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THE COP FACTOR: Scottish Police Authority refuse to release documents on sex assault case top cop who wants to be Chief Constable – now, new info said to contain more complaints & references to ‘interaction with another officer’

SPA block files release on sex case cop who wants top job. DOCUMENTS detailing new, and serious complaints against a senior cop previously linked to a case involving five allegations of sexual assault, and now, fresh details of an additional ‘interaction with another officer’, are being kept secret by the Scottish Police Authority (SPA).

The secrecy move by the Scottish Police Authority, under their new chair of ex MSP & former Health Minister Susan Deacon – comes as three senior Police officers – including current Deputy Chief Constable Iain Livingstone – submitted their applications to be considered for the £216,549 a year role as Chief Constable of Police Scotland.

Material in relation to new complaints made against DCC Iain Livingstone was sought from the Scottish Police Authority in February of this year, after information was received with regards to further serious complaints made against Police Scotland’s current ‘interim’ Chief Constable.

However, the SPA under Susan Deacon deliberately delayed releasing their response to the Freedom of Information request – by a number of months, as members of the Scottish Police Federation and Scottish Government ministers bolstered DCC Livingstone’s position as front runner for the top job – despite the grim details of a case involving 5 allegations of serious sexual assault which were dismissed by a tribunal composed of Livingstone’s male cop colleagues.

The Scottish Police Authority were asked to provide details of :

  • The numbers of complaints, subject of complaints, and identities (not name, but by rank, status as Police Officer, civilian employee, member of the public or other)
  • Who have made complaints (and the numbers of complaints) against current DCC Iain Livingstone from 1 April 2013 to the date of this FOI request
  • The status, and outcomes of these complaints.

It should be noted Information in relation to a number of these complaints, has recently been shared with MSPs, and the media.

However, and some time after discussions over the Freedom of Information request had taken place, inside & outside the SPA – the Scottish Police Authority responded to the FOI request four months late, in early June – denying access to all of the information sought in relation to DCC Livingstone.

In their response, issued months late and outwith Freedom of Information timescales, the Scottish Police Authority wrongly claimed the material sought was “personal data of a third party” in a concerted attempt to conceal further details of complaints against DCC Livingstone from the public.

The Scottish Police Authority stated in it’s letter of response, dated 8 June 201:

The SPA considers that this request constitutes personal data of a third party and is, therefore, exempt in terms of Section 38 (1)(b) of the Freedom of Information (Scotland) Act 2002.

Furthermore this information is exempt under Section 34 (3)(a) of the Freedom of Information (Scotland) Act 2002 – Investigations by Scottish public authorities and proceedings arising out of such investigations.

Both are absolute exemptions and as such no public interest test has been applied.

A request for review has been lodged, and material also sent to the Scottish Information Commissioner with regards to the SPA’s refusal to disclose the information.

The Scottish Police Authority’s eagerness to conceal information in relation to a senior Police Officer – who has been previously accused of 5 allegations of serious sexual assault, and has faced further complaints including an ‘interaction’ with another officer – raises questions about the impartiality of the recruitment round to appoint a new Chief Constable to Scotland’s crisis hit single Police service.

With reference to the five allegations of serious sexual assault, Iain Livingstone was cleared of sexual impropriety or intent – by a tribunal headed by a male top cop colleague – Assistant Chief Constable John McLean.

The former lawyer and Raith Rovers footballer had been suspended for 17 months after the WPC claimed she had been sexually assaulted during the party.

A qualified lawyer and member of the Law society of Scotland, Mr Livingstone switched careers in 1992, joining Lothian and Borders Police.

In just 10 years, Livingstone – who had also once played for Raith Rovers – had clearly been fast tracked, reaching the rank of superintendent.

At the time of the allegations and ‘internal’ investigation by his Police colleagues, Livingstone was not prosecuted by the Crown Office over the claims.

Instead, Livingstone admitted a less serious allegation about being in the woman’s room overnight and falling asleep.

It should be noted that during the time of the investigation & tribunal, handled by Police, the Lord Advocate was Colin Boyd, Baron Boyd of Duncansby – now a judge in the Court of Session, and the Solicitor General was Elish Angiolini – recently appointed by Nicola Sturgeon a Scottish Minister to investigate how complaints are handled against Police in Scotland.

