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LAW, & LAWYERS: Scottish Legal Complaints Commission reveal FIVE cases of sexual offence allegations against lawyers & advocates – clients & courts go uninformed, regulator ‘does not record’ crimes, or consistently record if criminal complaints are made to Police Scotland or Crown Office

Legal regulator reveals sexual offence cases. SCOTLAND’S ‘independent’ legal services regulator – the Scottish Legal Complaints Commission (SLCC) – has revealed it received at least five cases containing allegations of a sexual nature against members of the legal profession since 2017.

In response to a media investigation of allegations of serious sexual assault and related offences alleged to be committed by solicitors & advocates – the Scottish Legal Complaints Commission disclosed the information in response to a series of Freedom of Information requests for relevant data from 2017 to 2021.

In one of three FOI responses, the legal regulator revealed: “Five cases containing an allegation of a sexual nature have been made to the SLCC within the time period specified”

However, the Scottish Legal Complaints Commission went on to state their response came with a caveat – in that the regulator’s search may not have captured all allegations of a sexual offence nature made against solicitors & advocates

The SLCC’s Information Officer stated: “I would reiterate that the SLCC cannot determine what criminal behaviour is and therefore this figure relates to allegations of a sexual nature and we make no comment on whether they would amount to a crime. These figures are subject to a caveat that the SLCC does not record if a crime has been committed or alleged in a recordable format, therefore the above represents a search within the summary of complaint and may not capture all allegations made.”

The SLCC further confirmed four cases were referred to the relevant professional bodies for investigation by the SLCC.

However – the Scottish Legal Complaints Commission went on to admit the regulator does not hold a record of reporting any matters directly to Police Scotland or the Crown Office.

The SLCC stated: “The SLCC does not consistently record if a complaint has also been made to Police Scotland or the Crown Office, however it may be referred to by the complainer at any point. It is entirely for the complainer if they decide to inform the SLCC that they have reported the matter to any other agencies. In respect of the cases identified above, the SlCc was made aware that two of the cases were reported to another agency.”

The SLCC were asked for information in the following questions using Freedom of Information legislation to obtain responses:

1. allegations of, complaints of – and evidence provided to the SLCC of; sexual offences including alleged rape, abuse and assault – committed by solicitors and Advocates/QCs

and information contained in;

2. How many such cases have been reported to the SLCC since January 2017 to the date of this FOI request

3. How many such cases have included evidence material handed to the SLCC since January 2017 to the date of this FOI request

4. How many of these cases resulted in the SLCC reporting matters to – Police Scotland and Crown Office and Faculty of Advocates & Law Society of Scotland

How many of these cases were the SLCC aware or had been made aware these cases had also been reported to – Police Scotland and/or Crown Office, and the Faculty of Advocates and the Law Society of Scotland

The SLCC Response:

I confirm that the SLCC holds some of the information that you have requested and I have responded to each point in turn below. The SLCC endeavours to release as much information as possible. However, it has decided that some of the information you have requested is exempt from disclosure under the exemption(s) found in section(s) 25 (1) of FOISA. I have explained below the reasons for the application of the exemption(s).

1. The SLCC procedure for dealing with allegations of a criminal nature are contained within the Policy and Procedure for the SLCC Complaints Process, s 3. 4. 28. I have included a link here. The SLCC and RPOs are unable to consider an allegation of crime as such as outlined in the Manual, however we can consider if specific actions have breached the professional standards. If a member of the public is of the opinion that a criminal act has occurred, SLCC staff will advise them to contact the Police in the first instance.

2. Five cases containing an allegation of a sexual nature have been made to the SLCC within the time period specified. I would reiterate that the SLCC cannot determine what criminal behaviour is and therefore this figure relates to allegations of a sexual nature and we make no comment on whether they would amount to a crime. These figures are subject to a caveat that the SLCC does not record if a crime has been committed or alleged in a recordable format, therefore the above represents a search within the summary of complaint and may not capture all allegations made.

3. The SLCC is not able to state what would constitute evidence of a crime as it is not a criminal reporting agency. All complaints to the SLCC to be properly made must be submitted on a complaint form outlining what the complaint is and a complainer may provide whatever supporting evidence they feel appropriate. The SLCC is unable to answer this point for the above reason as we do not hold this information. As the SLCC holds no information in relation to the scope of your request, and in line with the Freedom of Information (Scotland) Act 2002, I am issuing you with a Section 17 (1) (b) Notice stating that the information is not held.

4. Four cases were referred to the relevant professional bodies for investigation by the SLCC. Please note the SLCC does not hold a record of reporting any matters directly to Police Scotland or the Crown Office.

5. The SLCC is the gateway for all legal complaints. The SLCC does not consistently record if a complaint has also been made to Police Scotland or the Crown Office, however it may be referred to by the complainer at any point. It is entirely for the complainer if they decide to inform the SLCC that they have reported the matter to any other agencies. In respect of the cases identified above, the SlCc was made aware that two of the cases were reported to another agency.

A second FOI request to the Scottish Legal Complaints Commission sought information in response to the following questions:

1. I would like to make a Freedom of Information request for information contained in; the SLCC’s procedures for how to deal with allegations of, complaints of – and evidence provided to the SLCC of; acts of a criminal nature which can be prosecuted under criminal law – committed by solicitors and Advocates/QCs and information contained in;

2. How many such cases have been reported to the SLCC since January 2017 to the date of this FOI request

3. How many such cases have included evidence material handed to the SLCC since January 2017 to the date of this FOI request

4. How many of these cases resulted in the SLCC reporting matters to – Police Scotland and Crown Office and Faculty of Advocates & Law Society of Scotland

5. How many of these cases were the SLCC aware or had been made aware these cases had also been reported to – Police Scotland and/or Crown Office, and the Faculty of Advocates and the Law Society of Scotland

The SLCC Response

I confirm that the SLCC holds some of the information that you have requested. The SLCC endeavours to release as much information as possible. However, it has decided that some of the information you have requested is exempt from disclosure under the exemption(s) found in section 25 (1) of FOISA. I have explained below the reasons for the application of the exemption(s).

1. The SLCC procedure for dealing with allegations of a criminal nature are contained within the Policy and Procedure for the SLCC Complaints Process, s 3. 4. 28. I have included a link here. The SLCC and RPOs are unable to consider an allegation of crime as such as outlined in the Manual, however we can consider if specific actions have breached the professional standards. If a member of the public is of the opinion that a criminal act has occurred, SLCC staff will advise them to contact the Police in the first instance.

2. The SLCC cannot determine what criminal acts are, however I have identified 12 cases where the complainer has made reference to crimes allegedly being committed by practitioners. The SLCC can only look at complaints in terms of the Rules and Standards applicable to solicitors and advocates in Scotland and we do not consistently record where a crime has occurred or been alleged in a searchable manner. These figures are subject to a caveat that the SLCC does not record if a crime has been committed or alleged in a recordable format, therefore the above represents a search within the summary of complaint and may not capture all allegations made.

3. The SLCC is not able to state what would constitute evidence of a crime as it is not a criminal reporting agency. All complaints to the SLCC to be properly made must be submitted on a complaint form outlining what the complaint is. The SLCC is unable answer this point for the above reason as we do not hold this information. As the SLCC holds no information in relation to the scope of your request, and in line with the Freedom of Information (Scotland) Act 2002, I am issuing you with a Section 17 (1) (b) Notice stating that the information is not held.

4. With the caveat of point 2, 5 of the 12 cases were referred to the relevant professional bodies for investigation by the SLCC. Please note the SLCC does not hold a record of reporting any matters directly to Police Scotland or the Crown Office. As the SLCC holds no information in relation to the scope of your request, and in line with the Freedom of Information (Scotland) Act 2002, I am issuing you with a Section 17 (1) (b) Notice stating that the information is not held.

5. The SLCC is the gateway for all legal complaints and therefore it is not possible to make a complaint directly to the Law Society of Scotland to the Faculty of Advocates.The SLCC does not consistently record if a complaint has also been made to Police Scotland or the Crown Office, however it may be referred to by the complainer at any point. It is entirely for the complainer if they decide to inform the SLCC that they have reported the matter to any other agencies.

Given the nature of several cases where serious allegations of sexuual offences committed by members of the legal profession have been reported to the Scottish Legal Complaints Commission, and material has been provided to regulators to support such allegations – clients, and members of the public may have cause for concern – given the SLCC appears to operate a deliberate policy of failing to record such incidents or notify Police Scotland and the Crown Office.

