should look into this matter, as an example of the process of recommending organisations for FOISA compliance.

And perhaps with the question of public funds to the Scottish Police Federation, and the notable request by the SPF for withdrawal of the public cash grant – only days after the issue of FOI compliance was raised publicly, there may be issues which the Committee may wish to explore further.

Among the additional FOI documents disclosed by the Scottish Government include some, but not all minutes of meetings & discussions around the grant funding for the Scottish Police Federation, and as has been consistent with recent Scottish Government releases, documents are subject to significant redactions.

However, while the letter from the SPF General Secretary to the Scottish Government reveals scant detail of SPF finances, former and currently serving Police Officers have posted their concerns on social media with regards to figures of up to ten million pounds held by the Scottish Police Federation in bank accounts & assets.

Social media postings by current and former Police Officers also refer to trips undertaken by SPF representatives including Callum Steele and suspended Sheriff Peter Watson – to various gatherings funded by the Scottish Police Federation.

Meanwhile, as current & former Police Officers & journalists asking questions of the SPF are either blocked online, or subject to social media attacks by supporters of the Scottish Police Federation and politically friendly elements – some of whom give after dinner speeches or lobby for public cash for their ventures, the Scottish Information Commissioner appears to have reneged on their enthusiasm for recommending FOI compliance for the SPF.

HOLROOD COMMITTEE PROBES FREEDOM OF INFORMATION LEGISLATION

The Post Legislative Scrutiny of the Freedom of Information (Scotland) Act 2002 began with MSPs taking evidence from stakeholders on 22 March 2018. The Committee took evidence from the Scottish Information Commisioner on 10 January 2019 and agreed to undertake post-legislative scrutiny of the Freedom of Information (Scotland) Act 2002.

A SPICe briefing was also prepared for the Committee and also contains information about recent developments.

A second SPICe briefing was prepared, which includes global right to information data, September 2019.

Call for Evidence

The Public Audit and Post-legislative Scrutiny Committee launched a call for written views as part of its post-legislative scrutiny of the Freedom of Information (Scotland) Act 2002 (the 2002 Act). The call for views launched on 6 of March 2019. The deadline was extended until the 21 June 2019.

Call for Views; Read the written submissions

The Freedom of Information inquiry has since heard evidence from journalists in an earlier session, where the Committee took evidence in a roundtable format from – Claire Cairns, Coalition of Carers; Severin Carrell, Scotland Editor, The Guardian; Dr Craig Dalzell, Head of Policy Research, Common Weal; Rob Edwards, Director and co-founder The Ferret; Carole Ewart, Convener, Campaign for Freedom of Information Scotland; Stephen Lowe, Policy Officer, UNISON Scotland; Nick McGowan-Lowe, Organiser Scottish Office, National Union of Journalists; and Bailey-Lee Robb, MSYP and Trustee, Scottish Youth Parliament.

A second evidence session also heard from Professor Kevin Dunion, Honorary Professor in the School of Law and Executive Director of the Centre of Freedom of Information, University of Dundee; Dr Karen McCullagh, Lecturer in Law and Course Director, LLM Media Law, Policy and Practice, UEA Law School, University of East Anglia; Professor Colin Reid, Professor of Environmental Law, University of Dundee; Alistair Sloan, Solicitor, Inksters Solicitors; Dr Ben Worthy (by video link), Senior Lecturer in Politics at Birkbeck College, University of London.

A further evidence session later this week on 7 November will feature evidence from Police Scotland; NHS Lanarkshie; Angus Council; NHS Greater Glasgow and Clyde; University of Edinburgh; Scottish Courts and Tribunals Service; Aberdeen City Council; Society of Local Authority Lawyers and Administrators in Scotland.

All updates and progress on the PAPLS inquiry on the Freedom of Information (Scotland) Act 2002 can be found at the Scottish Parliament’s website here: Post-legislative Scrutiny : Freedom of Information (Scotland) Act 2002

 

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FACULTY LORD: ‘Abbotsford Art & Faculty of Advocates trustee’ declaration of globetrotting £223K a year anti-transparency top judge Lord Carloway, with 20 years on the judicial bench – calls into question scrutiny of Court quango interests register

Judges declarations questioned. LATER this month – the Scottish Parliament’s Justice Committee are to consider further evidence on a cross party backed petition calling for judges to declare their interests: Petition PE1458: Register of Interests for members of Scotland’s judiciary

The petition calls for the creation of a publicly available register of judicial interests – containing information on judges’ backgrounds, figures relating to personal wealth, undeclared earnings, business & family connections inside & outside of the legal profession, membership of organisations, property and land, offshore investments, hospitality, details on recusals and other information routinely lodged in registers of interest across all walks of public life in the UK and around the world.

However, EIGHT YEARS on from when the petition was originally filed with Holyrood’s Public Petitions Committee in October 2012 – there has been little movement on creating a register of judicial interests for all members of Scotland’s judiciary.

The Public Petitions Committee’s support for creating the register of judicial interests and transfer of work to the Justice Committee – was reported in detail here: JUDICIAL REGISTER: Holyrood Petitions Committee calls for legislation to require Scotland’s judges to declare their interests in a register of judicial Interests

And – despite cross party support for the petition during a full Holyrood debate in 2014, and backing from the Public Petitions Committee who passed the petition to the Justice Committee with a recommendation in May 2018 – Scotland’s 700 strong judges continue to resist calls to declare their interests in exactly the same way all 129 Members of the Scottish Parliament are required to declare.

While Lord Carloway continues to fight calls for judicial transparency – the existence of a register of interests for the quango which oversees the Scottish Courts and Tribunals Service (SCTS) – gives a miniscule, carefully controlled snapshot of interests – which are far from the reality of a globetrotting top judge who has been on the judicial bench for two decades on a sizeable public salary.

During 2016-18, the previous, and sole declaration of Lord Carloway in the SCTS register was that of “Trustee Scottish Art Club”.

After nearly two decades on the bench as a judge, connections to countless law firms, cases, decisions, and politically charged campaigns such as the removal of corroboration from Scots Law – one could be forgiven for questioning how and why Scotland’s top judge on a quarter of a million pounds a year – with a pension to match – gets away with declaring working with art as an interest – and nothing else.

In the latest SCTS Board register of interests, a new declaration appears for Lord Carloway – under the heading of Appointments Ex Officio – noting the following: Trustee for the Faculty of Advocates, Abbotsford Collection Trust.