Asked about the sexual assault allegations during a recent BBC Scotland documentary, DCC Iain Livingstone said he “fell asleep in the wrong place and that was all”.

Although he admitted that he ‘shouldn’t have done that’, he insisted that he still has the right attributes for the job.

During the documentary, A Force In Crisis, investigative journalist Sam Poling asked Mr Livingstone about the ‘allegations of sexual assault’ and about him being ‘bumped down from superintendent to constable and suspended’.

Mr Livingstone said: “There was a set of circumstances in 2000 whereby at a social event at Tulliallan, at a training event I had too much to drink.”

Livingstone said in the programme: “I fell asleep in the wrong place and that was all and I shouldn’t have done that, and clearly I accept that.

‘I was suspended, I spent time off work. There was a hearing convened where I did accept I fell asleep.I was cleared of any sexual impropriety.

‘I was cleared of any level of sexual intent and at that hearing, initially, I was then demoted from superintendent to constable. I immediately appealed against that and I was reinstated.”

Politicians also questioned his suitability for the job after his response to the claims in a BBC documentary this week – saying only that he ‘fell asleep in the wrong place and that was all’.

One MSP said: ‘I was quite concerned by how he came across. It raises more questions about what happened and his fitness for the role.’

However, Livingstone’s application for the top job – which appears to be backed by Scottish Ministers, and the Scottish Police Federation has been called into question after a former Assistant Chief Constable said Livingstone should not get the top job.

Ex top cop speaks out on sex case linked DCC Iain Livingstone’s quest to be Chief Constable:

In an article in the Daily Mail newspaper, Angela Wilson, ex-Assistant Chief Constable at Police Scotland said DCC Iain Livingstone should not get the job after his humiliating confession about his past.

Angela Wilson believes the allegations should disqualify Iain Livingstone from leading the force.

Miss Wilson – now chairman of the Women’s Rape and Sexual Abuse Centre in Dundee said: “I feel uncomfortable with the head of Scottish policing having an allegation of this nature in his past. We deserve a leader who does not have an issue like this in their background.”

“The police should be above the kind of thing revealed by the BBC programme. We should be the most honest people in society.”

“As far as I understand this case, it was one person’s world against another’s.”

“The police must have taken it very seriously to initially reduce him in rank after finding him guilty of a disciplinary offence.”

“People are much more aware that inappropriate workplace behaviour will not be tolerated. To have a Chief Constable of Police Scotland with something like this in his past is not good.”

“Some might say it was many years ago, but it doesn’t matter because other people in society have been held to account for historic misconduct and they are in much less important positions.”

“His explanation was one I did not feel comfortable with.”

COPS TURN ON THEIR OWN: Scottish Police Federation boss launches twitter attack on ex colleague:

Following the comments from ex ACC Wilson, Calum Steele, the leader of the Scottish Police Federation (SPF), launched attacks on his female former colleague on the twitter social media platform.

The Sunday Mail reported that Calum Steele – a Police Constable with an honorary rank as Chief Inspector due to his Police Federation duties –  also branded ex ACC Wilson “useless” and a “buffoon” and wrongly claimed in tweets that a corruption inquiry in her former force Tayside “extended” to her.

Steele is general secretary of the Scottish Police Federation (SPF) who have 18,500 members and represent 98 per cent of police officers.

Steele posted a string of six tweets last week after Wilson spoke out on the prospect of DCC Iain Livingstone gaining the top job as Chief Constable of Police Scotland.

The first of Calum Steele’s tweets said she was “one of the most incompetent imbeciles ever to have held rank in the police service”.

It claimed she was continuing “a smear on one of the very best”, adding: “You really need to ask – who is driving this?”

He went on to say that Wilson had served in Thames Valley Police as did Claire Gormley, the wife of Phil Gormley who quit as head of Police Scotland in February following bullying allegations against him.

Steele added: “AW [Angela Wilson] and the Gormleys have an axe to grind. It’s frankly pathetic.”

He also described Livingstone as “one of the most talented, able, skilled and resilient police officers”.

Scottish Tories justice spokesman Liam Kerr said: “Mr Steele has a position of responsibility and should probably have thought more carefully before embarking on this chain of tweets.

