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M’Lud’s Interests: What Scotland’s top judge did not tell Holyrood MSPs when he refused to give evidence on register of judicial interests

27 Jan

Lord Gill omitted to tell MSPs he declares some interests with ease. REFUSING at least two invitations to appear before a Scottish Parliament Committee, using deficiencies in the Scotland Act to avoid facing MSPs questions on a PUBLIC PETITION, and then going on to brand the media, litigants, court users & members of the public as “aggressive” & “hostile” in an attempt to thwart calls for judges to declare their interests, it can now be revealed Scotland’s top judge Lord President Lord Brian Gill has omitted to tell MSPs he IS actually required to declare at least some interests as the head of the board which controls Scotland’s courts.

The declarations of interest by Scotland’s top judge and only six other members of Scotland’s vast, sprawling ranks of a multi million pound well salaried & well pensioned judiciary, feature in the 2012-2013 Annual Report of the Scottish Court Service, a fact which Lord Gill has strangely omitted to tell MSPs in three ‘stonewalling’ letters the Lord President sent to the Scottish Parliament.

And, contrary to the written claims of Lord Gill that it would be unworkable for the judiciary to declare their interests, and that the very notion of having judges declare their interests may breach judges privacy, cause them undue suffering and bring the courts to a complete standstill, the seven members of the judiciary who sit on the all powerful board of the Scottish Court Service, seem not to have suffered at all by interests they have wished to declare in keeping with their positions on the SCS board.

Pages from the SCS Annual Report handed to MSPs show a handful of judges including Lord Gill do declare at least some of their interests:

Lord President – Rt. Hon. Lord Gill •  Director of Scottish Redundant Churches Trust, a company limited by guarantee registered in Scotland (SC162884) •  Director of the Royal School of Church Music, a company limited by guarantee registered in England (Reg’d No 250031) •  Trustee of the Carmont Settlement: a trust for the support of retired priests of the Roman Catholic Church •  Trustee of the Columba Trust: a trust for the benefit of the Roman Catholic Church in Scotland •  Trustee of the Royal Conservatoire of Scotland Endowment Trust: a trust for the benefit of RCS and its students •  Trustee of the Royal Conservatoire Trust: a trust for the benefit of the RCS and its students •  Trustee of the Royal School of Church Music: a registered charity for the promotion of church music in the Christian Churches (Reg No 312828) •  Vice President of the Royal Conservatoire

Lord Justice Clerk – Rt Hon Lord Carloway • None

Hon Lord Bannatyne •  Chester Street (Limited Partner) Ltd on behalf of the Board of the Cathedral Church of St Mary the Virgin, Palmerston Place, Edinburgh •  Member of the Board of the Cathedral Church of St Mary the Virgin, Palmerston Place, Edinburgh •  Shareholder as Trustee for the Cathedral Church of St Mary the Virgin, Palmerston Place, Edinburgh, in Chester Street (General Partner) Ltd •  Member of the Clergy Disciplinary Tribunal of the Episcopal Church

Sheriff Principal Alastair Dunlop QC •  Commissioner of Northern Lighthouses •  Trustee of St John’s Kirk of Perth Trust •  Member of Stirling University Conference  •  Chair of local Criminal Justice Boards in Tayside Central and Fife •  Elder of Gorebridge Parish Church of Scotland •  Member of Royal Northern & Clyde Yacht Club •  Member of the New Club, Edinburgh

Sheriff Iona McDonald •  Deputy Lieutenant for Ayrshire and Arran •  Partner in property rental firm

Sheriff A Grant McCulloch •  Chair West Fife Education Trust •  Chair Relationship Scotland- Couple Counseling Fife •  Committee Member Cammo Residents Association

Johan Findlay OBE • Honorary Sheriff• Justice of the Peace

A further six people ranging from the Chief Executive of the Scottish Court Service to lawyers and others also sit on the SCS Board, apparently declaring their own interests with ease and none of the fuss which Scotland’s top judge insisted would bring the justice system to a stand still.

The declarations, required for the positions on the Scottish Court Service Board, appear to fly in the face of a series of excuses, complaints, accusations and veiled threats made by the Lord President in writing against the idea of creating a publicly available register of judicial interests, and raise questions over how Lord Gill has handed the judiciary’s battle against what is a simple call for transparency, itself supported by the Judicial Complaints Reviewer.

The Judicial Complaints Reviewer recently gave testimony to MSPs at Holyrood on the benefits of a register of judicial interests, reported along with video footage of the testimony, here : As Scotland’s top judge battles on against transparency, Judicial Complaints Reviewer tells MSPs judges should register their interests like others in public life

Any publicly available register of judicial interests which could be created from the aims of the petition, would take in the entire judiciary and have to show criminal convictions,professional & other relationships, undeclared earnings and business links to law firms, investments, property and memberships of organisations and other information which commonly appears on registers of interest throughout the public sector.

