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THE LORD’S RULES: Top judge’s two year consultation & tweaks to rules allowing judges to investigate themselves is ‘missed opportunity’ says former Judicial Complaints Reviewer

09 Apr

Lord Gill’s new rules more like old – says former JCR. A TWO YEAR consultation held by Scotland’s top judge Lord President Lord Brian Gill on proposed updates to rules governing complaints about judges has been criticised by Scotland’s first Judicial Complaints Reviewer (JCR) as an “opportunity missed”.

Moi Ali – who stood down from the post of JCR last year after telling msps her role to review judicial complaints was “window dressing”, said: “The Lord Presidents’ consultation ended in 2013 and I am surprised that it has taken until now to come up with what appear to be largely the same rules, albeit with a few small tweaks.”

The proposed rules on judicial complaints, published by the Judiciary of Scotland only last week – coming two weeks after an investigation revealed the lack of activity by Lord Gill on the promised changes to judicial rules – bring little comfort for those seeking transparency and accountability in Scotland’s judiciary.

Lord Gill (73) also sent a copy of the consultation and rules changes to members of the Scottish Parliament’s Public Petitions Committee – who are investigating calls to create a register of judicial interests as proposed in Petition PE1458: Register of Interests for members of Scotland’s judiciary.

The Judicial Office claim the new rules and guidance for complainers simplify and streamline the process for dealing with complaints and make clear the matters that can properly be investigated.

However, there is in fact little in the changes proposed by Gill which satisfy falls for increased transparency and accountability in the judiciary.

Consultation & rule changes feature in letter to MSPs scrutinising judicial interests register petition. The proposals – which took the top judge an incredible two years to consider – in between international trips & ‘diplomatic commitments’ – do not include the creation of a register of judicial interests – which court users & legal teams could use to require judges to recuse themselves from hearing a case – rather than as the rules prefer – complain about matters to a judge up to three months after the event took place.

While serving as Judicial Complaints Reviewer, Moi Ali launched her own consultation on judicial complaints procedures.

Commenting on the results of her own consultation, Moi Ali said: “I conducted a detailed consultation of my own when I was Judicial Complaints Reviewer, speaking with those who had used the complaints process. They deemed it unfit for purpose at that time.”

Ms Ali continued: “I am disappointed that the thrust of my response to the Lord President, based on that feedback from ordinary Scots, has not been incorporated. I asked for more user-friendly, plain English Rules, but this has not happened. I also hoped that a mindset that welcomed complaints and recognised the genuine value of encouraging complaints would have shaped the new Rules, but instead the inbuilt deterrent to complainers remains. The new Rules are an opportunity missed.”

Among the small changes to the rules announced by Lord Gill, is a proposal to publish details of those who make complaints about a judge – as well as revealing the identity of the judge involved in the complaint.

However, Gill’s idea to out members of the public in a bid to deter them from complaining about poor or dodgy judges may fall foul of data protection laws.

Speaking on the Lord President’s idea to publish, former JCR Moi Ali said: “I note that the Lord President has included a new Rule which allows the publication of complaints cases. If this is a bid to increase transparency and to bring Scotland into line with England and Wales, where details of upheld complaints  are published on the internet, then I welcome the move. However, I am concerned that the details of the complainer may also be published, as I fear that this may deter people from making legitimate complaints. Entirely innocent parties should have their confidentiality protected.”

The Judicial Office refused to make further comment on the small changes to the rules announced by Lord Gill.

At a date yet to be decided in May 2015, the Scottish Parliament’s Public Petitions Committee will consider the rule changes proposed by Lord Gill – who has so far refused three invitations to appear before msps to answer questions on his hostility to judicial transparency and the creation of a register of judicial interests.

Gillian Thompson – who took over from Moi Ali as Judicial Complaints Reviewer recently told msps she also supports the creation of a register of judicial interests – reported here: New Judicial Complaints Reviewer supports proposal to Scottish Parliament to create a register of interests for judges

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

JUDGES WHO WRITE THEIR OWN COMPLAINTS RULES:

How YOUR complaint against a judge ends up in a tangle of judicial gobbledygook. As head of the Scottish Judiciary, the Lord President is responsible for making and maintaining appropriate arrangements for investigating and determining matters concerning the conduct of judicial office holders. The Judiciary and Courts (Scotland) Act 2008 makes provision for the Lord President to make rules in connection with these matters.

The previous Lord President made the Complaints about the Judiciary (Scotland) Rules in 2011. After two years of administering the Rules, some administrative issues had been noted and it was agreed that a review of the Rules should be undertaken. The Judicial Office for Scotland (JOS), on behalf of the Lord President ran a consultation for 12 weeks in 2013. The consultation document sought views on several matters relating to proposals for revised Complaints about the Judiciary (Scotland) Rules and included draft rules.

The Judicial Office proposed rules on what can and cannot be investigated state: “We can only investigate complaints about a judge’s personal conduct. We cannot consider complaints about judicial decisions or the way a case has been managed. These matters can only be challenged by appeal. The definition of personal conduct covers a wide range of behaviour both in and outside of court. However, you should understand that on occasions a judge may have to be firm, direct or assertive in his or her management of a case. A complaint must be made within 3 months of the incident you wish to complain about.”

Listed among examples for complaints are: Use of racist, sexist or offensive language, Falling asleep in court, Misusing judicial status for personal gain or advantage, Conflict of interest.

Examples of what cannot be investigated include judges accused of criminal behaviour : A judgment, verdict or order, Sentencing decisions, What evidence should be, or has been considered, The award of costs and damages, Whose attendance is required at court,  Who should be allowed to participate in a hearing, Allegations of criminal activity (criminal allegations should be directed to the police)

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