The remaining declarations of interests – which notably do not include any references to law firms, property or financial interests are as follows:

Lord President – The Right Hon. Lord Carloway (real name: Colin John Maclean Sutherland) : Appointments Ex Officio: Trustee for the Faculty of Advocates; Abbotsford Collection Trust.

Lord Justice Clerk – The Right Hon. Lady Dorrian: Directorships: Cranley School Ltd; Glenside Court Ltd; Franco- British Lawyers Society Ltd; Appointments Ex Officio: Commissioner of the Honours of Scotland; Senior Commissioner, Queen Victoria School, Dunblane; Trusteeships: Cranley Trust; Faculty of Advocates 1985 Trust; Scottish Arts Club;

Rt Hon. Lady Smith Trusteeships: President and Trustee – Friends of the Music of St. Giles Cathedral; Other Appointments & Interests: Chair – Scottish Child Abuse Inquiry; Honorary Bencher – Gray’s Inn

Sheriff Principal Duncan Murray: Appointments Ex Officio: Commissioner, Northern Lighthouse Board; Trustee Kibble Education and Care Centre

Sheriff Aisha Anwar: No declarations

Sheriff A Grant McCulloch: Trusteeships: Chair West Fife Education Trust. Other Appointments & Interests: Chair Relationship Scotland – Couple Counselling, Fife; Committee Member Cammo Residents Association; Chair – Discipline Committee ICAS; Chair East & West Fife Education Trusts

Morna Rae JP: Appointments Ex Officio: Justice of the Peace; Other Appointments & Interests: Employee North Ayrshire Council Church of Scotland Elder

Dr Joseph Morrow QC: Directorship: Non Executive Director, St. John’s Scotland Appointments Ex Officio: Lord Lyon King of Arms; Member of Judicial Council Trusteeships: Trustee, Mudie Trust, Dundee; Trustee, Kidney Trust, Dundee; Trustee, Tealing Community Hall; Trustee, Scottish Churches Trust; Chairman & Trustee of Highland Cadet Force Foundation; Other Appointments & Interests: Legal Assessor, South Episcopal Church President, Society of Messengers at Arms President, Scottish Genealogical Society Patron, Scottish Family History Society

Dr Kirsty J Hood QC: Directorship: Scottish Universities Law Institute Ltd. Trusteeships: The Stair Society’s Council; Trustee, Clark Foundation Education; Other Appointments & Interests: Self-employed Advocate; Regular ad hoc employment with the University of Edinburgh – delivering seminars on LLB courses; Regular ad hoc employment with the University of Glasgow– delivering lectures / seminars on LLB courses; Periodically providing materials for LexisPSL Dispute Resolution (online services – LexisNexis); Clerk of Faculty – Faculty of Advocates (non remunerated); Member of the Scottish Committee of Frank-British Lawyers Society (non remunerated); Contributor of updates to “Scottish Family Law Service” (LexisNexis Publishers); Guernsey Financial Services Commission’s Panel of Senior Decision Makers.

Simon JD Catto: Other Appointments & Interests: Member of Cornerstone Exchange LLP Member of XT Property LLP Member of Addleshaw Goddard LLP (Head of Litigation Scotland)

Professor R Hugh MacDougall: Trusteeships: Cunningham Trust; Cross Trust; St. Columba’s Hospice; Other Appointments & Interests: St Giles Cathedral Elder, Edinburgh

Joe Al-Gharabally: Directorship: Ernst & Young

Col. David Mcilroy: Other Appointments & Interests: Independent Prison Monitor (Voluntary position supporting HM Inspector of Prisons in Scotland)

Eric McQueen: Appointments Ex Officio: Member of the Scottish Civil Justice Council

Further information in relation to SCTS Board members shareholdings, which was only obtained via a Freedom of Information request to the Scottish Courts & Tribunals Service reveals the following shareholdings declarations:

Rt Hon Lady Smith, President of Scottish Tribunals: Shareholdings: Artemis Fund Managers; Barclays; Ishares PLC; Royal London; Axa Framlington UK; Majedie Asset Management; X Trackers S&P; Blackrock; Invesco; Robeco Capital.

Sheriff Aisha Anwar: Shareholdings: SRZ Commercial Ltd

Sheriff A Grant McCulloch: Shareholdings: Scotgold Resources Ltd

Simon JD Catto: Shareholdings: Cornerstone Asset Management General Investments; Jupiter Merlin Income Portfolio; Schroder MM Diversity Z inc; M&G Recovery 1 Inc; M&G Corporate Bond Fund.

Joe Al-Gharabally: Shareholdings: Ryan Air; AT&T.

HOLYROOD’S EIGHT YEAR JUDICIAL INTERESTS PROBE:

The judicial register petition – first debated at the Scottish Parliament’s Public Petitions Committee in January 2013 – calls for the creation of a publicly available register of judicial interests.

A full debate on the proposal to require judges to declare their interests was held at the Scottish Parliament on 9 October 2014 – ending in a motion calling on the Scottish Government to create a register of judicial interests. The motion was overwhelmingly supported by MSPs from all political parties.

The lengthy Scottish Parliament probe on judicial interests has generated over sixty two submissions of evidence, at least twenty one Committee hearings, a private meeting and fifteen speeches by MSPs during a full Holyrood debate and has since been taken over by Holyrood’s Justice Committee after a recommendation to take the issue forward from the Public Petitions Committee in March 2018.

A full report containing video footage of every hearing, speech, and evidence sessions at the Scottish Parliament on Petition PE1458 can be found here: Scottish Parliament debates, speeches & evidence sessions on widely supported judicial transparency petition calling for a Register of Interests for Scotland’s judiciary.