Information which has been provided to regulators in relation to allegations of sexual offences committed by lawyers and advocates – is currently being investigated by journalists as part of a wide ranging probe of how the legal profession in Scotland deal with offences of a sexual nature committed by solicitors and advocates.

From documents and material handed to the media – which currently cannot be published for legal reasons – there are strong indications both solicitors and advocates have remained in practice, and continued to represent clients in civil hearings, and criminal trials and criminal appeals – while their clients, and accused persons –  remained oblivious and uninformed as to to the nature of serious criminal allegations made against their legal representatives.

And, it appears from scrutiny of the material – which is also in the possession of MSPs – the Law Society of Scotland, the Scottish Legal Complaints Commission, and the Faculty of Advocates – have all sat on cases where allegations of a specific nature of rape, and other serious sexual assault – alleged to have been committed by named individuals within the Scottish legal profession – have been reported by clients, and victims.

In some cases currently being investigated, it can be revealed allegations reported to legal regulators – alleging serious sexual offences committed by named legal practitioners, and potential sexual misconduct committed over lengthy periods of time relating to lawyers working in the courts, and also those working for the prosecution service – have provided credible testimony where legal representatives have broken legal professional privilege in discussing cases related to clients, and accused – and have in writing – actively sought to undermine criminal trials and appeals by breaking confidentiality rules on multiple occasions.

The Judicial Office for Scotland were asked for comment on how the courts and judges should deal with legal representatives facing criminal allegations and investigations while the accused legal representative continues to represent clients, and appear in cases in court.

The media enquiry to the Judicial Office, submitted on 6 April 2021 is as follows:

Can the Judicial Office, Lord President, and Scottish Courts & Tribunals Service provide detail on what your procedures are for dealing with cases where you have been informed or become aware of: criminal complaints (including allegations of serious sexual offences) have been made against QCs, Advocates & solicitors who are representing clients in current court cases, criminal trials and appeals.

and can the Judicial Office, Lord President, and Scottish Courts & Tribunals Service comment on what steps you take to inform & notify:

current cases, criminal trials, appeals, presiding judges, clients & their legal representatives:

that allegations of criminal complaints (including allegations of serious sexual offences) against QCs, Advocates & solicitors have been notified to the Judicial Office, Lord President, and Scottish Courts & Tribunals Service

Additionally When allegations of criminal complaints (including allegations of serious sexual offences) are made to, or notified to the Judicial Office, and Scottish Courts & Tribunals Service by any or all of the following –

legal regulators such as the Faculty of Advocates, SLCC & Law Society of Scotland,PoliceScotland,Crown Office & Procurator Fiscal Service, a victim who has reported such allegations against QCs, Advocates, solicitors or law firms

What steps are then taken by the Judicial Office, Lord President and Scottish Courts & Tribunals service to ensure;

the allegations, Police investigations and any potential criminal charges do not impact on, or impede:

current cases, criminal trials & appeals currently represented by or involving the QC, Advocate or solicitor who is/are subject of criminal complaints (including allegations of serious sexual offences) ?

Does the Judicial Office, Lord President, and Scottish Courts & Tribunals Service require an Advocate or QC or solicitor who is subject to criminal complaints (including allegations of serious sexual offences) to notify:

current clients, the Scottish Courts & Tribunal Service,Crown Office,Advocate’s chambers, law firm, the Judicial Office, and Lord President,The Faculty of Advocates,Scottish Legal Complaints Commission,Law Society of Scotland,and any presiding judges in current cases or criminal trials – that they are subject to a report of allegations of a criminal nature (including allegations of serious sexual offences) ?

As of date of publication, no response has been received from the Judicial Office in relation to the above media enquiry.

A Freedom of Information request to Police Scotland for information in relation to allegations of sexual offences committed by members of Scotland’s legal profession – resulted in a blanket refusal to disclose any information – on the grounds of cost of recovery of such information.

Police Scotland were asked for information in relation to:

allegations of, complaints of – and evidence provided to Police Scotland of;

sexual offences including alleged rape, abuse and assault – committed by solicitors and Advocates/QCs

and information contained in the following (from January 2017 to the date of this FOI request);

How many such cases have been reported since January 2017 to the date of this FOI request

How many such cases have included evidence material handed to Police Scotland since January 2017 to the date of this FOI request

How many of these cases resulted in Police Scotland reporting matters to – Crown Office and legal regulators Faculty of Advocates & Law Society of Scotland

How many of these cases were Police Scotland aware or had been made aware – cases reported to Police Scotland had also been reported to – the Crown Office directly, and reported by complainants to the Faculty of Advocates and the Law Society of Scotland

Police Scotland response:

Having considered your request in terms of the Act, I regret to inform you that I am unable to provide you with the information you have requested, as it would prove too costly to do so within the context of the fee regulations.

As you may be aware the current cost threshold is £600 and I estimate that it would cost well in excess of this amount to process your request.

As such, and in terms of Section 16(4) of the Freedom of Information (Scotland) Act 2002 where Section 12(1) of the Act (Excessive Cost of Compliance) has been applied, this represents a refusal notice for the information sought.

By way of explanation, it is not mandatory to record an individual’s occupation. I can further advise you that even when an occupation is recorded the only way to access this information is via each crime report. There are no relevant markers which allow the automatic retrieval of this level of information. As such this is an exercise which I estimate would far exceed the cost limit set out in the Fees Regulations.

You may be interested in our published crime statistics, which you can access via the following link: https://www.scotland.police.uk/about-us/our-performance

A media enquiry was also sent to the Crown Office and Procurator Fiscal Service (COPFS) on 29 March 2021 seeking a response

However, Andrew Coyle, Communications Manger for the Crown Office replied, stating “As per previous discussions with the Media Relations team, I’m passing your enquiry on to our Freedom of Information team for a response.”

COPFS intentionally converted the media enquiry into Freedom of Information request – with the goal of delaying a response for as long as possible.

The media enquiry to the Crown Office read as follows:

1. Can the Crown Office provide detail on your procedures for dealing with criminal complaints involving allegations of serious sexual offences against members of Scotland’s legal profession

2. And, what procedures exist (including procedures for averting conflict of interest) for investigating allegations of, or criminal complaints of serious sexual offences against members of Scotland’s legal profession (including Advocates & solicitors) who have previously worked at the Crown Office & Procurator Fiscal Service in any role including Advocate Depute

3. and can the Crown Office offer comment on how COPFS handle cases of, & allegations of criminal complaints (including allegations of serious sexual offences) against Advocates and QCs who have previously worked for COPFS and represented COPFS in court.

4. If the Lord Advocate and Crown Office become aware an Advocate or QC (and also an Advocate or QC who currently works for, or has previously worked for the Crown Office in any capacity) has become the subject of criminal complaints (including allegations of serious sexual offences)

Is the Crown Office & Lord Advocate obliged, or required to notify: the Scottish Courts & Tribunal Service, the Judicial Office, and Lord President,The Faculty of Advocates, Scottish Legal Complaints Commission

H Hart of the Crown Office Information and Response Unit replied on query 1 only – stating the following:

There is a general requirement that where an accused or potential accused is a member of the Crown Office & Procurator Fiscal Service (COPFS) staff the case must be reported to the office of the Deputy Crown Agent for Serious Casework (DCA SC). The case will be referred to Crown Counsel for instructions. If an allegation relates to a serving Advocate Depute, then external counsel can be appointed to oversee the investigation.

Where police report a case in which a Justice, Sheriff or other officer of the court is involved as an accused or is implicated in unlawful activities, then a report is required to be made to the DCA SC. Decisions around case marking do not require to be referred to Crown Counsel, although there are occasions where Crown Counsel’s Instructions (CCIs) are sought if the case is deemed to merit it. Factors that would be considered would include the seriousness of the alleged offending.

When a solicitor or trainee solicitor is reported to the Procurator Fiscal for criminal conduct, the DCA SCG will report the case to the Secretary of the Law Society of Scotland. Decisions around case marking do not need to be referred to Crown Counsel, although, again, there are occasions where CCIs are sought if the case is deemed to merit it. Factors that would be considered would include the seriousness of the alleged offending.

If COPFS receives a case in which an Advocate is an accused, following receipt of CCIs, the DCA SCG would write to the Dean of Faculty to make them aware. Similarly, information could be shared with the Judicial Office and/or Lord President if the accused under investigation is a serving member of the judiciary.

Media enquiries to the Faculty of Advocates on the specific nature of how the Faculty handle complaints and allegations relating to serious sexual offences involving advocates and QCs, resulted in the Faculty providing a link to their own procedures.

