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Offshore trusts, property holdings, insurance syndicates, hospitality from dodgy lawyers, yet no plans for a register of interests for Scottish judges

06 Oct

Parliament_House,_EdinburghScottish Judges refuse to declare hospitality or interests, yet their decisions on civil cases frequently side with vested interests, affect billions of pounds & countless lives. SCOTTISH JUDGES are refusing to disclose hospitality they receive or complete a register of interests which may potentially reveal to many court users some members of the judiciary presiding over civil damages claims, a professional negligence or medical accident claims, or even in some cases criminal cases, may well have accepted hospitality from, have a friendship or association with, or might even have a business relationship with whoever is standing at the other side of the court room. No matter the severity of the conflict of interest, no one has has the right to know, because there is no register of interests or hospitality for Scottish judges and no plans to bring one in by the current Lord President Lord Hamilton.

The Judicial Office for Scotland, which represents Scotland’s judiciary was forced to publish judicial expenses figures over a year ago after Diary of Injustice investigated judicial expenses claims and Freedom of Information requests revealed a significant amount of money being claimed by judges & sheriffs all across Scotland. The story of Scotland’s multi million pound judiciary and their expenses claims can be read here : Scotland’s Judiciary and its expenses claims.

However, it seems transparency in the judiciary only goes so far and will NOT extend to publishing a full & frank register of hospitality or interests, with the Judiciary Office for Scotland declaring there are NO PLANS to publish a register of hospitality for Scotland’s multi million pound judiciary. A further statement by the Lord President available on the Judiciary of Scotland website appears to indicate there are no plans for a register of interests

A spokesperson for the Judicial Office for Scotland stated : “The Judicial Office for Scotland does not hold a register of hospitality for members of the judiciary and there are no plans to do so. The Lord President has set out formal guidelines to the judiciary in the STATEMENT OF PRINCIPLES OF JUDICIAL ETHICS. Para 4.9 and 7.2 address this particular point.”

While the Judicial Office may be reluctant to disclose more information on its members, curious court users & legal insiders who have long been looking into the relationships & financial backgrounds of “some” members of the Scottish judiciary say it is in the interests of transparency & justice that judges to submit to a register of hospitality & pecuniary interests due to the power & effect their actions & judgements in court have over billions of pounds, legislation as passed by our elected representatives & the public at large.

In an age where it is now unthinkable for elected politicians and anyone in a public office to avoid registering their outside interests or hospitality received, members of the judiciary who in some cases earn £200K plus a year from the public purse are allowed to remain exempt from complying with any requirement to disclose their hospitality their financial interests, because the judges themselves decided it was not to be required of them to do so. However, in an age where transparency must be brought to all those funded by the public purse, there are growing calls for this to change and for judges who are ultimately paid by taxpayers, to fall into line with everyone else bankrolled by the public purse.

Naturally, anyone receiving such a large salary along with expenses and considerable power & influence to their name, in this case, all starting life from the public purse in the name of upholding justice, looks for safe, sometimes discreet, or even ‘out-of-reach-of-the-taxman’ havens to invest some of their ‘well earned’ crust for sitting in judgement over the rest of us.

From enquiries carried out by a group of court users investigating hospitality & the financial interests of members of the judiciary who quietly exert their considerable influence within ‘little talked about circles’, the investments of some of those on the bench (not just in Scotland) appear to follow a wide and not always expected, range of destinations, ranging from finance companies, insurance companies & their syndicates, care homes (including one accused of abusing its patients), gambling, private schools, & so on, while some others hold burgeoning property portfolios ranging from the expensive to houses on former Council estates, financial relationships with letting agents & housing associations, and even offshore investments along with somewhat dubious trusts managed by equally dubious Scottish law firms operating abroad, the details of which would easily drag down politicians in lurid headlines in the national press, and this is without even mentioning alleged investments in massage parlours, sex saunas & ‘themed dating agencies’ in Thailand.

A legal insider who has been studying some of the preliminary research on ‘judicial investments’ said it was only a matter of time before judges will be forced to declare their financial interests, hospitality and details of who they associate with, to ensure there is public confidence in an open & transparent judiciary.

He said : “The problem here is you have judges making their own rules. Its no use allowing judges to decide for themselves what they should or shouldn’t declare. In any profession such a power is a recipe for corruption, just as we saw during the expenses scandal at Westminster, where politicians were caught out stealing from the taxpayer and some were sent to jail.”

He continued : “In the case of judges, rather than the issue being a case of theft of public funds via expenses although of course it cannot be discounted, there may be conflicts of interests in terms of a judge’s investments, relationships, meetings etc which must be disclosed in the public interest otherwise you will end up with a situation where a judge has a vested interest in a case before him and says nothing. I’m sure its happened before given the numbers of cases in the courts.