The Scottish Parliament’s Justice Committee has backed calls for further work on the judicial interests register during at least THREE further Holyrood hearings, including the latest hearing from June 2019, reported here: JUDICIAL REGISTER: Justice Committee to hear evidence from ex-Judicial Investigator, top judge on judicial interests register, MSP says Scottish judges should not be involved with Gulf States implicated in unlawful wars, mistreatment of women’s rights

A report on the Justice Committee’s consideration of the Judicial Interests Register Petition in May 2019 can be found here: JUDICIAL REGISTER: Justice Committee investigate approach to judges’ interests in other countries – MSPs say ‘Recusals register not comprehensive enough’ ‘Openness & transparency do not contradict independence of the judiciary’

A report on the Justice Committee’s consideration of the Judicial Interests Register Petition in February 2019 can be found here: JUDICIAL REGISTER – MSPs urged to take forward SEVEN year petition to create a Register of Judges’ Interests as Holyrood Justice Committee handed evidence of Scottish Judges serving in Gulf states regimes known to abuse Human Rights

TWO TOP SCOTS JUDGES FAIL IN HOLYROOD JUDICIAL TRANSPARENCY PROBE:

Both of Scotland’s recent top judges failed to convince MSPs that a register of interests is not required for judges – even after both Lord Presidents attempted to press home the existence of judicial oaths and ethics – which are both written, and approved by – judges.

Video footage and a full report on Lord Brian Gill giving evidence to the Scottish Parliament in November 2015 can be found here: JUDGE ANOTHER DAY: Sparks fly as top judge demands MSPs close investigation on judges’ secret wealth & interests – Petitions Committee Chief brands Lord Gill’s evidence as “passive aggression”

Video footage and a full report on Lord Carloway (Colin Sutherland) giving widely criticised evidence to the Scottish Parliament in July 2017 can be found here: REGISTER TO JUDGE: Lord Carloway criticised after he blasts Parliament probe on judicial transparency – Top judge says register of judges’ interests should only be created if judiciary discover scandal or corruption within their own ranks

Previous articles on the lack of transparency within Scotland’s judiciary, investigations by Diary of Injustice including reports from the media, and video footage of debates at the Scottish Parliament’s Public Petitions Committee can be found here : A Register of Interests for Scotland’s Judiciary.

 

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SUPREME INTERESTS: UK Supreme Court Judge Lord Reed’s undeclared links to Lord Carloway selection panel & appeal review work – will not alter UKSC “unlawful” Parliament suspension ruling – but should feature in register of judges’ interests

UKSC judge Lord Reed linked to Lord Carloway job panel. A POTENTIAL undeclared conflict of interest of the next President of the UK Supreme Court (UKSC) – in relation to a recent ruling on the unlawful suspension of Parliament – has been discovered from documents obtained from the Scottish Government.

Papers obtained via Freedom of Information legislation and published in 2016 reveal that Scottish judge Lord Reed – who has sat on the Supreme Court since 2012 – also sat on the selection panel which recommended the appointment of Lord Carloway (Colin Sutherland) as Lord President in 2015.

The potential conflict of Lord Reed – identified during discussions with legal sources – has a bearing (but no overall effect) on the ruling by eleven Supreme Court justices in relation to the findings of three Scottish appeal court judgesheaded by Lord Carloway – who declared Prime Minister Boris Johnson’s decision to suspend parliament in the run-up to the October Brexit deadline as unlawful.

In that ruling, Lord President, Lord Carloway, decided that although advice to HM the Queen on the exercise of the royal prerogative of prorogating Parliament was not reviewable on the normal grounds of judicial review, it would nevertheless be unlawful if its purpose was to stymie parliamentary scrutiny of the executive, which was a central pillar of the good governance principle enshrined in the constitution; this followed from the principles of democracy and the rule of law. The circumstances in which the advice was proffered and the content of the documents produced by the respondent demonstrated that this was the true reason for the prorogation.

However, the failure of Lord Reed to declare he sat on the appointments panel which recommended Lord Carloway for the top judicial job in Scotland – is one of two potential conflicts of interest for the Supreme Court judge which may have required to have – at the very uleast – been aired and debated for recusal – prior to the UKSC hearing on the suspension of the Westminster Parliament.

How judges select Scotland’s judges – in secret Scottish Government documents previously obtained by the media revealed the selection panel for the office of Lord President – of which Lord Reed was a member, along with Sir Muir Russell, Judge Lady Dorrian, and Deirdre Fulton – considered five candidates for the position of Scotland’s top judge.

Written exchanges between civil servants and the selection panel which are included in the released papers – reveal a short listing meeting was held on 1 September 2015.

The panel considered that two applicants Lord Carloway [Redacted] merited an interview on the basis of the quality of their applications.

Two emails from Lord Reed, dated 14th ^ 15 October 2015 – released by the Scottish Government in the FOI documents – give a minimal, and heavily redacted description of Lord Reed’s role in the panel’s work, which ultimately recommended Lord Carloway for the position of Scotland’s top judge.

In one email, Lord Reed states: “This strikes me as an excellent report. I have made a few minor suggestions as shown on the attached version. Most of the suggestions are trivial, [redacted]”

In a second email Lord Reed writes “I am content with the amended report. I agree, in particular, with the points which were made by Leeona.
The amended version beems to me to present an accurate account, and a fair and balanced assessment [redacted]”

A further potential interest not declared, brought ot the attention of journalists by a legal source, identifies Lord Reed’s work together with Lord Carloway – on a ‘compatibility issues review’ to consider if the High Court of Justiciary in Scotland would still have to give permission for appeals in criminal cases to go forward to the UK Supreme Court.

The review group was itself established by Lord Carloway, with others appointmed to the group being Lord Reed (Deputy President of the UKSC), and others – Lady Dorrian (Lord Justice Clerk); David Harvie (Crown Agent); Roddy Dunlop QC (Treasurer of the Faculty of Advocates); and John Scott QC (President of the Society of Solicitor Advocates).

The review concluded – “Appeals to the Supreme Court of the United Kingdom (UKSC) should not require certification by the High Court of Justiciary that the issue raises a point of law of general public importance, a review chaired by the Lord Justice General has concluded.”

Although – it should be pointed out – coincidentally, the review on appeals to the UKSC – limited to appeals in criminal cases – came too late to help in several serious cases of judicial conflicts of interest in Scotland – particularly on a well known case where Court of Session judge & Privy Councillor – Lord Malcolm (Colin Campell QC) heard a case up to eight times – while failing to declare his own son represented the defenders in multi million pound damages action.

A report on the Lord Malcolm conflict of interest case can be found here: CONFLICT OF INTEREST: Papers lodged at Holyrood judicial interests register probe reveal Court of Session judge heard case eight times – where his son acted as solicitor for the defenders.

The two potential conflicts of interest, not declared by Lord Reed in relation to what is a law changing UKSC ruling of significant impact – again highlight the need for a publicly available Register of judges’ interests – to ensure members of the judiciary do not forget to disclose interests which may have a bearing on cases before them.