The Faculty of Advocates were asked the following questions for media comment:

Can the Faculty of Advocates provide detail on what your procedures are for dealing with criminal complaints (including allegations of serious sexual offences) against your members and can the Faculty of Advocates comment on how you handle cases of, & allegations of criminal complaints (including allegations of serious sexual offences) against your members

Additionally When allegations of a criminal complaints (including allegations of serious sexual offences) are made to, or notified to the Faculty of Advocates by – legal regulators such as the SLCC & Law Society of Scotland,Police Scotland,Crown Office & Procurator Fiscal Service, or a victim who has reported such allegations against your members

Does the Faculty notify the Advocate or QC who is the subject of the allegations?, and what steps are then taken by the Faculty?

Also, if there are allegations of serious sexual offences made against members of the Faculty of Advocates –

Is the Advocate or QC who is subject to the allegations allowed to continue practising in cases related to sexual offences, and/or any other criminal cases?

Is the Advocate or QC who is subject to the allegations obliged to notify their clients that they are subject to a report of allegations of a criminal nature (including allegations of serious sexual offences) ?

Is the Advocate or QC who is subject to allegations of a criminal nature (including allegations of serious sexual offences) obliged, or required to notify: the Scottish Courts & Tribunal Service, Crown Office, the Judicial Office, and Lord President, Scottish Legal Complaints Commission, Law Society of Scotland – that they are subject to a report of allegations of a criminal nature (including allegations of serious sexual offences)?

Fay McIsaac, Communications Officer for the Faculty of Advocates responded by email with the following short statement:

“The procedure for lodging a complaint against an advocate and how we handle any complaint is outlined on our website here: http://www.advocates.org.uk/making-a-complaint/how-to-make-a-complaint

Efforts to investigate the blanket silence by legal regulators, Police Scotland, Crown Office and the Judicial Office on cases involving allegations of a serious sexual nature and other allegations of serious criminal conduct committed by members of Scotland’s legal profession – has not hampered the ongoing media probe, which continues to review new material related to allegations of criminal offences against solicitors, advocates and QCs.

All responses to Freedom of Information requests from the Scottish Legal Complaints Commission, Crown Office & Procurator Fiscal Service, and Police Scotland can be read here: SLCC COPFS PoliceScotland FOI responses related to criminal cases solicitors advocates

 

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FIRST INTERESTS: Judge recommended for judicial role by Nicola Sturgeon – found First Minister committed three counts of professional misconduct – in Law Society probe of Ms Sturgeon’s failure to provide legal service protections for domestic violence victim

First Minister recommended judge role for lawyer – who found her guilty of misconduct. AN INVESTIGATION has established Scotland’s First Minister – Nicola Sturgeon – was found to have committed THREE counts of professional misconduct by a solicitor she later recommended for the position of a Sheriff within Scotland’s powerful judiciary – currently led by Lord President – Lord Carloway.

The findings of professional misconduct by Sheriff Pasportnikov against the First Minister – were the result of a complaint lodged by a client to the law firm where Nicola Sturgeon worked at the time – Bell & Craig solicitors.

The complaint against Nicola Sturgeon involved the currently serving First Minister’s failure to provide adequate legal services to a victim of domestic violence.

And, the issues in relation to Ms Sturgeon’s failure to provide adequate legal services only came to light after Ms Sturgeon suddenly left the law firm = and the client was forced to go to another solicitor – who it was reported – discovered legal aid forms had not been sent to the Scottish Legal Aid Board – despite assurances the legal aid application had been submitted.

In response to the complaint – the Law Society of Scotland appointed a case manager – a solicitor, and now Sheriff – Olga Pasportnikov – to investigate.

In a five-page report, dated Dec 1998, Olga Passportnikov said: “The complaint in this case has been identified as professional misconduct by breach of code of conduct and conduct unbecoming a solicitor.”

Pasportnikov identified three counts ‘of professional misconduct by breach of code of conduct and conduct unbecoming a solicitor’.

They were: failing to raise interdict, misleading client about legal aid application & failing to properly consider her financial circumstances

Among ‘circumstances which have been ascertained during the course of the enquiry’ were the legal aid form had been completed and signed by the client and the client’s employers but not sent.

Despite the findings of Sheriff Pasportnikov, and her identification of multiple serious issues where she concluded Ms Sturgeon’s failure to provide competent legal services qualified as professional misconduct – the Law Society of Scotland concluded there should be no further action and Nicola Sturgeon left the legal profession.

It is important to note – the Law Society of Scotland cleared Nicola Sturgeon even after their case manager Ms Pasportnikov identified various breaches of professional misconduct by Nicola Sturgeon – and that Ms Sturgeon – who then ‘stood down’ from the legal profession – to contest a seat for the Scottish National Party – then entered politics without an on the record finding of professional misconduct by the Law Society of Scotland.

Records show from announcements in the legal profession’s press, and Scottish Government news postings –  Announced on 31 July 2015 – Olga Pasportnikov was appointed by the Queen following a report to the First Minister Nicola Sturgeon – by the Judicial Appointments Board for Scotland.

Ms Pasportnikov, a University of Dundee graduate, was admitted as a solicitor in 1991. She worked mainly in private practice before joining the Law Society of Scotland in 1998. She has been with the Crown Office & Procurator Fiscal Service since 2003, and is also current convener of the Fife Young Carers Management Committee.

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.

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.

It has since come to light this story was filed with a Scottish newspaper for publication in June 2018 – after several other newspapers refused to publish the story.

According to now deleted tweets from a former journalist which have now been widely published online – a story on the complaint regarding Nicola Sturgeon’s failure to provide adequate legal services to a victim of domestic violence, and the identification of several counts of professional misconduct against Ms Sturgeon by currently serving Sheriff Olga Pasportnikov – had support from one editor to be published – until a ‘Political editor’ at the same newspaper voted the story down.

The deleted tweet goes on to allege that some weeks later, the same newspaper which did not publish the story on Nicola Sturgeon – was leaked details of the harassment complaints against Alex Salmond and the investigation by Police Scotland – which subsequently led to Mr Salmond being charged with 14 offences, including two counts of attempted rape, nine of sexual assault, two of indecent assault, and one of breach of the peace.

Mr Salmond appeared in court on 21 November 2019 and entered a plea of “not guilty”.

At the subsequent trial, Mr Salmond was cleared by a jury trial – heard by Scotland’s Lord Justice Clerk – Lady Dorrian.

The information came to light after Justice Committee Convener Adam Tomkins (Scottish Conservative) & former Scottish Government Legal Affairs Minister Annabelle Ewing (Scottish National Party) made a motivated and concerted effort to close down the same Judicial Interests Register petition which Nicola Sturgeon has opposed and sought to close – throughout her term as First Minister.

The Justice Committee hearing of 2 March 2021 can be viewed here: Register of Judges Interests Petition PE 1458 Scottish Parliament Justice Committee 2 March 2021

This is the same Judicial Interests Register petition the First Minister has tried to undermine and block since Ms Sturgeon became First Minister.

If a Register of Judges’ Interests did become a requirement – Sheriff Pasportnikov who found Nicola Sturgeon guilty of professional misconduct may be forced to list that fact and other details of her service to the Law Society of Scotland.

On Wednesday 3 March 2021 – the Judicial Office for Scotland were asked the following questions:

A currently serving Sheriff – Olga Pasportnikov – conducted an investigation of complaints lodged about Scotland’s current First Minister Nicola Sturgeon while she was a solicitor at a law firm identified as Bell & Craig

Ms Pasportnikov was, as the Judicial Office will be aware – a case manager for the Law Society of Scotland from September 1998 to March 2003

In a five-page report released in December 1998, Olga Pasportnikov said: “The complaint in this case has been identified as professional misconduct by breach of code of conduct and conduct unbecoming a solicitor.”

Olga Pasportnikov found Ms Sturgeon guilty of 3 identifyable counts of professional misconduct:

They were: failing to raise interdict as instructed, misleading client about legal aid application, failing to properly consider the client’s financial circumstances

Events then saw the Law Society clear Ms Sturgeon, who quickly left the legal profession.

Noting Ms Pasportnikov currently declares her time at the Law Society of Scotland on her Linkedin page as a “case manager” – along with other career attributes including a term at the Crown Office as a Procurator Fiscal Depute, and her current role as a serving Sheriff

– does Sheriff Pasportnikov have any comment onthe following questions:

why she does not list her role of investigating complaints against solicitors?

why she found Ms Sturgeon guilty of 3 identifyable issues of professional misconduct?

why no regulatory punishment took place upon Sheriff Pasportnikov’s findings?