It has been pointed out to Diary of Injustice some members of Scotland’s judiciary have relationships & links with law firms which secretly wined & dined the Scottish Government & its officials. The same law firms then went onto win contracts worth tens of millions of pounds with the Scottish Government, investigated by Diary of Injustice & reported in an earlier article here : HOSPITALITY WINS : Law firms who won £20 Million legal contract wined, dined & lobbied Scottish Government’s Legal Directorate for three years

A senior solicitor speaking to Diary of Injustice yesterday agreed there is a need for full disclosure in the judiciary and indicated the issue was under advanced discussion in other countries. He said : “The subject of a judicial register of interests is being discussed in other jurisdictions such as New Zealand, and I feel we should move with the times in Scotland to require the judiciary to do the same.”

In New Zealand, there is Member’s Bill in the New Zealand Parliament, introduced in late 2010 by Dr Kennedy Graham of the Green Party to introduce a Pecuniary Register of Interests for all judges, after a scandal involving the resignation of Justice Bill Wilson rocked the New Zealand legal establishment and brought into question the interests & relationships between judges & others.

Justice Wilson was forced to resign after it was reported he had failed to step down in a case or disclose his business and financial relationships with Auckland QC Alan Galbraith when sitting as a member of the Court of Appeal in an appeal in which Mr Galbraith successfully represented the Wool Board Disestablishment Company in their appeal against superfine wool producers Saxmere over wool board levies. There were allegations that Justice Wilson owed Mr Galbraith $242,804, which was not disclosed to the Court of Appeal hearing. The debt was denied by Justice Wilson. More on the scandal can be read HERE, HERE & HERE.

There are concerns similar relationships between members of the judiciary and law firms, lawyers & advocates may well exist in Scotland and may have had an effect particularly on some cases where members of the legal profession and even the Law Society of Scotland itself has faced legal action in the courts.

The full details of which can be viewed online here Register of Pecuniary Interests of Judges Bill. Dr Graham’s bill states :

It is a time-honoured principle of Western democracy that public servants of every kind must be beyond reproach, and suspicion thereof. Public confidence in the standard of behaviour and conduct observed by leading servants of the people is a cornerstone of social harmony and political stability. A threshold of confidence to that end should ideally be enshrined in constitutional and legislative form. Little scope should be available for individual discretion or subjective perception.

The principle of transparency in this respect pertains in particular to issues of financial (pecuniary) interest. Nothing undermines public confidence in a nation’s institutions and procedures more than suspicion that a public servant may have, and especially proof that one has, suffered a conflict of interest arising from a pecuniary interest in a particular dealing in which he or she was professionally involved.

The correct balance in this respect appears to have been achieved over the years–the public interest in such annual statements is significant without appearing prurient, and few complaints have been voiced by those on whom the obligations are placed. There seems to be a general acceptance that such exercises are in the public interest and are neither unduly onerous nor revealing.

No such practice, however, has been observed in the case of the judiciary. Recent developments within New Zealand’s judicial conduct processes suggest that application of the same practice observed by the other two branches of government might assist in the protection of the judiciary in future.

Being obliged under law to declare pecuniary interests that might be relevant to the conduct of a future case in which one is involved would relieve a judge from a repetitive weight of responsibility to make discretionary judgements about his or her personal affairs as each case arises. Having declared one’s pecuniary interests once, in a generic manner independent of any particular trial, a judge may freely proceed in the knowledge that, if he or she is appointed to adjudicate, public confidence for participation has already been met. Yet care is to be exercised to ensure that the final decision is left to the individual judge whether to accept a case. There should be no intention of external interference into the self-regulation of the judiciary by the judiciary.

This is the reasoning behind this draft legislation–the Register of Pecuniary Interests of Judges Bill. The purpose of the Bill, as stated, is to promote the due administration of justice by requiring judges to make returns of pecuniary interests to provide greater transparency within the judicial system, and to avoid any conflict of interest in the judicial role.

Additionally, in the New Zealand lawyer online, it was reported New Zealand’s Law Commission discussed the possibility the planned register of interests should be expanded to include all judicial officials who could affect a case, saying in Chapter 8.25 of their discussion paper. The Law Commission stated : “If there is to be legislation, should it apply to all judges, or only to judges of some levels, or to all judicial employees and officials such as prosecutors and registrars? An argument can be made that if there is to be financial disclosure it should be required of all officials whose positions give them sufficient potential to influence the outcome of a case, whether as a result of a bribe or other improper influence.” The New Zealand Law Commission’s discussion paper on a register of judicial interests can be downloaded here : NZLC IP21 – Towards a New Courts Act: A Register of Judges’ pecuniary interests? (pdf)

In Scotland, the situation is the exact opposite of moves in New Zealand to clean up its judiciary by requiring a register of interests. Lord Hamilton, speaking on ‘corruption in the judiciary’ claimed such issues “are virtually unknown in this jurisdiction”.