The issue also brings into question again, the self imposed secrecy on judicial interests by the judges of the UK Supreme Court and wider UK Judiciary – who have resisted calls to become more transparent and declare their interests in the same way all public servants and elected politicians are required to declare in publicly available registers of interest.

The current stance of UK Supreme Court judges on transparency in relation to declarations of interest, is a point blank refusal by the judiciary to comply with the public expectation of transparency.

The UK Supreme Court’s website states the following in relation to judicial expenses and interests:

Justices’ interests and expenses

Background

Prior to the creation of the Supreme Court of the United Kingdom, the highest court in the UK was the Appellate Committee of the House of Lords. The members of the Committee were Lords of Appeal in Ordinary appointed under the Appellate Jurisdiction Act 1876. Although those appointments gave them full voting and other rights in the House of Lords, the Law Lords had for some years voluntarily excluded themselves from participating in the legislative work of the House. Notwithstanding that, they were bound by the rules of the House and provided entries for the House of Lords Register of Interests.

On the creation of the Supreme Court the Lords of Appeal in Ordinary became Justices of the Supreme Court. They retain their titles as Peers of the Realm, but are excluded by statute from sitting or voting in the House, for so long as they remain in office as Justices of the Supreme Court. As such, they are treated as Peers on leave of absence; and do not have entries in the House of Lords Register of Interests. Historical information remains accessible via the House of Lords website.

Other judges in the UK, such as the judges of the Court of Appeal and the High Court in England and Wales, and in Northern Ireland, and the Court of Session in Scotland, do not have a Register of Interests. Instead they are under a duty to declare any interest where a case comes before them where this is or might be thought to be the case.

Current position

Against this background the Justices have decided that it would not be appropriate or indeed feasible for them to have a comprehensive Register of Interests, as it would be impossible for them to identify all the interests, which might conceivably arise, in any future case that came before them. To draw up a Register of Interests, which people believed to be complete, could potentially be misleading. Instead the Justices of the Supreme Court have agreed a formal Code of Conduct by which they will all be bound, and which is now publicly available on the UKSC website.

In addition all the Justices have taken the Judicial Oath – and they all took it again on 1 October 2009 – which obliges them to “do right to all manner of people after the law and usages of this Realm without fear or favour, affection or ill will”; and, as is already the practice with all other members of the judiciary, they will continue to declare any interest which arises in the context of a particular case and, if necessary, recuse themselves from sitting in that case – whether a substantive hearing, or an application for permission to appeal.

In relation to the UK Supreme Court’s stance on declarations of interests, and declarations of conflicts of interest, Diary of Injustice reported on the issue in detail during 2017, here: SUPREME SECRETS: UK Supreme Court refuses to publish recusal data – Court rejects release of info on UKSC justices’ conflicts of interest in response to Freedom of Information recusals probe on top UK court

During the probe of UKSC recusals and failure to declare interests, a common thread of dishonesty was noted in court staff’s handling of a Freedom of Information request from Scotland – which was only answered after coverage of the issue in The National newspaper, which prompted the Information Commissioner’s Office to order the court to respond to the request.

Lord Reed’s limited biography on the UK Supreme Court website (reprinted below) does not feature either of the issues identified linking the judge to Lord Carloway’s appointment as Lord President nor any mention of review & other work undertaken with Lord Carloway – including the UK Supreme Court sitting in Edinburgh, which included Lord Carloway as a sitting judge on the UKSC panel.

LORD REED BIOGRAPHY:

Robert John Reed, Lord Reed became Deputy President of The Supreme Court on 7 June 2018. He was appointed as a Justice of The Supreme Court in February 2012.

He studied law at Edinburgh University and undertook doctoral research in law at the University of Oxford. He qualified as an advocate in Scotland and as a barrister in England. He practised at the Scottish Bar in a wide range of civil cases, and also prosecuted serious crime.

He served as a senior judge in Scotland for 13 years. From 2008 to 2012 a member of the Inner House of the Court of Session, and from 1998 to 2008 a member of the Outer House of the Court of Session, where he was the Principal Commercial Judge.

As well as sitting on the Supreme Court and the Judicial Committee of the Privy Council, he is also a member of the panel of ad hoc judges of the European Court of Human Rights, and is a Non-Permanent Judge of the Court of Final Appeal in Hong Kong. He is also the Visitor of Balliol College, Oxford.

Lord Reed is one of the two Scottish Justices of The Supreme Court.

To update readers – on 24 July 2019, the last working day of Prime Minister Theresa May, HM the Queen appointed Lord Reed to serve as the President of the Supreme Court of the United Kingdom and declared her intention to raise him to the peerage.

Lord Reed will take over as President of the United Kingdom Supreme Court from Baroness Hale of Richmond on 11 January 2020.

IMPORTANT NOTE: Readers should note this article does not take sides in the brexit debate. Rather this article is a reporting of a failure to declare or discuss relevant interests and a potential failure to recuse – by a senior judge who has been appointed as the new President of the UK Supreme Court.

 

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SHERIFF WALKS: Scottish Courts confirm lawyer & part-time Sheriff Peter Watson – who was named in £28M Heather Capital writ linked to collapsed £400M hedge fund – resigned from the judiciary in 2018

Carloway lifted suspension, Sheriff resigned.. THE Scottish Courts and Tribunals Service (SCTS) have confirmed a lawyer linked to a collapsed hedge fund – who also served as a judge – and was suspended for over three years “in order to maintain public confidence in the judiciary” – resigned his judicial post in 2018.

Peter Black Watson a former partner in Glasgow based law firm Levy and Mcrae – who was named in a £28million writ linked to the collapse of bust hedge fund Heather Capital – resigned his commission as a part time Sheriff on 10 October 2018.

The information was released by the Scottish Courts and Tribunals Service in response to a Freedom of Information request –  SCTS – Sheriff Watson resignation

The SCTS stated: “I can advise that Mr Peter Watson resigned his commission as a part-time sheriff on 10 October 2018. Mr Watson did not hear any cases between the lifting of the suspension on 12 July 2018 and his resignation. Mr Watson has not submitted any claims for expenses, nor attended any events, nor carried out any judicial functions, since the suspension was lifted.”