Does the Judicial Office have any comment on the above events and any comment on the impact of a currently serving Sheriff with a long history as a solicitor, prosecutor and now a judge – having found Scotland’s current First Minister Nicola Sturgeon guilty of three counts of professional misconduct to which no sanction was ever applied by legal regulators and never declared in any register of interests?

On Friday 5 March 2021 – the Judicial Office for Scotland (JOFS) issued a statement to the media.

The Judicial Office claimed Sheriff Pasportnikov had forgotten she had investigated a complaint case involving the current First Minister Nicola Sturgeon,

A spokesperson for the Judicial Office said:

“The Sheriff was one of a number of case managers working on the Law Society for Scotland’s Client Relations Team from 1998 – 2003. Her role was limited to that of gathering and categorising information as a first step in a much longer process. She did not produce any reports or make any findings. Covering a volume of work, she would not remember specific names in routine cases, including where a solicitor was cleared entirely.”

“In Scotland, sheriffs are appointed by Her Majesty on the recommendation of the First Minister, who makes their recommendation on the basis of a report by the Judicial Appointments Board for Scotland (JABS). The First Minister has statutory responsibility for making recommendations to Her Majesty and is required by statute to consult the Lord President of the Court of Session before making their recommendation.”

“JABS 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.”

A response to the Judicial Office statement was submitted – querying the JOFS claim, and confirming – that material now in the public domain – does confirm Sheriff Pasportnikov did in-fact – investigate a complaint against Nicola Sturgeon and that Sheriff Pasportnikov identified several breaches of professional misconduct by Ms Sturgeon.

No reply to the additional query has been received, nor has the Judicial Office disputed the terms of questions & information supplied to JOFS staff.

It would be difficult to believe a case relevant to the current First Minister was forgotten about by the investigating reporter – Sheriff Pasportnikov – as there is obviously only one Nicola Sturgeon in Scotland – the current First Minister.

Earlier today, a legal expert assessed the material now in the public domain and deleted tweets from a former journalist which names a Scottish newspaper and a ‘spiked’ story on Ms Sturgeon.

The legal expert said he hoped the Committee on the Scottish Government Handling of Harassment Complaints would now scrutinise the information available and ask further questions of the First Minister.

He said: “In view of suggestions on social media platforms – a former journalist held this information for a number of years, and approached several newspapers seemingly without success – people may reasonably expect questions to be asked of why this story has not come to light until now and the method of travel to the media.”

He added: “Was there motive in withholding this story involving Scotland’s First Minister, either by a newspaper, a political party or a journalist? I am curious to find out. However, I am also curious as to why no one with the information offered the material in evidence to the long running Scottish Parliament investigation of issues involving Alex Salmond.”

“Given the First Minister responded to questions on what appear to be references to the investigation of Ms Sturgeon and a newspaper deal –  MSPs should ask rigorous questions of anyone involved in this matter given the situation we face where information now exists alleging the Sheriff complaint probe of Scotland’s First Minister was allegedly swapped for a story on harassment complaints and a Police investigation of Alex Salmond in the summer of 2018”

In discussions late this afternoon – others have come forward to confirm they were aware of this story for some time, but were unable to obtain any answers from Ms Sturgeon on these events.

JUDICIAL INTERESTS REGISTER – would have required declaration of Sheriff’s role in FM Complaint:

It has been previously reported Nicola Sturgeon personally intervened to block the Judicial Register petition – during a long running investigation by the Scottish Parliament’s Public Petitions Committee

The surprise intervention by the First Minister in the bid to bring transparency to Scotland’s secretive judges came to light after a failed attempt by her then Legal Affairs Minister – Paul Wheelhouse – to overturn the petition with claims that ‘gangsters’ could misuse information in a judges register.

In the letter – dated 30 March 2015 – Nicola Sturgeon also revealed Legal Affairs Minister Paul Wheelhouse had a secret meeting in February 2015 with Lord Gill to discuss the petition and the Judiciary & Scottish Government’s concerted opposition to creating the Judicial Register.

Writing in the letter to John Pentland MSP, Convener of the Public Petitions Committee, the First Minister said: “This petition calls on the Scottish Government to create a Register of Interests for the Judiciary. The Scottish Government considers that such a register of judicial interests is not necessary and that the existing safeguards – the Judicial Oath, the Statement of Principles of Judicial Ethics and the system for complaints against the judiciary – are sufficient. These safeguards, together with the register of judicial recusals, are sufficient to protect individuals from judicial bias.”

Further to the evidence that the Minister for Community Safety and Legal Affairs, Mr Wheelhouse, gave to the Committee on 9 December 2014, he discussed this petition when he met the Lord President in February. The Minister acknowledged the Lord President’s concerns about the introduction of a register of judicial interests. The breadth of such a register would make it virtually unworkable. It would need to cover not only financial interests, but also memberships of groups and associations and familial and social relationships. Even so, such a register might not capture relevant issues that could arise.”

“The position of the judiciary is different from that of MSPs and others who hold public office. The judiciary cannot publicly defend themselves. The Lord President has cautioned that such a register could also have unintended consequences. Consideration requires to be given to judges’ privacy and freedom from harassment by aggressive media or hostile individuals, including dissatisfied litigants. In addition, there is currently no evidence that judges who should have recused themselves from cases have not done so.”

The Sunday Herald newspaper reported on First Minister Nicola Sturgeon’s intervention on behalf of the judiciary and her opposition to the judicial transparency proposal:

First Minister rejects call for register of judges’ interests

Paul Hutcheon Investigations Editor Sunday 10 May 2015

NICOLA Sturgeon has rejected calls for judges to declare details of their finances in a register of interest. The First Minister said the proposal, lodged by justice campaigner Peter Cherbi, was “not necessary” and claimed existing rules were “sufficient”.

Holyrood’s Public Petitions Committee is in the middle of a long-term probe into whether judges, sheriffs and justices of the peace should be brought into line with other senior public sector figures.
MSPs, MPs, councillors and board members of public bodies are all required to register their outside financial interests.

A petition lodged with the Scottish Parliament in 2012 called for members of the judiciary to declare their “pecuniary” interests, which would include shareholdings, directorships and membership of external bodies.

Judicial officer holders can recuse – or remove – themselves if a conflict of interest arises during a case, but nothing more is required.

The plan was met with hostility by the country’s top judge, Lord Gill, who repeatedly snubbed calls by the committee to give oral evidence. He relied on written testimony to blast a proposal he said could compromise judges’ privacy by encouraging “aggressive media or hostile individuals”.

Lord Gill concluded: “The establishment of such a register therefore may have the unintended consequence of eroding public confidence in the judiciary.”

The issue has now reached the desk of the First Minister, who has backed Lord Gill.

In a letter to John Pentland MSP, the Committee convener, she supported the status quo: “The Scottish Government considers that such a register of judicial interests is not necessary and that the existing safeguards – the Judicial Oath, the Statement of Principles of Judicial Ethics and the system for complaints against the judiciary – are sufficient.

“These safeguards, together with the register of judicial recusals, are sufficient to protect individuals from judicial bias.”

She also repeated Lord Gill’s fear about “aggressive media” and noted: “The position of the judiciary is different from that of MSPs and others who hold public office. The judiciary cannot publicly defend themselves.”

The First Minister also revealed that Paul Wheelhouse, her Minister for Community Safety and Legal Affairs, met Lord Gill in December to discuss the petition.

In his evidence to the Committee, Wheelhouse said he feared a register could leave judges open to “threats or intimidation”, adding that colleagues at an environment quango had already been threatened by organised criminals. However, emails between the Government and Scottish Environment Protection Agency revealed no link to organised crime.

Cherbi said: “I am surprised Nicola Sturgeon supports a judicial ban on transparency just because judges have been asked to declare their substantial interests. “We are always told if you have got nothing to hide you have nothing to fear. What are the judges hiding and what do they fear? “There cannot be one set of rules for judges and another for everyone else. A register of interests will enhance public trust in the justice system, not detract from it.”

A Scottish Government spokesperson said: “The Scottish Government considers that a specific register of interests is not needed. Existing safeguards, including the Judicial Oath, the Statement of Principles of Judicial Interests and the system of complaints against the judiciary, are sufficient to ensure the impartiality of the judiciary in Scotland.”

