Lord Carloway to face Holyrood on judicial transparency. SCOTLAND’S top judge has made an offer to appear before the Scottish Parliament’s Public Petitions Committee who are conducting a FIVE YEAR probe on proposals to create a register of judges’ interests as called for in Petition PE1458: Register of Interests for members of Scotland’s judiciary
Lord President Lord Carloway made the offer in a detailed letter offering some concessions to MSPs – which has now been published by the Scottish Parliament.
In his letter to MSPs, Lord Carloway said: “I indicated in previous correspondence that I felt I could add little more to the views previously expressed. That remains my view. However, if the Committee wishes me to provide this evidence orally, I will do so.”
Lord Carloway (real name Colin Sutherland) also claimed in his letter to MSPs – that the subject of “online fraud” should also be considered as a reason to keep judges links to big business and significant wealth away from public gaze.
However, MSPs have been reminded the subject of online fraud has proved no obstruction to the thousands of registers of interest already in operation across the public sector – from local councillors and workers on local government right up to the Prime Minister, politicians and even members of the security services.
And, while Lord Carloway remains bitterly opposed to full judicial transparency – which would see the creation of a register of judicial interests to match all other branches of Government and those in public life including MSPs – the top judge has given a further concession to the petition in a decision to expand the current “recusals register” – where judges step aside from cases due to a conflict of interest.
Writing to the Petitions Committee, Lord Carloway said: “I would have no difficulty with the proposition that the register of recusals could be extended to cover instances when a judge has recused himself, and when he has declined to do so. The additional burden, which will fall upon the clerks of court, should not be great, and I agree that this may provide additional transparency.”
The concession from the Lord President comes after growing calls from those who support the judicial transparency proposals to give full information to the public on why judges are asked to recuse themselves in cases where conflicts of interest arise in court.
Since 2014 – when the then Lord President Lord Brian Gill created the register of recusals in an attempt to head off demands by MSPs and the public to bring in the register of interests for judges, there have been over 70 recusals from members of Scotland’s judiciary in cases throughout Scotland.
The recusals have occurred on issues where conflicts of interest have arisen – such as membership of charities, relationships between judges and those appearing before them in court, and other ‘conflicts of interest’.
In one case during 2014, Lord President Lord Gill was forced to step aside from a court hearing after he realised his son – Advocate Brian Gill, represented one of the parties in a court action which the Judicial Office have refused to give any further detail on since the recusal took place in late June 2014.
However, a recent investigation by the media has revealed judges are refusing to recuse themselves in high profile cases in the Court of Session – where inks to the judiciary permeate right across the court room.
An investigation published by Diary of Injustice earlier this month revealed Court of Session judge Lord Malcolm heard a case eight times, where his own son Ewen Campbell had an interest as a representative and adviser to the defenders – construction company Advance Construction Ltd.
Investigations by journalists has revealed there is no written record of any recusal by Lord Malcolm (real name Colin Malcolm Campbell) – who only stood aside from considering the action well into the hearings after he ‘realised’ the involvement of his son in the case.
Lord Malcolm then handed the case over to Lord Woolman – who heard the proof in the case – which has now become the subject of increasing questions after material was handed to the media suggesting key parts of the evidence founded upon by Lord Woolman have no evidential basis.
In an unprecedented move, Lord Malcolm then returned to the case for an eighth hearing to hand over money which had been lodged by a third party as caution for an appeal.
It is thought this is the first incidence of a judge returning to a case he previously stood aside from, yet there are no details contained in the current register of recusals, even though the pursuer lodged an appeal against Lord Malcolm’s reappearance in the damages claim.
The move has been frowned upon by legal observers – many of whom agree a judge should not be allowed to sit on a case they have previously recused themselves from, and calls are now being made to the Lord President to establish such a rule in the code of Judicial ethics and conduct, ensuring similar events do not take place in the future.
And, in relation to media enquiries seeking an explanation for Lord Malcolm’s decision to return to the case, the Judicial Office have refused to give any details on why Lord Malcolm refused to consider his position as a recusal matter.