Watson’s resignation came less than three months after Lord Carloway had lifted Mr Watson’s record suspension from judicial office of over three years – imposted by Lord Brian Gill in February 2015

Mr Watson was suspended from the Judiciary of Scotland on February 16, 2015 – after the then Lord President, Lord Brian Gill, was informed by a journalist of the claims in the case against Levy and McRae, and specifically against Watson, over Heather Capital’s collapse in 2010.

The move came after allegations surfaced in a £28million writ naming part time Sheriff Peter Black Watson – and his former law firm Levy and Mcrae, and a number of individuals under investigation in connection with the collapsed Heather Capital hedge fund.

In response to queries from the media in February 2015 on the contents of the writ – the Judicial Office subsequently issued a statement confirming Lord Brian Gill  had suspended Sheriff Peter Black Watson (61) on 16 February 2015.

The suspension came after Gill demanded sight of the writ.

Responding to the Lord President’s request, Watson then offered to step aside temporarily – while the litigation concluded – however a Judicial Office spokesperson said “The Lord President concluded that in the circumstances a voluntary de-rostering was not appropriate and that suspension was necessary in order to maintain public confidence in the judiciary.”

A statement from the Judicial Office for Scotland read as follows: Sheriff Peter Watson was suspended from the office of part-time sheriff on 16 February 2015, in terms of section 34 of the Judiciary and Courts (Scotland) Act 2008.

“On Friday 13 February the Judicial Office was made aware of the existence of a summons containing certain allegations against a number of individuals including part-time sheriff Peter Watson.

The Lord President’s Private Office immediately contacted Mr Watson and he offered not to sit as a part-time sheriff on a voluntary basis, pending the outcome of those proceedings.

Mr Watson e-mailed a copy of the summons to the Lord President’s Private Office on Saturday 14 February.

On Monday 16 February the Lord President considered the matter.

Having been shown the summons, the Lord President concluded that in the circumstances a voluntary de-rostering was not appropriate and that suspension was necessary in order to maintain public confidence in the judiciary.

Mr Watson was therefore duly suspended from office on Monday 16 February 2015.”

A fulll report on Mr Watson’s suspension from the judiciary in 2015 can be found here: CAPITAL JUDGE: As top judge suspends sheriff over £28m law firm writ alleging links to £400m Heather Capital collapse, what now for Lord Gill’s battle against a register of interests & transparency for Scotland’s judiciary

In 2018, after matters relating to the Heather Capital writ came to a conclusion, it fell to cScotland’s current top judge – Lord Carloway (Colin Sutherland) to consider the ongoing suspension of Watson – reported in further detail here: CAPITAL NUDGE: Scotland’s top judge Lord Carloway to consider status of de-benched Sheriff Peter Watson – suspended for a record THREE YEARS over £28million writ linked to collapsed £400m hedge fund Heather Capital

Later in July 2018. a statement from the Judicial Office for Scotland on the continuing suspension of part-time sheriff Peter Watson stated:

Following the extra judicial settlement of the Heather Capital action in which part-time sheriff Peter Watson was named as one of the defenders, the Lord President has lifted the suspension imposed upon him in terms of section 34 of the Judiciary and Courts (Scotland) Act 2008. Sheriff Watson will resume part-time judicial duties with effect from 12 July 2018.

Sheriff Watson was suspended from the office of part-time sheriff on 16 February 2015, in terms of section 34 of the Judiciary and Courts (Scotland) Act 2008.

Watson’s former law firm –  Levy & McRae, was one of several companies being sued by Heather’s liquidator, Ernst & Young, after the fund’s collapse in 2010.

Watson was also a director of a company called Mathon Ltd – a key part of the Heather empire.

The collapsed hedge fund Heather Capital – run by lawyer Gregory King was the subject of a Police Scotland investigation and a FIVE YEAR probe by the Crown Office.

However, in early February, the Crown Office coincidently confirmed there would be no prosecutions in the cases of the four individuals  – lawyers Gregory King & Andrew Sobolewski, accountant Andrew Millar and property expert Scott Carmichael – who were charged by Police Scotland in connection with a Police investigation of events relating to the collapse of Heather Capital.

Peter Watson now has his own law business, PBW Law.

Watson, and his former law firm named in the Heather Capital writ – Levy and Mcrae –  also represent the Scottish Police Federation.

Responding to queries from reporters, a  spokesperson for the Judicial Office said: “The action, in which suspended part time Sheriff Peter Watson was among the defenders, has settled.  An interlocutor to that effect has been issued.  The Lord President will consider what, if any, steps now require to be taken‎.”

Despite EY’s withdrawal of the £28million claim against Levy and Mcrae & Peter Watson, detailed claims in the Court of Session revealed the following:

[21]      In the Levy Mcrae case:

  • On 4 January 2007, HC transferred £19 million to its client account with LM (Lord Doherty paragraph [5]).

  • On 24 January 2007, HC transferred £9.412 million to its client account with LM (Lord Doherty paragraph [5]).

  • The money was intended to be loaned to a first level SPV Westernbrook Properties Ltd (WBP) for onward lending to second level SPVs (Lord Doherty paragraph [5]).

  • On 9 January 2007, LM transferred £19 million to a Panamanian company (Niblick) owned and controlled by Mr Levene:the money was not therefore transferred to WBP.The transfer was undocumented and without security (Lord Doherty paragraph [5], and Condescendence 6 and 17, pages 20 and 44 of LM reclaiming print).

  • By a memorandum dated 17 March 2007, HC’s auditors KPMG “identified a number of concerns relating to the documentation provided in respect of these loans”.Further work and information was required (Condescendence 5, page 13 of LM reclaiming print).

  • On 29 March 2007, LM transferred £9.142 million to Hassans, solicitors, Gibraltar, under the reference “Rosecliff Limited” (a company controlled by Mr King):the money was not therefore transferred to WBP.The transfer was undocumented and without security (Lord Doherty paragraph [5], and Condescendence 6 and 17, pages 20 and 44 of LM reclaiming print).

  • In April to June 2007, amounts equivalent to the loans thought to have been made to WBP (including accrued interest) were “repaid” to HC via Cannons, solicitors, Glasgow.The directors were unable to ascertain the source of these repayments (Lord Doherty paragraph [7]).

  • Approaches made by HC to Mr Volpe and Triay & Triay, a firm of solicitors in Gibraltar, were met with a total lack of co-operation (Lord Doherty paragraph [8]).