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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LOOKING AFTER LAWYERS: Scotland’s THIRD attempt in 20 YEARS at reforming complaints against lawyers is doomed to fail at the hands of vested interests – but there is a Scottish Government consultation you can all participate in – for purposes of PR & distraction politics

Clients, their lawyers, & complaints reform. IN THE past TWENTY years since the Scottish Parliament came into being, there have been two earlier attempts at creating a transparent, independent body to investigate complaints against the legal profession.

As many readers will be well aware, both previous attempts at reforming self regulation of lawyers in Scotland – failed miserably after two Justice Committee investigations of how the legal profession regulates itself.

It was inevitable, that the combined vested interests of Scotland’s legal profession – the Law Society of Scotland, Faculty of Advocates, along with all their sub-groups, backed up by the judiciary – lobbied to remain in charge of looking after their own.

And, Scotland’s legal profession did exactly that – looked after their own.

Headline after headline, investigation after investigation, and even when BBC Scotland deigned to come along in 2014 with “Lawyers Behaving Badly” – albeit using fantastical cases resembling dubious, ever altering cave paintings carved in fossilised stone from the Jurassic age to put their point across – about dodgy legal regulators looking after their own rogue lawyers – nothing changed.

Yes, it is true – the Scottish Legal Complaints Commission (SLCC) came along in 2008 – as a response to an ‘extensive’ probe by the Scottish Parliament’s Justice 2 Committee in 2006 of complaints against lawyers and how the Law Society of Scotland ‘handled’ clients & consumers who complained against the legal profession – to the point of destruction.

However, twelve years on from the creation of the Scottish Legal Complaints Commission, anyone with a serious & geniune complaint who has used it, knows the SLCC as more of a Cayman Islands front company for lawyers to look after their own, rather than the allegedly ‘independent’ SLCC was created and put in place by civil servants who had little clue or knowledge what they were actually doing.

Sadly, the Scottish Legal Complaints Commission spent the last twelve years mirroring the work previously done by the Law Society of Scotland where lawyers were protected time & again, while clients were often targeted by the legal profession after complaints had been submitted to the ‘independent’ SLCC.

In any case, there is now a third attempt at reforming complaints against lawyers, and you can participate in it.

On 23 December 2020, the Scottish Government published the latest consultation on reforming complaints about the legal profession – along with a questionnaire for those who like that sort of thing to fill out, and send back in the forlorn hope your views and experiences will be taken into account.

You can download the Scottish Government consultation documents here: Scottish Government Consultation: Amendments to Legal Complaints (pdf) and here Respondent Information Form and Questionnaire (docx)

The details are as follows:

Complaints against lawyers and legal firms in Scotland: consultation

Published: 23 Dec 2020

This consultation sets out proposals and seeks views on potential improvements to the legal complaints system, within the current legislative framework of the Legal Profession and Legal Aid (Scotland) Act 2007.

The handling of complaints is one of the most important parts of any regulatory system. It is crucial that users of legal services have access to an efficient, effective and fair process for dealing with their complaint. Equally, legal professionals rely on a complaints system which is efficient, effective and can resolve complaints in an impartial manner.

There is a compelling case for the consideration of amendments to the current regulatory framework for dealing with complaints that would seek to improve the way in which the legal services complaints system operates.

The objectives behind these proposals

This Consultation seeks views on whether these proposals would meet the objectives of:

1. Reducing the overall time taken to deal with complaints.

2. Achieving greater proportionality in the complaints system, allowing the SLCC to identify earlier in the process which issues are more likely to require investigation.

3. Reducing the cost of the complaints system.

4. Continuing to ensure an independent and fair system.

5. Providing greater flexibility in the system.

The changes proposed in this paper seek to build on previous changes made in 2014[1] and are based on 10 years’ working knowledge of the current legislation and the experience of the current system.

The current proposals in this Consultation on which views are sought, and which are intended to have a cumulative effect in meeting the objectives, fall into three categories:

1. Changes to the process of complaint categorisation;

2. Changes to the process of complaint investigation, reporting, determination and conclusion of cases; and

3. Changes to the rules for fee rebates.

The proposed changes listed at 1 and 3 can be viewed as standalone amendments but those listed at 2 should be viewed as a package of amendments in order to gain the maximum impact from the changes.

The proposals – a summary

The aim of the proposals detailed below is to explore options to create a more flexible and proportionate complaints system, that will be more efficient yet just as effective, if not more so. Views on whether these proposals address stated frustrations of those who have been involved in the complaints system, who often perceive it to be time consuming and overly complex, are also sought in response to this consultation.

Why is this important?

Those who make or are subject to complaints in respect of legal services have indicated that they would wish for a speedy, robust and proportionate response to each complaint. While all complaints are equally important, there is a recognition that not all complaints are the same. Those who manage the complaints process, as well as many of those who have experienced it, have stated that they consider the current statutory framework insufficiently flexible to enable the process to be adapted to the specific subject of the complaint in each individual case.

While a one-size-fits-all-approach provides consistency in the application of the complaints process, there is an argument that this does not always lead to an efficient system, with the result in the current system that the end of the complaints process can often be some time away from the time of the original incident that led to the complaint. This can be unsatisfactory for all of those involved in the process. These proposals are intended to reduce this time period and improve efficiency while continuing to maintain a robust and fair system.

Costs

The cost of the legal services complaints process administered by the SLCC is met by way of levies on the legal profession. These take the form of an annual general levy paid by all legal services providers[1] as well as a separate complaints levy[2] which is payable only by those legal professionals who are subject to a complaint which is upheld.

Should the proposals set out in this Consultation be taken forward then they will likely take time to be fully implemented. There is also likely to be a cost implication for implementation. Depending on the range of amendments ultimately decided to be taken forward, implementation in year one is likely to have associated costs in terms of changing rules, process and IT systems. These costs will be borne by the SLCC and it is not presently expected that these will require an increase in funding to either of the above levies. However, in the first full year of operation, and likely after set-up costs are offset, the proposed changes in this Consultation could lead to longer term savings.

A. About this Consultation

The objective of this consultation paper is to offer an opportunity for targeted views to be gathered on the technicalities of making specific changes to the legal complaints system in Scotland.

The main proposals relate to possible changes to the categorisation of complaints to introduce hybrid-issue complaints as well as changes to the processes of assessment, investigation, reporting, determination and conclusion of complaints. Possible changes to the rules on fee rebates are also proposed.

Responding to this consultation

The Scottish Government are inviting responses to this consultation by 20 February 2021.

Please respond to this consultation using the Scottish Government’s consultation hub, Citizen Space (http://consult.gov.scot). Access and respond to this consultation online at https://consult.gov.scot/iustice/amendments-to-legal-complaints/. You can save and return to your responses while the consultation is still open. Please ensure that consultation responses are submitted before the closing date of 20 February 2021.

If you are unable to respond using our consultation hub, please complete the Respondent Information Form to:

Access to Justice Unit Scottish Government Justice Directorate St Andrew’s House Edinburgh EH13DG

Or by email to: LegalServicesRegulationReform@gov.scot

An earlier report on the Esther Roberton review, and how it began, is here: LOOK AFTER THE LAWYERS: Law Society proposals to pro-lawyer legal review seek to reclaim control of regulation & complaints, appoint ‘window dressing’ ombudsman & criminalise ‘misuse’ of the term “lawyer”

 

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BANKRUPTCY PROBE: Creditors & law firms in judicial conflict case linked to top judge – were excluded from sequestration by Trustee handed role by law firm linked to bust £400M Heather Capital Hedge Fund, & Court of Session illegal fee deal judgement

QC branded Levy & Mcrae ‘untrustworthy’ in £6m case. A LAW FIRM branded “untrustworthy” by a senior QC, and which once stood accused of transferring millions linked to the collapsed £400m Heather Capital Hedge Fund – is now at the centre of a case linked to judicial conflicts of interest, and the resolution of two remaining issues in a controversial sequestration linked to Scotland’s top judge.

Levy & Mcrae – the Glasgow based law firm who were recently found to have constructed an illegal fee agreement along with Advocate Jonathan Brown – in a case involving A&E Investments & businessman Robert Kidd – are now accused of appointing a trustee – Kenneth Pattullo of insolvancy practitioners Begbies Traynor – who hindered and excluded creditors attempts to secure consideration of legitimate debts including legal fees & legal funding of Mr Nolan’s case.

Files now handed to the ongoing media investigation – reveal that two remaining issues of the long running Nolan v Advance case – relate to the deliberate exclusion of creditors in the sequestrations of Mr Nolan and his partner – after their £6m action against Advance Construction – heard by Lord Woolman in the Court of Session – scored a victory on principle – but lost out on legal expenses.

