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Calls for Justice Secretary to get tough with anti-transparency judges as Judicial Investigator reveals weak-by-design scrutiny fails to protect public from errant judges

16 Dec

Annual report of Judicial Investigator calls for Scottish Govt action, raises concerns of judicial transparency. MOI ALI, Scotland’s first ever Judicial Complaints Reviewer (JCR) has today published a damning report on how the judiciary deal with complaints made by members of the public against Scottish judges. In her second annual report, Moi Ali details case histories, problems with confusing rules, and raises a series of significant concerns over the lack of scrutiny & transparency in the judiciary.

Ms Ali has spoken in the media at length regarding her annual report, calling on the Scottish Government to raise the level of scrutiny of the judiciary and give the JCR extra powers which already exist in England & Wales.

JCR admits office lacks much needed powers – Report. The Judicial Complaints Reviewer’s 2012-2013 annual report is published today on the JCR’s website, available here or can be viewed online via DOI here. Among many issues of concern raised in the JCR’s annual report are instances where the Judicial Office has refused to share files and paperwork in relation to complaints made against judges and how were handled.

The report also makes reference to refusals by Lord President Lord Brian Gill to hand over information to the JCR, claiming Moi Ali’s office is a “Third Party” and that data cannot be shared with her office for reasons of confidentiality. while in England & Wales, the same information is published online.

It also emerged that even though a Memorandum of Understanding was signed between the JCR & Judicial Office earlier this year on respective roles, responsibilities and agreed undertakings, the situation regarding the contents of files has not been resolved to Ms Ali’s satisfaction.

JCR publishes consultation on rules. Additionally, and of equal importance, the Judicial Complaints Reviewer has also published a highly critical and detailed consultation response to the Lord President on proposals to revise rules on complaints against the judiciary. The consultation document can be viewed online via DOI here : Judicial Complaints Reviewer Responses re Rules consultation public document. Moi Ali has recommended significant changes to rules on judicial complaints, clarity of procedures and also the amending of rules to allow complaints to be made about the Lord President, something which currently cannot be done.

The Sunday Mail newspaper reported this weekend on issues raised in the JCR’s second annual report, including calls from Moi Ali for the Scottish Government to act over the lack of scrutiny and transparency in Scotland’s judiciary.

Justice secretary Kenny MacAskill urged to improve scrutiny of Scotland’s judges after claims they stifle public complaints

We, Scotland’s judges, stand accused of making the process of complaining about us impossibly difficult. You, our toothless watchdog, have been deliberating. So, have you reached a verdict? YOU’RE GUILTY, M’LUDS

MOI ALI, the country’s first ever Judicial Complaints Reviewer, says she is currently powerless to do more to help the public understand the complex legal complaints system.

News Special : By Russell Findlay Sunday Mail 15 Dec 2013

KENNY MacASKILL has been urged to get tough with Scotland’s judges after a watchdog warned they are stifling complaints and dodging scrutiny.

Moi Ali was appointed by the SNP’s Justice Secretary as the country’s first ever Judicial Complaints Reviewer but, before delivering her second annual report tomorrow, she voiced fears that her role is mere “window dressing” and needs more teeth if it is to hold judges to account.

Ali says people find it virtually impossible to understand confusing rules about how to complain about judges, sheriffs and JPs. She said: “They are legal rules, written by lawyers for other lawyers to use. To me, the perspective is completely wrong. You write the rules for the public, not for lawyers.”

She believes that former solicitor MacAskill must bring in new laws to end judicial self-regulation.

Ali, who also sits on the Scottish Police Authority board said: “I think fundamentally the problem is the legislation. “The way it’s created, it’s about self- regulation so you have judges judging judges’ conduct. There isn’t really an independent element.“I’m presented as the independent element but, without the powers, I can’t be independent. We have the appearance of independent oversight but not the reality.”

Ali’s post was created by the Scottish Government in the face of fierce opposition from judges. With a £2000 annual budget, no staff and no office, she has been forced to work for free in addition to the three days per month for which she is paid.

She said: “There was a genuine recognition that something needed to be done. “But I think with any professional group, whether it’s the judiciary or any other powerful group of people, it’s quite difficult to take them on. “And I think that appearing to do something when actually, perhaps, doing the bare minimum is an easier way of addressing it. It’s a bit like being in a straitjacket.”

Ali has caused consternation in government and judicial circles by publicly admitting she is powerless. All she can do is review how complaints are handled by the Judicial Office for Scotland, which is headed by top judge Lord President Lord Gill.

She said: “I’m sorry to say that I do think there was an element of window dressing. “The system is about investigating complaints about the judiciary but that whole system is run by the judiciary. “Without any proper, external, genuinely independent oversight, you’re not going to have public faith and confidence. “I know people will be very unhappy with me using the term window dressing but I think there is an element of that.”

