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If the judge has nothing to hide, the judge has nothing to fear: Transparency of interests must apply to all in court, including the wealthy, vested interests of the judiciary

19 Mar

Judges are not accountable without a register of judicial interests. IN the wake of the latest revelations of a further two Scottish judges dodging criminal prosecutions in front of their own colleagues and in their own courts, this time for serious motoring offences, there are growing calls for a much wider scope of judges background, character & now records of criminal activity to be added to a proposal for a judicial interests register being considered by the Scottish Parliament’s Petitions Committee: Petition PE1458: Register of Interests for members of Scotland’s judiciary.

And, while Scotland’s top judge, the Lord President Lord Brian Gill and his judicial colleagues appear to be more concerned with how accountable they are to each other, rather than how accountable they are to the public, the fact is that without a fully transparent and public register of their interests, Scotland’s judiciary are effectively a law unto themselves who can have little claim to public trust or public confidence in their judgements.

If the Lord President has such confidence in his judicial colleagues that they have nothing to hide, then he has nothing to fear.

However when Scotland’s judiciary from the top man down takes a position of such powerful opposition against transparency of judges financial & other interests, and then dares to effectively threaten Scotland’s sovereign Parliament with loopholes within the very act of law in the Scotland Act which founded our current Parliament, there is very much something to hide, Lord Gill.

Petition PE1458 calls for a published register of interests documenting full disclosure of judges sizeable financial wealth, hidden family & business connections within the legal profession and controversial topics such as directorships, secret earnings from law firms & big business, criminal records of judges, and offshore ‘tax efficient’ trusts and investments which currently remain secret.

Those who are following the debate on Petition PE1458 will be well aware of support for the petition from Moi Ali, Scotland’s first ever Judicial Complaints Reviewer (JCR).

In a recent letter to the Petitions Committee, the JCR revealed Lord Gill had made some concessions on changes to the way in which complaints are dealt with my his own office.

Lord Gill will now provide the Judicial Complaints Reviewer with information on the ultimate outcome of complaints referrals made by the JCR to the Lord President’s office. And, complainers will now be provided with at least a summary of the investigation report into their complaint, where previously no further information was given out to complainers about what happened to their complaint.

The JCR also revealed to MSPs that, contrary to the Justice Secretary’s comments regarding the status of the Scottish Legal Complaints Commission in providing office space for the Judicial Complaints Reviewer, the SLCC did not believe that they should provide the JCR with any administrative support, given the fact the SLCC is paid for by lawyers (who recoup their subscriptions from hiking client fees).

The full text of the letter to the Public Petitions Committee from JCR Moi Ali is reprinted below:

Judicial Complaints Reviewer wrote to msps expressing view on recusals only data. In a letter to the Petitions Committee, Moi Ali, Scotland’s Judicial Complaints Reviewer said the Lord President’s proposal was “of limited value” The Judicial Complaints Reviewer told MSPs:

Consideration of Petition PE1458

On 9th October 2013 I followed up my evidence to the Petitions Committee with some additional information. I am now in a position to provide a further update which the committee may find helpful in advance of its deliberations this coming Tuesday.

When I wrote in October, it was to inform the Committee that the Lord President had confirmed that he would not be willing to provide me with information on the ultimate outcome of my referrals to him. I am pleased to report that he has since indicated that he recognises that it is helpful for me to be advised of the result of my referrals and that this will now happen. I very much welcome this development.

Another positive development is that the Lord President has agreed to my suggestion that complainers should, as a minimum, be provided with at least a summary of the investigation report into their complaint; previously they received no indication of what investigation had been carried out.

I am also pleased to see that the Lord President intends to publish information on recusals. While this is a step in the right direction towards greater transparency and accountability within the judiciary, regrettably it does not go far enough to address the concerns that complainers raise when they contact me.

As I understand it, the Lord President’s proposal is simply to publish recusal information, but what about the occasions where a judicial office holder is unwilling to recuse despite being challenged to do so? Will such cases be reported upon publicly?

Since I gave my evidence to the committee last year, I have reviewed further cases in which conflicts of interest have been at the heart of the complaint. The recusal information the Lord President intends to publish will not help in situations where an alleged conflict of interest only comes to light after a court case is heard. The publication of a register of interest could actually avert the need for such complaints by enabling participants in a court case to challenge perceived conflicts of interest in advance or at the time, rather than after the case is heard. Without the publication of a register of interests, the publication of recusal data, while welcome, is of limited value.

If the issue were solely one of providing public access to recusal data, the Lord President’s proposals would be of value. However, the issue from my perspective –as the only individual in Scotland who deals with judicial complaints reviews –is that the concern raised by complainers is failure to recuse; they do not complain about a dearth of recusal data.

It might be helpful if I outlined a typical scenario to help you see how the publication of recusal data alone will fail to address the concerns that those using my service report. Let us say that a defendant appears in court and the case is heard. Later the defendant discovers a potential conflict of interest and makes a complaint about the judge’s conduct. In my experience it is likely that the complaint will be dismissed as being about ‘judicial decision’(a decision that it is for a judge to make). Even if it proceeds to investigation –and most cases that reach me do not get this far –that investigation will be undertaken by a fellow judge. Should the complainer ask me to undertake a review, my hands are tied because all I can do is check that the complaints handling rules were followed. The rules say that a judge can investigate a complaint in whatever way they wish, so there are severely limited grounds on which I can challenge an investigation. Even if I believe that the wrong decision was reached, I cannot overturn that decision or even ask for it to be reinvestigated. Were there to be a register of judicial interests, individuals would be armed with the information to seek a judge’s recusal if necessary, and would not be left having to deal with the matter after the event using the complaints system. This would be in everyone’s interests.

I hope that you find the above helpful in your deliberations.

I also wanted to take the opportunity to respond to the Cabinet Secretary for Justice’s letter of 31st October 2013 to the Petitions Committee in respect of the comment that “Premises within the Scottish Legal Complaints Commission’s offices were secured for the JCR to allow her access to all workplace essentials and some administrative staff support. However, Ms Ali elected to work from home.”

The situation is that I arranged to use a shared ‘hot desk’ at the SLCC, but this was unsuitable as I did not know whether it would be available when I needed it and it was difficult to move files and equipment between my home and the SLCC. The SLCC do not believe that they should provide me with any administrative support, as their service is paid for by the legal profession and not the public purse.

You may know that I will not be seeking reappointment when my term of office ends in August. However, I am happy to provide any further information that the committee requires until that time.

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

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