The documents – released by the Accountant in Bankruptcy – reveal creditors – including solicitors who provided legal services, and the providers of significant legal funding which enabled Mr Nolan to go into the Court of Session and secure the win against Advance Construction – still await a consideration of sums due to them from the sequestrations.

However, further enquiries and responses from the Accountant in Bankruptcy now indicate the Trustee Kenneth Pattullo – who was directly appointed by Levy and Mcrae at Hamilton Sheriff Court in the sequestrations of both Mr Nolan and his partner – did not take account of either of the significant debts – which comprise most of Mr Nolan’s legal fees and legal expenses.

Instead – records show that Mr Pattullo and others at Begbies Traynor – did not reply to enquiries from legitimate creditors and solicitors – and focused on selling off a portfolio of properties including substantial plots of land in Wishaw, and a valuable farm – to pay Mr Pattullo’s own fees, and an offshore vulture fund known as Promontoria – which bought additional debt incurred by Mr Nolan and his partner from the secured lender – The Clydesdale Bank.

In a response to a request for review – Alex Reid of the AIB commented “Representation has been received highlighting that neither Mr Nolan nor his solicitor [redacted] received notification of any meeting of creditors. In accordance with Section 21A of the Act the trustee must give notice to every creditor known to him, at the time, whether or not they intend to hold a creditor meeting…”

However, it can be revealed the AIB have previously been presented with copies of confidential emails from law firms to Mr Pattullo’s office – showing multiple requests by lawyers to contact Begbies Traynor to establish communication and a consideration of positions regarding legal fees, and legal funding provided to Mr Nolan for his court case.

The new evidence raises questions of why Begbies Traynor did not acknowledge creditors attempts to communicate with the Trustee while there are multiple references within the released files to legal fees geneerated by Levy & Mcrae for their client – Advance Construction (Scotland) Ltd.

The files also slow some Edinburgh based law firms who did act on behalf of Mr Nolan were included in the sequestration – while other law firms, creditors and providers of legal funding do not appear.

With over 1000 documents released by the AIB currently being studied – it can now be reported that the two remaining creditors have now secured significant backing to present their case for consideration of debts and repayment to the Accountant in Bankruptcy – who are expected to remain involved in this process for some time.

Within the sequestration files released by the Accountant in Bankruptcy, legal fees for Advance Construction appear to amount to around £212K – which is in the form of legal fees the company are alleged to have paid Levy & Mcrae, and Gavin Walker & Roddy Dunlop QC.

However – legal sources close to the case have raised questions over the ‘small’ sum of £212K – given the length of the case and lawyers who represented Advance – such as Peter Watson, Jamie Robb and Ewen Campbell, with the addition of Gavin Walker QC and Roddy Dunlop – the current Dean of the Faculty of Advocates.

To compare – the legal fees of around £212K used by Advance Construction to sequestrate both Mr Nolan and his partner are much less than Mr Nolan’s legal costs – which are estimated at up to £500,000.

Mr Nolan’s legal fees including include hiring of construction site plant & equipment, use of multiple law firms including Biggart Baillie, Tods Murray, and John Campbell QC, advocate Craig Murray, solicitor Gavin McPhail and additional inspection and survey reports on contaminated material which culminated in Advance Construction being forced to admit in court they had dumped the contaminated material  illegally on Mr Nolan’s land.

And, while it is a matter of record the pursuer – Mr Nolan – won his action against Advance Construction in the Court of Session – his own QC – John Campbell – inexplicably withdrew his own client’s claim for legal expenses – which would have seen most or all of the legal fees and legal funding paid by the defenders had Mr Campbell returned to court for the expenses hearing.

A law accountant who has studied the case is of the view that had Mr Nolan’s counsel – John Campbell QC made the usual court claim for legal expenses against Advance Construction – Lord Woolman or any judge hearing the exepnses claim would have granted much of Mr Nolan’s legal expenses along with his victory in the case against the defenders – Advance Construction.

However, Mr Campbell did not follow through with instructions to appear at an expenses hearing and lodge a full claim for Mr Nolan’s legal expenses.

Mr Campbell has not offered any explanation for his refusal to lodge an expenses claim for his client’s winning case, and instead was found to have withdrew much of the claim without any instruction to do so.

A full report on how John Campbell QC reduced his own client’s financial claim almost to zero and without any instruction or consultation – can be found here: CASHBACK QC: Legal regulator’s files reveal senior QC reduced claim without instructions, withheld key evidence & witnesses including Cabinet Secretary from Court of Session case

A further investigation of John Campbell’s involvement in the case revealed the senior QC signed a no-win-no-fee agreement with his client Mr Nolan – then went back on it’s terms after Campbell refused to appear for the expenses hearing and the case had concluded.

A full investigation of Campbell’s fee scam and the Faculty of Advocates role in concealing undeclared cash payments to Campbell is reported in further detail here: CASH ADVOCATE: £9K consultations & £75K meetings – Edinburgh Quaich Project Charity QC Boss scammed clients on no-win-no-fee deal – Faculty of Advocates files reveal extent of Advocates cash-for-fees HMRC tax dodge scam

Ironically, during discussions with his clients – John Campbell himself described Levy and Mcrae as “untrustworthy” and

An earlier investigation revealed Trustee Kenneth Pattullo of Begbies Traynor was directly appointed by Levy and Mcrae at Hamilton Sheriff Court in the sequestrations of both Mr Nolan and his partner.

Documents previously published revealed Levy & Mcrae altered the appointment of the AIB in the sequestration of Mr Nolan’s partner to that of their own preferred choice – Mr Pattullo.

Now – fresh questions over the conduct of the Accountant in Bankruptcy have now been raised after documents revealed Levy & Mcrae requested the AIB become Trustee in the sequestration of Mr Nolan – in Jamuary 2015.

The letter and petition, published here:  Petition to appoint AIB January 2015 Jamie Robb Levy Mcrae reveals Jamie Robb of Levy & Mcrae asked the AIB to assume the position of Trustee in their sequestration of Mr Nolan in January 2015.

Records then show Levy & Mcrae went on to appoint Mr Pattullo in the same unusual manner in Mr Nolan’s sequestration – and the AIB did nothing in either case – despite having the power to intervene and call a meeting of all interested parties including debtors & creditors alike to find a way forward after the court’s alteration of an appointment where the court did not appear have the power to act.

A previous report published material which questioned the court’s improper use of powers to switch out Trustees in the sequestration of Mr Nolan and his partner from the Accoutant in Bankrutpcy to Mr Pattullo, here: FIRE SALE: AIB face sequestration probe as files reveal Trustee was paid £20K by vulture fund to sell home & firebombed farm five days after targeted attack on couple at centre of land case linked to top Scots judges, an ex-Sheriff, an asbestos dumping building company & law firm Levy and Mcrae

And, an earlier investigation revealed Scotland’s top judge – Lord Carloway (Colin Sutherland) – deliberately concealed his own links to this case while he faced questions in the Scottish Parliament from MSP Alex Neil and members of the Public Petitions Committee, here: JUDGE OF CONFLICT: Top judge who attacked MSPs over judicial interests probe – failed to declare relative’s role at law firm targeting MSP’s constituents’ home & farm in £6M court case linked to Lord Malcolm conflict of interest scandal

Nolan v Advance Construction Scotland Ltd [2014] CSOH 4 CA132/11 is the same case which exposed serious conflicts of interest in Scotland’s judiciary – notably where Lord Malcolm (Colin Campbell QC) failed to disclose on multiple occasions – the fact Lord Malcolm’s son – Ewen Campell – represented the defenders in the same court.

The investigation into the Lord Malcolm case of serious failures to declare conflicts of interest, is reported in further detail 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.

LAW FIRM AT CENTRE OF ILLEGAL FEES & CONFLICT OF INTEREST CASE:

Earlier this year, Levy & Mcrae – the same law firm who masterminded the Advance Construction case in the Court of Session, and the resulting sequestrations of the pursuers in a case now linked to Scotland’s top judge Lord Carloway – were found by Lord Doherty to have constructed an illegal fee agreement after a ruling by Lord Doherty.

Levy & McRae had billed their former client – businessman Robert Kidd the seven-figure sum after representing him in a successful damages claim against another firm of solicitors.

The £19 million settlement figure was paid to Levy & Mcrae – after the firm deducted it’s legal fees which included £3million of “success fees” for winning the case.

Mr Kidd then launched a legal action against Levy & McRae, claiming it should not have charged him the success fees on top of its legal fees.