Scotland’s system trails behind England and Wales, who have an Office for Judicial Complaints.

In addition, there is a powerful independent ombudsman who can overturn decisions, order reinvestigations and compensate victims.

Ali said: “England and Wales started doing this, and a whole lot more, in 2006. “We’re not even where they were at when they started so we’ve got an awful lot of catching up to do. “The fact we have a JCR and not an ombudsman, to me, says it all.”

Some senior figures within the judicial system privately dismiss Ali as an “outsider” and unqualified to comment.

She has also angered judges by backing a Holyrood petition by legal reform campaigner Peter Cherbi calling for a register of interests for judges.

Lord Gill sparked cross-party anger by twice rejecting a plea by Holyrood to give evidence to the committee. He said the Scotland Act allowed him to avoid parliamentary scrutiny as it ensures judicial independence from political meddling.

But critics said that the Act is to protect judges from being quizzed over courtroom decisions not administration issues.

Ali said: “I think it’s a confusion between independence and accountability. I really do think it’s as basic as that. The dividing line is completely clear.”

Ali has led by example by voluntarily publishing her own register of interests, even though it took six months to get it on the JCR website. Her annual report details 20 alleged breaches of the complaints rules by the Judicial Office.

She has also scored two victories for the public since taking the three-year post.

One is that Lord Gill has now agreed to supply people with some details about the outcome of

their complaint. And he has also agreed to inform the JCR about the outcome of cases which she refers to him.

She said: “I’ve made some small differences but it’s progress. “But really it’s difficult to make an impact within the constraints that I’m in at the moment.”

MacAskill has already dismissed calls to tackle the powerful judiciary with new laws but Ali wants him to think again.

She said: “In the past few years in Scotland, there have been some really good things being done in all sorts of different sectors. “I don’t understand why this appears to be the one sector that is really behind. “I don’t think there’s an appetite for looking at the legislation again. “I think it will have to be looked at again at some point because, at the moment, Scots citizens have a lot less protection than they do in England and Wales. “If I was asked to create something to deal fairly, effectively, efficiently and transparently with complaints about the judiciary, I would not invent this.”

The Judicial Office for Scotland: “The review of the existing complaints rules ends tomorrow. “The responses will then be considered in full by the Lord President.”

JUDGES IN DOCK

Probed after bawling out a dog walker

A judge was accused of a “tyrannical rant” at a woman walking her dog.

The dog walker was left “shaking with nerves” and felt “very intimidated” by the unnamed judge, who told her to put her pet on a lead.

Her complaint was dismissed as being “without substance” by the Judicial Office for Scotland because he was not acting as a judge at the time.

But the Judicial Office’s own guidelines state that complaints can be made about judges’ conduct inside and outside court.

The dog walker said ; “The point is that he is a judge and. as such, may be expected to adhere to a certain standard of personal conduct and behaviour to all members of the public.”

Ali agreed and upheld the complaint that the Judicial Office had breached their own rules.

Accused of insensitivity over disability.

A disabled woman complained about a judge who, she claimed, ignored her medical condition.

The woman said that the judge did not consider her “mental and physical disabilities and current aggressive medical treatment”.

The Judicial Office kicked out the complaint because it was “primarily about judicial decisions”.

But Ali found that the Judicial Office rules were breached because the complaint also related to the judge’s conduct so should have been investigated.

She also said that “further investigation” would be needed to establish if the judge had been insensitive.

However, Lord Gill disagreed with Ali’s opinion.

IF I AM NOT SURE WHAT THIS LEGALESE MEANS

Watchdog Moi Ali slates the legal jargon which is used to deter ordinary Scots from complaining about judges.

She fears the complex Judicial Office for Scotland rules are not fit for purpose.

She said ; “If you have a set of rules that you can pick up and not understand, then they can’t be fit for purpose.

And the public don’t understand. They are not written in any understandable way.

I don’t understand the purpose of some of the rules and some of them are cross-referenced with Acts of Parliament.”

Ali has submitted a damning 25 page report to Scotland’s top judge, Lord President Lord Gill, who is reviewing the rules.

In it, she says : “One of my principal concerns relates to the style and tone of the rules and the way in which they have been constructed, giving an impression that they are devised to deter people from complaining, to find reasons to reject a complaint at the earliest opportunity and to over-protect the judiciary.”

She cites numerous examples of archaic language which many people would struggle to understand.

For example, Section 5.4.b states : “If sent by electronic means indicated to be acceptable a document is to be treated as valid only if it is capable of being used for subsequent reference.”

Ali has urged Lord Gill to bring in new rules which will be “fair, proportionate, transparent and easy to understand.”

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