  • At a board meeting on 6 September 2007, “KPMG could not approve HC’s accounts … Santo Volpe had executed certain loans to SPV companies where non‑standard procedures had been followed which meant that inadequate security had been given for some loans … Gregory King stated that the loans to the SPVs had been repaid in full in May 2007” (Condescendence 5, page 13 of LM reclaiming print).

  • By email to a non‑executive director of HC (Mr Bourbon) dated 7 September 2007, Mr McGarry of KPMG referred to the previous day’s board meeting, and expressed concerns about the situation.He asked for further information, namely “all possible evidence regarding the movement of monies out of Heather Capital into these SPVs and onwards to whatever purpose the funds were applied – ie, sight of bank statements, payment/remittance instructions, certified extracts from solicitors clients’ money accounts etc”.(It should be noted that, contrary to HC’s averment in Condescendence 5 at page 13C‑D of LM reclaiming print, the email did not restrict the inquiries requested to “explaining what information was required from Santo Volpe”:the request was much broader.)

  • In October 2007 the non‑executive directors of HC met with the Isle of Man Financial Services Commission (FSC) to discuss “the issues” (Lord Doherty paragraph [8]).A director also disclosed the suspicious activity and Mr Volpe’s obstruction to the Isle of Man Financial Crime Unit (FCU), who said they would investigate (Condescendence 5 page 14 of LM reclaiming print).The auditors KPMG carried out an additional full scope audit.

  • By letter dated 18 October 2007, FSC wrote to the directors of HC setting out further information which they required.

  • By letter dated 26 November 2007 Mr King advised the HC board that “some sort of fraud had been deliberately introduced with invalid land registry details on a number of the loans”.He stated that he had applied pressure to Mr Volpe and Mr Cannon, whereupon there had been “full repayment of the loans with relevant interest” which meant that “investors were secure”.

  • On 17 December 2007, KPMG signed the accounts and added a completion note using language such as “The risk of fraud increased to high as a result of the documentation issues surrounding the SPVs, where some form of fraud appeared to have been attempted”.In their audit report opinion, they stated “We have been unable to verify where funds advanced to the SPVs were invested.In addition, we were supplied with false documentation in relation to the SPVs which appears to have been a deliberate attempt to mislead us.Given these loans were repaid in the period, we consider that the effect of this is not so material and pervasive that we are unable to form an opinion on the financial statements [opting instead for express qualifications that loan and security documentation could not be validated] … There is uncertainty as to where the monies lent to the [SPVs] were then subsequently invested … Investigations continue to determine what party (or parties) were involved in and were accountable for these events, and whether any action should be taken against them …” (Lord Doherty paragraph [9]).

  • By letter to HC dated 4 January 2008, KPMG gave serious warnings about their inability to validate loan and security documentation, and lack of evidence as to the purpose for which the money advanced to SPVs was applied.In their words:

“ … Our report is designed to … avoid weaknesses that could lead to material loss or misstatement.  However, it is your obligation to take the actions needed to remedy those weaknesses and should you fail to do so we shall not be held responsible if loss or misstatement occurs as a result … [Having explained the disappearance of the funds and the apparent repayments, on which legal advice had been received, KPMG warned] … these matters are extremely serious … an attempted fraud appears to have been perpetrated … We would recommend that the Board continue their investigation into this matter and formally document their decision as to whether or not to inform the criminal justice authorities …”

A full copy of a court opinion detailing these and other claims with regards to a further case against Burness Paull LLB  – which coincidently also collapsed earlier last year – can be viewed here: Court of Session allows proof against Levy & Mcrae and Burness Paull LLP in Heather Capital case as liquidators attempt to recover cash from collapsed £280m hedge fund.

In the motion of abandonment filed by EY & Heather Capital, heard in the Court of Session on 28 February before Lord Glennie, Lady Paton & Lady Clark of Calton, Lord Glennie’s opinion sums up matters in relation to issues in the Heather Capital case, which linked claims of financial wrongdoing directly to Scotland’s judiciary – who, ultimately heard and ruled on the case.

Lord Glennie stated in his opinion:

[97]      I have had the advantage of reading in draft the opinions to be given by Lady Paton and Lady Clark of Calton.  I agree with them and, for the reasons they give, I too would allow parties a Proof Before Answer of all their averments on record preserving all pleas. 

[98]      I would wish to add two comments of my own. 

[99]      The main focus of the debate in each case was whether the pursuer, HC, had made sufficient and relevant averments of “reasonable diligence” for the purposes of section 11(3) and the proviso to section 6(4) of the 1973 Act.  In both cases the Lord Ordinary held that HC had not said enough and in sufficient detail to justify sending the matter to a Proof Before Answer.  The matter could be determined on the pleadings.  Lady Paton has explained why we take a different view.  But I have a more general concern about this approach. 