The case was heard by Lord Doherty – who later ruled the fees were “illegal and unenforceable”,

The judge said the fees breached a legal principle designed to prevent conflict of interest when a lawyer has a financial stake in the amount a client gets in compensation.

The £6million sum included a basic fee to Levy & McRae of £2.1million plus a success fee of £1.89million while advocate Jonathan Brown was paid £1.1million plus a success fee of £990,000.

Lord Doherty said: “The substance of what was agreed was that the defenders’ (Levy & McRae and Jonathan Brown) remuneration would increase in proportion to the sum recovered.

“That gave them a clear ­pecuniary interest – a stake – in the amount recovered.

“In my view, that pecuniary interest created a conflict of interest which gave rise to an unacceptable risk that the proper administration of justice might be obstructed.”

Levy and Mcrae have lodged an appeal against the decision by Lord Doherty.

The full judgment from Lord Donerty is here: A&E Investments Robert Kidd v Levy & Mcrae and Jonathan Brown – Lord Doherty 2020csoh14

And more a recent report in the Sunday Post Top advocate found guilty of “unsatisfactory professional conduct” after charging client extra fee of almost £1 million reports the Advocate Jonathan Brown was found guilty of “unsatisfactory professional conduct” after charging his client – Robert Kidd an extra fee of almost £1 million for representing him in a successful £20m damages action against another firm of solicitors.

The case arose after Mr Kidd hired lawyers, including Mr Brown, to sue his former solicitors over the sale of his oil firm ITS. Mr Kidd said Mr Brown had failed to tell their QC Andrew Smith details of the arrangement which brought his total bill to £2m.

The Sunday Post further reported that the Faculty of Advocates Disciplinary Committee has since made a finding of unsatisfactory professional conduct against Mr Brown, ruling that he should have informed Andrew Smith QC that he had an arrangement with Mr Kidd by which his fee increased according to the amount recovered from the opponent, and how the amount on which the success fee was measured should be calculated.

Mr Kidd’s spokesman Jim Diamond told the Sunday Post: “We’re very happy with the decision of unsatisfactory professional misconduct. We want the success fee repaid in full plus interest at 8%. We will also be seeking repayment of our legal fees in this matter which could amount to more than £100,000.”

Levy & Mcrae – Court papers reveal their part in Heather Capital hedge fund writ

Detailed documents submitted to the Court of Session as part of a now abandoned writ against Levy & Mcrae and their former partner Peter Watson – revealed the following acts attributed to Levy & Mcrae and Heather Capital:

[21]      In the Levy Mcrae case:

  • On 4 January 2007, Heather Capital transferred £19 million to its client account with Levy & Mcrae (Lord Doherty paragraph [5]).

  • On 24 January 2007, Heather Capital transferred £9.412 million to its client account with Levy & Mcrae (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, Levy & Mcrae 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, Heather Capital’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 Levy & Mcrae reclaiming print).

  • On 29 March 2007, Levy & Mcrae 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 Heather Capital 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 Levy & Mcrae 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 Levy & Mcrae 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.

 
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Posted by on October 1, 2020 in Blogroll

 

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COURT ON AUDIO, M’LORD: Clients should be given SAME DAY access to Court of Session audio recordings – as ongoing probe reveals QC’s admissions in case linked to Lord Malcolm, Lord Carloway & concealed judicial conflicts of interest

Court recordings should be available same day to clients. AN ONGOING media investigation into hearings in Scotland’s top court – the Court of Session – has received evidence which casts doubt on the integrity of witnesses and  counsel’s actions – which could be remedied if unedited digital audio recordings were required to be provided to clients involved in cases – upon the conclusion of a hearing.

Audio recordings of hearings in a £6million land case Nolan v Advance Construction (Scotland) provided by a court source – and a study of their content have led to calls for clients who already pay tens of thousands of pounds for their claims to be hard by the Court of Session – to be given unrestricted access to audio records of proceedings in court – without obstruction or prohibitive cost being used to block access to proceedings in their case.

In the case which features in the released audio –  extraordinary exchanges between counsel, witnesses and the judge – Lord Woolman – can be clearly heard and further exchanges were counsel take an unrealistic, if combative approach with local planning officials in attempts to conceal or contradict legislation relating to the dumping of toxic, hazardous waste from the court.

In the cassette tapes of the Court of Session hearings – obtained by journalists from court sources – the audio recordings of interactions between witnesses, John Campbell QC, and the current Dean of the Faculty of Advocates – Roddy Dunlop QC – has since led to a separate investigation which has discovered one of the chief witnesses in Nolan v Advance held compromising interests linked to the defenders – which were concealed from the court and the judge – Lord Woolman.

In one exchange, Dunlop questions a North Lanarkshire Council planning officer – Mr Fraser Miller – on the conditions and legislation which are required for the removal of hazardous material including asbestos. From the recordings and what happened in court, it becomes clear the planning officer says planning permission would be required to remove the asbestos from the site, and the same permission would be required fo the asbestos to be dumped on the site.

As the case proceeds over a number of days in August 2013 before Lord Woolman – Dunlop’s client – Advance Construction (Scotland) Ltd – are ultimately forced to admit to Lord Woolman they were responsible for illegally dumping the toxic material on Mr Nolan’s property.

The audio tapes of the Nolan v Advance hearings go on to reveal many discrepancies between the accounts of what John Campbell QC said to his own client, and what actually transpired in court – including the as yet unexplained reasons why Campbell QC removed much of his own client’s financial claims – and critically the claim for legal expenses – without receiving any instruction to do so.

While it is important to note this case was initially won by Mr Nolan – the pursuer –  the failure of counsel to return to court for legal expenses against the defender led to financial loss & disaster after counsel for the pursuer turned on his own client by inexplicably stripping out much of the financial claim – an act which Lord Woolman said he had never seen in such a case.

A full report on how John Campbell QC reduced his own client’s financial claim almost to zero and without any instruction or consultation – can be found here: CASHBACK QC: Legal regulator’s files reveal senior QC reduced claim without instructions, withheld key evidence & witnesses including Cabinet Secretary from Court of Session case

Readers may be familiar with Nolan v Advance – one of the most extraordinary cases in recent times – which has since led to the discovery of carefully concealed interests of Court of Session judge Lord Malcolm (Colin Campbell QC) and Scotland’s current top judge – Lord Carloway (Colin Sutherland).

During a consultation between journalists currently engaged in the probe and court sources, further issues in the Nolan v Advance case have now come to light including a source which identified a comment between counsel to the effect of an unreferenced instruction with some degree of motivation – which states “you have got to four o’clock to get this sorted”.

And now – further audio recordings have been provided to journalists which lay down in crystal clear terms an extraordinary attitude on payment of fees on the part of the pursuer’s legal team – which included John Campbell QC, advocate Craig Murray and solicitor Gregor McPhail.

The legal team for Mr Nolan had previously signed up to a no win no fee agreement – which Campbell admits to in the recordings.

However, and without hesitation Campbell then appears to turn against the fee deal and demands his team all be paid – this coming after further material and already published emails revealed John Campbell demanded, and insisted on collecting  in person – cash sums of up to five thousand pounds at a time from his client Mr Nolan.

In one exchange – Campbell QC says “As fond as I am of you, none of us are doing this for love and neither is Craig [Murray]”

Campbell is then challenged over his already agreed position of working on the case via a no win no fee deal

John Campbell agrees he was working on a no win no fee deal but then replies: “That is correct, hmmm but we just have to see whether that actually holds up because hmm you know…”

A number of further recordings are now being studied where it is acknowledged by counsel Lord Woolman states he is  concerned about counsel’s lack of provision to the judge of evidence given by certain witnesses for the pursuer, Mr Nolan.

In an additional audio provided to journalists, John Campbell QC – who now heads the Edinburgh based Quaich Project – clearly admits responsibility for key failures in his presentation of evidence to the court.

Journalists and technical experts are now considering the content of the court recordings for futher publication and potential inclusion in reports to the Scottish Parliament’s Justice Committee of events in the Nolan v Advance case which identify a pattern of deliberate and concealed conflicts of interest by judges in the Court of Session.

And – in another court case where recordings have also come to light, it is also very clear what happens in court is very loosely transcribed to parties when there are requests by court participants for transcripts – some costing clients tens of thousands of pounds over hearing after hearing.

In a further case presented to the media team looking into Court of Session audio recordings – a court source has come forward with claims that a transcribing firm who were given court recordings as part of an order for transcripts – were told in a phone call to go easy on certain dates across hearings in one major case – and pay less emphasis to one side’s counsel in their provision of a final transcript ordered by the other side’s legal team.