The high value civil damages claim – Donal Nolan v Advance Construction Ltd – initially heard in Hamilton Sheriff Court and then transferred to the Court of Session for a ‘speedy’ resolution – involved the dumping of 16,500 tons of contaminated waste by the defenders from a North Lanarkshire Council PPI project on the land of Donal Nolan – the well known & respected former National Hunt jockey & trainer.
At the time, the defenders solicitor – Ewen Campbell – worked for Glasgow based Levy & Mcrae – a law firm linked to Scotland’s judiciary and more recently named in a writ in relation to the £400million collapse of a Gibraltar based hedge fund – Heather Capital.
Papers now lodged at Holyrood reveal Ewen Campbell reported back to former Levy & Mcrae senior partner and suspended Sheriff Peter Watson on the day to day running of the case for Advance Construction Ltd.
Details of the shocking case – which has seen no less than seven additional judges hear motions and interlocutors, has now been made to MSPs studying the plans to create the register of interests – which would also require members of the judiciary to disclose their links to others in the legal profession, links to business and other information.
The proposal to bring greater transparency to Scotland’s judiciary – Petition PE1458: Register of Interests for members of Scotland’s judiciary – first debated at the Scottish Parliament’s Public Petitions Committee in January 2013 – calls for the creation of a publicly available register of judicial interests – containing information on judges’ backgrounds, figures relating to personal wealth, undeclared earnings, business & family connections inside & outside of the legal profession, membership of organisations, property and land, offshore investments, hospitality, details on recusals and other information routinely lodged in registers of interest across all walks of public life in the UK and around the world.
A full debate on the proposal to require judges to declare their interests was held at the Scottish Parliament on 9 October 2014 – ending in a motion calling on the Scottish Government to create a register of judicial interests. The motion was overwhelmingly supported by MSPs from all political parties.
Lord Carloway’s letter to the Public Petitions Committee is now published in full, here: Letter from Lord Carloway to Public Petitions Committee re Petition PE1458
I refer to your letter of 23 January. I have taken some time to review the evidence provided to the Committee by Professor Alan Paterson and to reconsider the position.
I note that you request a response on three specific issues, as follows:-
• First, whether there have been any inhibitions to the administration of justice arising in relation to those members of the judiciary who have to register financial or other interests in connection with other roles.
Scotland has a relatively small judiciary and only a very small proportion of those judges and sheriffs sit on bodies which require disclosure of financial interests. For example, only four- one senator, the Chair of the Scottish Land Court, one sheriff principal and one sheriff – sit on the Judicial Appointments Board, while seven judges – three Senators including myself, a sheriff principal, two sheriffs and a JP – sit on the Board of the SCTS. I am aware that my predecessor, Lord Gill, in his letter of 5 February 2013 noted that a register of judicial interests could have other consequences. He said:
“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.”
All senators and all sheriffs exercise a civil and criminal jurisdiction. I am concerned that, at a time when online fraud is becoming increasingly sophisticated, a dissatisfied litigant, or a convicted person, may choose to retaliate by these means. A register of judicial interests may provide a starting point for that. That has not, to the best of my knowledge, happened with the small cohort of judges who have disclosed financial interests through JABS or the SCTS Board, but that sample is so small that no comfort can be derived from that. Rather, I expect that judges will become increasingly vigilant about the risks of personal information appearing in the public domain.
Accordingly, one possible inhibitory effect on the administration of justice is that judges may start to decline positions on important public bodies such as these if that requires the disclosure of financial interests. In the same way, a register of judicial interests may have a damaging effect on judicial recruitment. You may be aware that, partly because of major changes to pension arrangements, difficulties have arisen in the recruitment of the senior judiciary. Revealing personal financial information is likely to act as a further powerful disincentive.
• Secondly, whether a decision on “recusal” should rest with a judge other than the individual who has been challenged or who has been identified as having a potential conflict of interests.
I assume that the proposition here is that the decision on declinature of jurisdiction should be made by someone other than the judge hearing the case, presumably another judge, or judges. At present, if a judge is asked to decline jurisdiction, and does not do so, then that decision can be reviewed, on appeal, by the appellate court. Any other system would not be an improvement. Cases are often allocated to judges, both in the Court of Session and the sheriff courts, at short notice. A party or a judge may not be aware of the circumstances in which the issue of declinature must be considered until the morning of the case. If he then requires to pass that issue to another judge, for consideration, the case is likely to be adjourned for that purpose, to the disappointment of litigants and the inefficient disposal of business in the courts.