[100]    In his note of argument in the LM case, under reference to cases such as John Doyle Construction Ltd v Laing Management (Scotland) Ltd 2004 SC 713 at pages 722 – 723 and Watson v Greater Glasgow Health Board [2016] CSOH 93 at paragraphs 22-23, Lord Davidson QC was at pains to remind us that the purpose of pleading is to give fair notice of the assertions of fact sought to be established in the evidence as well as to identify the essential propositions of law on which a party founds.  Elaborate pleading is unnecessary in any action, not just in a commercial action.  The purpose of the pleadings is to give notice of the essential elements of the case.  The pleadings should set out the bare bones of the case.  They are not the place to set out in full the evidence intended to be adduced.  In the present cases that appears to have been overlooked.  To that extent I have some sympathy with Lord Davidson’s submission.  The Closed Record in the BP action, as it appears in the Reclaiming Print, runs to some 59 pages, while that in the LM action extends to 93 pages.  This has happened, so it seems to me, because in their pleadings parties have indulged in a process akin to trial by pleading.  The defenders have made averments of fact intended to undermine the pursuer’s case on reasonable diligence; the pursuer has responded by making further averments addressed to those points;  this in turn has caused the defenders to make further averments or raise further questions;  the pursuer has tried to answer by making yet further averments;  and this is constantly repeated until parties are finally exhausted.  The process resembles one of cross examination and response, a process for which pleadings are quite unfitted.  I do not seek to apportion blame.  In a case such as this, the temptation to pile pressure on to the pursuer by pleading a wealth of detail is difficult to resist;  and a pursuer who does not respond in kind runs the risk of being thought to have no answer to the points which have been raised.  Difficulty arises when the matter comes to debate on the question of whether, for example, the pursuer has made sufficiently relevant and specific averments that it “could not with reasonable diligence have been aware” that loss had occurred (section 11(3)) and that it could not “with reasonable diligence have discovered” the fraud or error induced by the debtor which induced it to refrain from making a relevant claim at an earlier stage (section 6(4), proviso).  Points are made in argument about the failure to take certain steps or to follow up on the particular line of enquiry;  and the Lord Ordinary is invited to form a view that what was done was insufficient or that the reasons given for not doing it are inadequate.  Such an invitation should, in my view, be resisted save in the most obvious case.  The judgments which the court is being asked to make are essentially value judgments, assessments of the reasonableness or otherwise of a party’s conduct.  Such judgments should seldom if ever be made on the basis of the pleadings without hearing evidence.  It may seem obvious, on paper, that something ought to have been done or that a line of enquiry ought to have been pursued; but when evidence is led it might seem less obvious, or there might be good reasons for not taking that course.  It is not the function of pleadings to set out every reason why each relevant individual took or did not take any particular step.  In many cases issues of credibility and reliability might arise, the evidence may be far more nuanced than it is possible to convey on paper, explanations may be given more fully and persuasively than can come over in the pleadings, and some of the criticisms may, in light of all the evidence, be seen to be informed by hindsight.  I should emphasise that I make these observations without reference to any of the particular points decided in the particular cases with which we are here concerned.  But it does seem to me that the cases with which we are concerned illustrate the danger of the court being drawn into deciding cases on detailed averments of fact when it would be more appropriate that all the evidence be heard before any decision is made. 

[101]    The other comment I would wish to make concerns the question of whether the claims advanced in both actions on the basis of the existence of a trust are subject to the 5‑year prescriptive period in section 6 of the 1973 Act or are subject to the 20-year long negative prescription in section 7.  This matter was discussed by Lord Doherty in the LM action at paragraphs [25]-[31].  He concluded that the obligation of a trustee to produce trust accounts is an imprescriptible obligation;  that the liability to make payment of the sum found due in an accounting for trust funds is subject only to the long negative prescription;  and that the obligation of a trustee to restore the value of trust property paid away in breach of trust is also subject only to the long negative prescription.  The matter was not discussed by Lord Tyre in the BP case for reasons which are slightly unclear – matters appear to have proceeded in that debate on the basis that all obligations were subject to the 5-year prescriptive period and that the only issues in that respect concerned the pursuer’s case on sections 6(4) and 11(3) – but it was not suggested before us that the point is not live in that action too.  Detailed submissions on the point were made by Mr Duncan QC on behalf of LM and adopted by Mr Dunlop QC on behalf of BP.  Lord Davidson QC responded on behalf of HC.  I, for one, was grateful for their submissions.  It emerged in the course of those submissions, as it had to some extent at the debate in the LM case, that not only was there a dispute as to the law to be applied in a case of accounting and/or breach of trust but there was also a dispute as to whether the circumstances of the present cases gave rise to a relationship of trust at all or, alternatively, a trust of a kind intended to be excluded from the 5-year short negative prescription.  In light of this, it seems to me that it would be desirable that all of the relevant facts be determined before the issues are decided.  For that reason, and for the reasons given by Lady Paton in paragraph [80] of her opinion, I am persuaded that it would be premature to attempt to decide these points at this stage.

COLLAPSE OF FIVE YEAR CROWN OFFICE PROBE:

In a further twist to the Heather Capital saga, a FIVE YEAR probe by the Crown Office & Procurator Fiscal Service (COPFS) collapsed just a few days before the collapse of the £28million writ against Levy and Mcrae, & Peter Watson.

A report by journalist Russell Findlay revealed: CROWN prosecutors will take no action against four men following a fraud probe into a collapsed £400 million finance firm.

Lawyer Gregory King, 49, and three others were reported to the Crown by detectives who investigated his hedge fund Heather Capital which was based in the Isle of Man.

Heather, launched by King in 2005, attracted investors from around the world and loaned money to fund property deals.

Following its 2010 collapse, Heather’s liquidator Paul Duffy claimed that around £90million was unaccounted for and a police fraud probe resulted in the four men being reported to the Crown Office in April 2013.

An Isle of Man court judgement likened Heather to a ‘Ponzi’ scheme, made famous by US financier Bernie Madoff who was jailed for 150 years in 2009.

The other three reported by police were lawyer Andrew Sobolewski, of Bridge of Weir, Renfrewshire, Andrew Millar, of ­Cambuslang, near Glasgow, and Scott ­Carmichael, of Thorntonhall, near Glasgow.

Last year there was criticism of the Crown for taking so long to consider the case but after almost five years it has now dropped the case.

A Crown Office spokesman said: “Following full and careful consideration of the facts and circumstances of the case, including the currently available admissible evidence, Crown Counsel instructed  that there should be no proceedings at this time.

“The Crown reserves the right to raise proceedings should further evidence become available.”

The Scottish Sun reported on the serving of the £28million civil writ which named lawyer Peter Black Watson – back in February 2015, here:

The Scottish Sun reports:

WRIT HITS THE FAN

FIRM FIRM SLAPPED WITH COURT SUMMONS – Top legal outfit in megabucks lawsuit

Practice is linked to bust hedge fund – Briefs with ties to big business and high-profile clients

By RUSSELL FINDLAY Scottish Sun 15 February 2015

A TOP law firm has been hit with a multi-million pound writ linked to a finance company at the centre of a fraud investigation.

Legal practice Levy & McRae — which acts for footballers, politicians, cops and newspapers — faces the claim over its role in connection with £400million investment scheme Heather Capital.

It’s claimed millions of pounds went missing following the collapse of the hedge fund. And The Scottish Sun told last week how four men — including tycoon Gregory King — have been reported to prosecutors probing the allegations.

King, 46, ran Heather subsidiary Mathon, where Sheriff Peter Watson — a former senior partner at Levy & McRae — was also briefly a director.

The Court of Session summons was served on the firm six months after he left the legal firm.

Watson is one of the country’s most high-profile lawyers and spent 33 years with Levy & McRae before quitting to set up his own business.