A legal insider who has been given access to some of the audio material handed over to journalists now believes clients should be given unfettered access to recordings of their cases in court.

He said: “Clients pay a lot of money for their legal representatives to take a case through to the Court of Session and should be provided with audio recordings of each day’s proceedings at the end of that day”

He added: “The equipment to record court hearings has been installed for some time, and this should be properly used to ensure clients on both sides of the court have access to these recordings, without any attempt by court staff or the sitting judge to use unsatisfactory excuses or prohibitive costs as a reason for withholding audio access to those who are paying for the hearings.”

Currently, clients can request a copy of recordings from the Court of Session to be transcribed by an external private company, however – seldom if ever do the actual audio recordings pass into the hands of clients or either side’s legal team.

Clients must pay for the transcribing of the court recordings in what can run into bills of tens of thousands of pounds, however – there are notes of many cases where court staff, and the judge have blocked a client’s request to obtain transcripts of proceedings – and even when the court has agreed to transcription in some cases – clients and legal teams have identified multiple omissions in transcripts which suggest a motivated approach was taken to omit particular evidence from print.

For the media, a different approach to recording and broadcasting from the Court of Session & High Court of Justiciary currently exists in the following format:

Protocol on Recording and Broadcasting of Proceedings in the High Court of Justiciary and the Court of Session, and the Use of Live Text Based Communications from Court

Broadcast: Except where the context otherwise requires, for the purposes of the Protocol,
“broadcast” means the transmission to members of the public of a video and/or audio recording; or live streaming. For the purposes of the Protocol, a recording refers to a video and/or audio recording. Broadcast may be for live streaming, news broadcast or documentary production. Individual sections within the Protocol identify the extent to which broadcasting may be permitted for a particular type of case.

Guiding Principle: The guiding principle is that broadcast of court proceedings is in the interests of open justice and for the information and education of the public.

Judicial Control: Subject to the guiding principle, whether a hearing should be recorded must remain under judicial control. The court may rule that, in any given case, recording a hearing would not be in the interests of justice.

Fair and Accurate Reporting: A report or presentation of proceedings that includes a broadcast of a hearing must be fair and accurate, having regard to the overall content of the report or presentation and the context in which the broadcast is presented. It must not be used for: the purposes of a party political broadcast; advertisement or promotion (except where such advertisement or promotion relates to a report or presentation that includes the broadcast); light entertainment; comedy or satirical purposes.

For the purposes of the Protocol, a media party means a journalist registered with the Scottish Courts and Tribunals Service (SCTS), or a party who can provide sufficient, appropriate evidence of relevant journalistic or documentary work. Any media party wishing to record a hearing is required to submit an application using one of the prescribed forms

Applications must be submitted to Judicial Communications for consideration by the Broadcast Working Group well in advance of the date of commencement of proceedings.

On receipt of an application, the Broadcast Working Group must notify the residing/chairing judge and ask him, or her, to provide to the Broadcast Working Group any comment or response which he, or she, may have on the application within an agreed time. Once the Broadcast Working Group has considered any such comment or response, it must make a recommendation to the Lord Justice General (or Lord Justice Clerk) as to whether the application ought to be approved. The final decision lies with the Lord Justice General or, in the absence of the Lord Justice General, with the Lord Justice Clerk. Approval may permit recording to take place in accordance with sections 2 to 5, or in accordance with any additional conditions as may be specified.

A decision on the application must be intimated to the media party within an agreed time. In the event of an application being refused, in whole or part, written reasons must be provided by the Broadcast Working Group.

In the event of an application being refused, in whole or part, the media party may submit an amended application taking into account the reasons for refusal.

If permission to record is granted, the Broadcast Working Group must appoint an SCTS staff member as a liaison officer. That officer is the point of contact between the media party and the court for all purposes connected with the recording.

If permission to record proceedings is granted, the presiding/chairing judge retains responsibility for ensuring that: the grant of permission remains appropriate; the recording is carried out on the terms approved by the Broadcast Working Group; and the recording is carried out in a way which does not disrupt court business. If, at any stage in the proceedings, the judge forms the view that to proceed with the recording would constitute a threat to the administration of justice, or that such a risk is present, or that the media party has breached the Protocol or any condition imposed, the presiding/chairing judge may withdraw the permission. If the presiding/chairing judge is considering withdrawing permission, an opportunity should be afforded to the media party to make representations to the judge before a final decision is reached.

Despite the progress of technology in the world outside of Scotland’s creaky Victorian courts and justice system, recording and broadcasting of what goes on in Scotland’s courts has not yet had the full impact on increasing transparency and accountability in the justice system which the same application of audio and video technology have had in courts in other jurisdictions.

Currently, the media must rely on a ‘judge-led’ review chaired by Lady Dorrian – who was appointed to chair it by Lord Brian Gill, Scotland’s former Lord President and Lord Justice General who famously liked to go after the media and block access to courts and documents during his short three year term as Lord President in which he continually held the media, and transparency in disdain.

Report of the Review of Policy on Recording and Broadcasting of Proceedings in Court, and Use of Live Text-Based Communications

A judge-led group which was appointed by the Lord President to review the current policy on the recording and broadcasting of proceedings and the use of live text-based communications from Scottish courts has published its report.

The review group, chaired by Lady Dorrian, has made a series of recommendations following a public consultation exercise, to which 17 individuals and organisations responded.

The review, which examined the existing practice in Scotland and other jurisdictions, was carried out in the context of a complete acceptance of the importance of the principle of open justice, recognising however that any steps taken in support of this principle must not pose any risk to the administration of justice.

In summary, the report recommends the following:

  • Filming of civil and criminal appeals, and legal debates in civil first instance proceedings, such as judicial review or procedure roll hearings, should be allowed for live transmission. Subsequent news broadcasting and documentary film-making should be allowed subject to clear and comprehensive guidelines.
  • The court should allow criminal trials to be filmed for documentary purposes in certain circumstances, subject to the safeguards referred to in the report. Cases involving children, sexual offences and vulnerable witnesses should not be filmed.
  • No live transmission or filming for subsequent news broadcast should be allowed for criminal first instance business or for civil proceedings involving witnesses.
  • For subsequent news broadcasts, the delivery of sentencing remarks of the judge should be permissible, with filming focused only on the sentencing judge.
  • Filming of criminal trials for live transmission should not be allowed.
  • In civil cases at first instance, filming for documentary purposes only should be allowed, but should exclude certain groups such as family cases and those involving asylum seekers.
  • A structured approach to considering applications to film.
  • All filming should be subject to robust, clear and comprehensive guidelines.
  • Journalists who register in advance with the Scottish Court Service should be permitted the use of live text-based communications such as Twitter from court, subject to guidelines which will be issued in due course.

The Lord President, Lord Gill said: I am grateful to Lady Dorrian and her group for having carried out this exercise so thoroughly. These well-considered recommendations have the support of the judges. I accept all of the recommendations. They are entirely appropriate in the contemporary world. My office will now prepare guidance on the implementation of Lady Dorrian’s report.”

On 18 October 2012, the Lord President, Lord Gill, appointed a judicially led media review group, whose remit was to review policy on the recording and broadcasting of proceedings in court. This was later extended to include consideration of the use of live, text-based communications (LTBC) from court.

Guidance on the conditions under which cameras could be allowed in court was previously contained in a practice note issued by Lord President Hope in 1992. These conditions were revised by Lord President Hamilton in 2012. The revised conditions allowed filming to take place without the consent of all parties involved. The production company and broadcaster had to provide an undertaking to the presiding judge that the final broadcast would not identify those who had not consented to the filming.

The passage of time since guidance was issued, together with the development of social media, the use of instant text-based communication and the broadcasting of proceedings before the UK Supreme Court have all contributed towards a need to review this matter. When filming for documentary purposes has taken place in Scotland, the guidelines have had to be complemented by detailed negotiations as to the precise terms in each case. In appointing this review group, the Lord President considered that a more structured approach was desirable, not least in the interests of consistency.

The review was chaired by Lady Dorrian. The other members were: Lord Bracadale, Lord Woolman, Sheriff Principal Stephen, and Sheriff Drummond. The group was supported by: Christopher Nicholson, Deputy Legal Secretary to the Lord President; Elizabeth Cutting, Head of Judicial Communications; Steven D’Arcy, Head of Strategy and Governance, Judicial Office for Scotland.

 

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