It also came to light some of Scotland’s judges have not declared their interests or recused themselves in court, contrary to claims made by the Lord President, and that persons wrongfully convicted have suffered even greater injustice when it was revealed that judges who once prosecuted them, had heard their appeals against wrongful convictions and kept quiet.

A report on how the failure of judges to recuse themselves or declare their interests in cases which have led to miscarriages of justice features here: Failure to Recuse : Evidence handed to MSPs in judicial register of interests proposal reveals judges who blocked injustice appeal failed to declare interests in court

HOW TOP JUDGE PROTESTED AGAINST TRANSPARENCY REGISTER:

Lord Gill’s first letter to MSPs voiced vociferous opposition to transparency. In Lord Gill’s opening letter to MSPs on the call for a register of judicial interests, the judge claimed “In practical terms it would be impossible for all judicial office holders to identify all the interests that could conceivably arise in any future case. The terms of the Judicial Oath and the Statement of Principles of Judicial Ethics ensure that such a difficulty does not arise and that the onus is on the judicial office holder to declare any interest at the outset.”

In what was surely a hint of the sheer hostility felt by the judiciary against a call to bring transparency to judges interests, Lord Gill went onto accuse the media, press, litigants, court users and just about everyone else with an interest in transparency of being potentially hostile and aggressive, simply because someone may wish to raise questions of judges interests similar to the same kinds of questions which are raised of interests in other public officials and those in public life, politics & government.

Clearly angered by the call for transparency, Lord Gill’s letter to MSPs stated: “The introduction of 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. It is possible that the information held on such a register could be abused. These are significant concerns. If publicly criticised or attacked, the judicial office holder cannot publicly defend himself or herself, unlike a politician. The establishment of such a register therefore may have the unintended consequence of eroding public confidence in the Judiciary. It also raises the question whether such a measure would have an adverse impact on the recruitment and retention of the Judiciary.”

Top judge Lord Gill refused to go to Holyrood, by letter. In a second reply to the Convener of the PPC, dated 2 April 2013, Lord Gill refused an invitation to attend the Scottish Parliament and face questions from Committee members on issues raised in the petition and to explain his own opposition to the transparency proposal.

Notably, Gill’s second reply did not contain any answers to questions put to him in writing by the Petitions Committee, nor did the judge provide any statistical or analytical evidence on the numbers of recusals which have been undertaken by judges in Scotland’s courts. However, seeking once again to lobby MSPs against any call for transparency of judges interests, the Lord President again referred to the content of an EU report, itself written by judges, who claimed there was no need for a register of judicial interests.

A further invitation was sent to Lord Gill by the Convener of the Public Petitions Committee, asking for answers to questions and again inviting the Lord President to addend the Scottish Parliament to give evidence on Petition PE1458: Register of Interests for members of Scotland’s judiciary

Third letter from top judge refused Holyrood invitation, used Scotland Act loophole. Having received the third letter containing a second invitation to attend Holyrood, Lord Gill wrote back to the Convener of the Public Petitions Committee on the 28 May 2013, again refusing to appear before MSPs to face questions on judges interests and his own opposition to the petition.

However, this time the top judge added a hint that judicial cooperation with Committees of the Scottish Parliament may suffer and must be limited.

In what appears to have been little short of a veiled threat to refuse further judicial cooperation with, and future Committee appearances at the Scottish Parliament, Gill stated: “Judges have from time to time given evidence to committees of the Scottish Parliament on matters that affect the administration of justice in Scotland. I hope that that has been helpful in the legislative process. Judicial participation in the work of the committees must however be kept within prudent limits.”

And, shockingly, Lord Gill then sought to use deficiencies in the Scotland Act to justify his refusal to attend the Public Petitions Committee and answer question from msps.

Gill’s use of Scotland Act against MSPs was reported in the media. Writing in his third letter, Lord Gill said: “Section 23(7) of the Scotland Act provides inter alia that the Parliament may not require a judge to attend its proceedings for the purposes of giving evidence. This is not a loophole. It is a necessary part of the constitutional settlement by which the Parliament is established. Its purpose is to protect the independence of the judiciary, a vital constitutional principle that is declared in section 1 of the Judiciary and Courts (Scotland) Act 2008”

The judge continued: “When a committee invites a judge to give evidence before it, I have to decide whether the subject matter might infringe the principle of judicial independence; and whether the evidence required could be satisfactorily given in writing.”

So far, Lord Gill has failed to appear before the Public Petitions Committee of the Scottish Parliament to explain his deep seated opposition to the transparency issue of declarations made by members of the judiciary in court or answer questions from MSPs on the proposal to create a register of judicial interests.

Previous articles on the lack of transparency within Scotland’s judiciary, investigations by Diary of Injustice including reports from the Sunday Mail newspaper, 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

Petition PE1458: Register of Interests for members of Scotland’s judiciary is due to be heard again at the Scottish Parliament tomorrow, Tuesday 28th January 2014 and will include a report or comment on a private meeting held last Tuesday between the Convener and Deputy Convener of the Public Petitions Committee and Scotland’s top judge Lord Brian Gill.

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