The visiting Strathclyde University professor sat on an expert panel created by former First Minister Alex Salmond to look into media regulation in Scotland.

Watson also acted for former Lord Advocate Elish Angiolini after she was harassed by a campaigner who was later jailed.

‘Their clients are a who’s who of Scotland’ And he includes ex-Glasgow City Council chief Steven Purcell among his list of clients, as well as senior police and prison officers.

The legal expert, 61 — chairman of Yorkhill Sick Kids’ Hospital charity — has also acted for former Rangers owner Sir David Murray.

And a Gers supporters’ group closed down its website following legal threats from Watson, who was working for under-fire directors Sandy and James Easdale.

A source said: “Watson and Levy & McRae are very well known and their clients are a who’s who of Scotland.”

Investors from around the world sunk their cash into Gibraltar-based fund Heather Capital, which launched in 2004.

Some of the cash was loaned to Mathon to bankroll developments across Scotland. But many of the Mathon-funded plans did not happen — and some of the cash was not repaid.

Liquidator Paul Duffy of Ernst & Young has been battling to recover investors’ cash since 2010 and is suing Heather’s auditors KPMG for negligence over their role. Isle of Man court documents — acquired by The Scottish Sun — claim Heather was operating a “Ponzi” scheme to dupe investors.

They alleged that as early as December 2006, senior KPMG staff feared that Heather Capital “may have been perpetrating a fraud”.

And in August 2007, KPMG employee Raymond Gawne told a colleague that he was “very uncomfortable” acting for the fund which “may have acted in a criminal manner”.

The claim also alleges that millions of pounds of loans passed through the client account of Glasgow lawyer Frank Cannon who acted for Heather. KPMG senior executive David McGarry sent an email to Gregory King stating: “Frank Cannon has been uncooperative, either in providing some form of explanation for all of the security documentation prepared by his firm, or in agreeing to facilitate access to Cannon’s clients’ money account”. McGarry added he did not accept “that this is due” to Cannon.

Watson declined to comment on the writ and Levy & McRae and Cannon did not respond to our requests for comment.

The Police Scotland report naming Mr King and his associates Andrew Sobolewski, Andrew Millar and Scott Carmichael is now being considered by the Crown Office.

A spokesman for Ernst & Young confirmed: “Heather Capital, via Ernst & Young, has made a claim against Levy & McRae.” And a KPMG spokesman said: “The passages in the plaintiff’s summons provide a selective and misleading picture and are drawn out simply to seek to make what is a wholly unsubstantiated case.

“The allegations are completely unfounded and are being fully contested by KPMG.”

GREGORY KING MARBELLA-based former Glasgow Academy pupil, 46, was a lawyer and taxi firm boss before launching Heather Capital in 2004. Family business dynasty includes nightclub boss cousin Stefan King.

PETER WATSON GREENOCK-born solicitor advocate, 61, carved out a fearsome reputation as a media lawyer during 33 years at Levy & McRae. He also dishes out justice as a part-time sheriff across Scotland.

KING’S £400million hedge fund Heather Capital loaned millions of pounds to Glasgow-based Mathon, of which Watson was briefly a director.

TOP lawyer and part-time sheriff Watson has acted for a string of high profile celebrity, political, sport and media clients in a glittering legal career:

Watson’s clients included Alex Salmond, Stephen Purcell, Elish Angiolini, Yorkhill Hospital Board, Rangers Chiefs.

and a further development reported by the Scottish Sun on the suspension of Sheriff Peter Watson:

Bench ban for sheriff linked to fraud probe

Lawman, 61, suspended

By RUSSELL FINDLAY 25th February 2015, Scottish Sun

A SHERIFF was suspended after he was linked to a collapsed finance firm at the centre of a massive fraud probe.

Peter Watson, 61, was barred from the bench by judges’ boss Lord President Lord Gill following an inquiry by The Scottish Sun.

Watson, whose past clients include ex-First Minister Alex Salmond, was briefly a director of Mathon, a company run by Glasgow bookie’s son Gregory King, 46.

It received millions in loans from King’s hedge fund Heather Capital which crashed owing a seven-figure sum.

Watson’s suspension came 24 hours after we revealed Heather liquidators Ernst & Young filed a multi-million court demand against his former law firm Levy & McRae.

Lord Gill, 73, can suspend sheriffs and judges if it’s “necessary for the purpose of maintaining public confidence”.

Watson forged a fearsome reputation as a media lawyer over 33 years with Levy & McRae before he left the firm six months ago.

King is one of four men named in a police report which is being considered by the Crown Office.

The Judicial Office for Scotland said last night: “Sheriff Peter Watson was suspended from the office of part-time sheriff on February 16.”

The National also recently reported on the continuing suspension of Peter Watson from the judicial bench, here:

Lawyer Peter Watson still suspended despite case ending

Martin Hannan Journalist

Peter Watson was suspended from the bench more than three years ago

LAWYER Peter Watson remains suspended from his position as a part-time sheriff despite a £28 million court action in which he was being sued having been brought to an end.

Lord Carloway, the Lord President and Scotland’s senior judge, is said by legal sources to be considering the position of Watson after Paul Duffy, the liquidator of Heather Capital, abandoned the £28m action against Levy and McRae solicitors in which Watson was a former partner.

Watson was suspended from the bench more than three years ago on February 16, 2015, after the then Lord President, Lord Gill, was informed of the claims in the case against Levy and McRae, and specifically against Watson, over Heather Capital’s collapse in 2010.

It was Watson himself who e-mailed the summons material to the Lord President’s office himself and volunteered “not to sit as a part-time sheriff on a voluntary basis, pending the outcome of those proceedings,” as the Judicial Office stated at the time.

The statement added that Lord Gill had “concluded that … suspension was necessary in order to maintain public confidence in the judiciary.”

Watson now has his own law business, PBW Law.

He told reporters: “I am very pleased that this action has been abandoned and I am looking forward to serving my clients now it is clear that there was no valid basis for this claim.”

A spokesperson for the Judicial Office said: “The action, in which suspended part time Sheriff Peter Watson was among the defenders, has settled.

“The Lord President will consider what, if any, steps now require to be taken?,” the spokesperson added.

Of note – there is no statement on the Judcial Office website in relation to the resignation of Peter Watson from the judicial bench, as of this article’s date of publication on 3 July 2018.

 

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