The present system whereby a judge, having seen the papers and being aware of the precise extent of any interest financial or otherwise he may have, makes the decision on recusal, is the preferred option. Judges are invariably prudent in declining jurisdiction appropriately, but the right of appeal ensures that in, any rare case where that is not done, redress is available.
I should add that, as a generality, the problem, if there is one at all, rests with an over cautious approach to declinature: ie with judges or sheriffs declining jurisdiction and thus prompting an adjournment and causing delay when they should, in accordance with their duty, have heard and determined the cases placed before them.
• Thirdly, whether it would be in the interests of greater transparency for the “Register of Recusals” to be extended to cover instances where recusal has been considered or requested but jurisdiction has not been declined.
I would have no difficulty with the proposition that the register of recusals could be extended to cover instances when a judge has recused himself, and when he has declined to do so. The additional burden, which will fall upon the clerks of court, should not be great, and I agree that this may provide additional transparency.
I hope this is of assistance to the Committee. I indicated in previous correspondence that I felt I could add little more to the views previously expressed. That remains my view. However, if the Committee wishes me to provide this evidence orally, I will do so.
Responding to the letter from Lord Carloway, the petitioner has lodged a reply with MSPs.
The petitioner endorsed Lord Carloway’s offer to give evidence before the Committee, answered Lord Carloway’s concerns in relation to online fraud.
Moves by the Lord President to expand detail in the current recusals register were also welcomed by the petitioner, who suggested Lord Carloway add the same level of detail to the register of recusals which also appears in court opinions published on the Scottish Courts and Tribunals Service website.
Writing to the Petitions Committee, the petitioner said:
Noting Lord Carloway’s offer to give evidence in public session, I urge members to invite the Lord President to an evidence session so the Committee and public can hear from the current Lord President on this petition and evidence submitted to the Committee.
Regarding Lord Carloway’s concerns about online fraud and the proposal to create a register of judicial interests, I would point out the subject of online fraud has not particularly affected or precluded other branches of public services and government, including the Scottish Parliament, from maintaining registers of interests which include financial and other details – for a considerable length of time.
Online fraud is a matter which everyone in society must deal with. Information readily published by the courts, the Crown Office and other bodies within the justice system in relation to court opinions or verdicts, contain financial, location or other personally identifiable information of significantly greater detail than is currently published about any member of Scotland’s judiciary.
With regards to concerns in relation to judges declining positions on public bodies which require the disclosure of financial details, I wish to point out judges are wealthy, well connected and influential members of the most powerful group of people in society – the judiciary. The viewpoints they hold, their status, power, and their part in decision making goes on to form public policy or law, impacting on all areas of public life.
Members of the judiciary who hold positions on public bodies, remunerated or not, should be required to declare their financial and other interests, like other members of those bodies, as there is a public expectation of transparency in all decision making and branches of Government.
Noting Lord Carloway’s comments on the current system of judges deciding whether to recuse themselves or not, this system has been proved to hold significant failures, where cases have been heard by judges who refuse to recuse themselves or, have failed to declare an interest.
The Committee has already been made aware of such cases where in one example an individual was denied their liberty, then an appeal judge who threw out the appeal, claimed in a newspaper investigation he forgot he prosecuted the same individual who was appealing his conviction.
A new system of someone else deciding if a judge should recuse themselves, along with a full and open account of the recusal decision, should be created. I do not believe such a system would pose unwarranted financial expense or considerable delays to cases.
Noting Lord Carloway’s acceptance of my previous suggestions to widen the scope of the recusals register, I support the inclusion of details where a judge is asked to recuse, considers recusing on his own, or refuses to recuse.
Further, I suggest it would be no great effort to include case reference numbers, and parties in the publication of details in the recusals register (the subjects of cases permitting), in similar form as already regularly appears in court opinions on the Scottish Courts website.
The routine publication of such detail and data should be standard practice of a transparent and accountable justice system so when a recusal request or decision occurs, court users, legal representatives ,the public and media know exactly why and for what reason a decision was taken.
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