Lord Hamilton judicialLord Hamilton, Scotland’s Lord President. Lord President Lord Hamilton said in his statement : “While attempts to corrupt the judiciary are virtually unknown in this jurisdiction, a judge should be circumspect in the acceptance of any gift, hospitality, or favour from any private source. Where the benefit sought to be conferred upon the judge is not commensurate with an existing family or social relationship between him or her and the donor, or host, it should normally be declined. However, it is recognised that a judge may, from time to time, legitimately be entertained by legal, professional or public organisations or office-holders, in furtherance of good relations between them and the judiciary as a whole, or representatives of it. Furthermore, nothing said here should be understood as inhibiting judges from accepting invitations to give lectures, addresses, or speeches of a non-legal nature at dinners, or other occasions, or, in such an event, from accepting commensurate hospitality, tokens of appreciation for their efforts, or appropriate expenses of travel or accommodation.”

Lord Hamilton’s statement continues : “It is considered appropriate that a judge may write, lecture, teach and participate in activities concerning the law, the legal system, the administration of justice and related matters. However, to obviate the perception that judicial office is being exploited for personal gain, a judge holding a full-time appointment should not generally receive any remuneration for such activities, with the traditional exception of fees and royalties as an author or editor, although the acceptance of a modest gift in recognition of a service given would be unexceptionable. Where a judge is offered a substantial fee for the activities described, such fee should go directly to charity. There is, of course, no objection to a judge accepting reasonable reimbursement of the cost of any necessary travel or accommodation required in attending lectures, seminars, etc. In the event of a judge engaging in literary, or other creative or artistic activities, there can be no objection to that judge receiving the normal royalties, fees, or other payments in respect of the results of those activities.”

Sheriff Lothian scan 2Lacking the fear of being caught : Senior members of the judiciary & Crown Office knew of hooker sheriff sauna scandal for some time yet chose not to act. Rumours are another is around the corner. However, in spite of Lord Hamilton has said, it appears some members of Scotland’s judiciary are not very interested in excusing themselves from cases where their personal relationships, hospitality received, or professional gain may affect the outcomes of cases, nor are some members too bothered about who they associate with in private, where unpublished meetings include dates with dodgy businessmen, crime gang members, prostitutes from massage parlours & saunas (a scandal with forced one sheriff to resign, pictured), dodgy lawyers accused of fraud (who happen to escape prosecution), convicted sex offenders, and associations & meetings with lawyers who are known to act for tax dodgers in the Cayman Islands & other offshore tax havens. There are even cases of some members of Scotland’s judiciary using relationships with Police Officers to further their own professional interests outside of their judicial role, and also in some cases, members of the judiciary have used Police Officers to harass opponents of their private law firm’s high profile clients anxious their double lives are kept from the media & public’s prying eyes.

Clearly just as with solicitors escaping investigation into legal aid payments and fraud prosecutions courtesy of Mr MacAskill, there are also problems in Scotland’s judiciary where it appears regulation, or the fear of being caught out, is not strong enough to prevent some of its members abusing their positions either inside the court or outside. While the integrity of many of Scotland’s judges is not in question, a register of interests and more effective regulation must be applied, if Scots are to have any confidence in, or chance of a fair hearing where vested professional & personal interests may regularly collide with the public’s right of access to justice and a fair hearing in the Scottish courts.

However, it may come as no surprise to readers to learn Scotland’s judiciary are not alone in failing to keep a register of interests. The same is true for the judiciary of England & Wales, right up to judges at the UK’s Supreme Court, who maintain they do not require to keep a register of interests, yet as members of the House of Lords prior to the setting up of the Supreme Court, Law Lords did provide details in the House of Lords register of interests.

The UK Supreme Court’s stance on a register of interests is broadly the same as Scotland in that one is not required because the judges themselves have decided they need not declare their interests. The Supreme Court’s statement on a register of interests appears in an online document stating :

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

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

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

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

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

It is in the public interest and the interests of justice that our judges be required by law to join all others in public office, paid for by the public purse, to register their interests and any hospitality received. This is clearly in the interests of transparency, accountability and can only serve to reassure court users that they can expect fair & equal treatment – something we should all be entitled to as of right.

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