“The result of this is now a potential legal case which will drag the force and its associated bodies through the mud at a time it never needed it less.”

Angela Wilson subsequently lodged a formal complaint with Police Scotland and the SPF.

It was then reported in the Sunday Mail newspaper that – as a result of the complaint raised by ex ACC Wilson, Constable Calum Steele was found guilty of posting “inappropriate and offensive” online comments about a female ex-police chief.

Upholding the complaint, Chief Inspector Jacqui Campbell, of the Professional Standards Department (PSD), ruled the comments were “inappropriate and offensive” and that Wilson was “never investigated for corruption”.

Steele claimed to be off duty when he launched the Twitter tirade on May 3 but the Professional Standards Department probe discovered that he was working.

Campbell said: “The record revealed Constable Steele’s duty for that date was 0900 to 1700 hours, therefore, at the time the tweets were posted he was on duty.”

Campbell has issued Wilson a “sincere apology for the undoubted upset Constable Steele’s actions have caused”.

But Steele – who heads the federation representing 98 per cent of Police Scotland officers – “makes no apology” and refuses to delete the messages.

Campbell said: “We have asked Constable Steele to remove the relevant tweets from his Twitter account. Unfortunately, it is his own personal Twitter account and, as such, we are unable to order him to remove or delete them.”

Despite Steele’s messages being from a personal account, Campbell found “they are directly related to his role as a police officer and particularly his role as general secretary” of the SPF.

Mr Livingstone has been regarded as the favourite to replace Phil Gormley, who quit in February after being accused of bullying by colleagues.

Following Gormley’s leave of absence last year, a campaign of suspensions, bitter infighting dubbed ‘backstabbing cops’ in the media, and now scrapped criminal investigations into colleagues of the ousted Chief Constable then took place over a number of months – setting the stage for DCC Livingstone to conveniently scrap his retirement plans, and campaign, along with vested interests in the Scottish Police Federation to replace the ousted Chief Constable.

Steele, who spoke to PSD officers through a lawyer, now faces a further hearing which may result in disciplinary action. His lawyer quoted a dictionary definition of “imbeciles” as meaning “a fool” and that it was “a fair and honest comment that represents Constable Steele’s honestly-held belief”.

Scottish Conservative justice spokesman Liam Kerr said: “Calum Steele should really back down, apologise and delete the offending tweets. Otherwise this row will rumble on.”

Chief Superintendent Mark Hargreaves, head of the Professional Standards Department, said: “The investigation into this complaint has concluded and as this is an internal matter it would be inappropriate to comment further.”

THE MSP & SEX CASE TOP COP: Ex cop MSP failed to declare link to sex case cop Livingstone:

In an earlier report in the Sunday Mail newspaper, it was also revealed that while DCC Iain Livingstone was giving evidence to the Scottish Parliament’s Justice Committee in January, Justice Committee member & former police officer John Finnie had failed to tell fellow MSPs he had represented Iain Livingstone when he was cleared of sexual misconduct.

At Holyrood’s justice committee in January, John Finnie quizzed Livingstone about staffing levels and said losing chief officers was one of the benefits of creating a single police force.

Scottish Labour justice spokesman Daniel Johnson said: “John is a valued colleague on the justice committee but I am alarmed that he did not see fit to declare this link with the acting chief constable.

“Police Scotland are in desperate need of scrutiny – and the public will expect such scrutiny to be conducted professionally.

“I would urge him to correct the record and to ensure he declares interests fully and promptly in future.”

A spokesman for the Scottish Conservatives added: “He also owes parliament an explanation as to why he neglected to mention this very important link.”

Finnie spent 14 years as an official for the Scottish Police Federation (SPF) – the organisation who represent police officers up to the rank of chief inspector.

SCOTLAND’S NEXT TOP COP:

There are three shortlisted candidates for the Chief Constable role at Police Scotland.

Deputy Chief Constable Iain Livingstone, whose past & current complaints records are being kept secret by the Scottish Police Authority, and Police Scotland.

A second candidate – Police Scotland Deputy Chief Constable Johnny Gwynne – a former head of the National Crime Agency’s (NCA) Child Exploitation and Online Protection command – has also applied for the job.

Gwynne, a former Royal Ulster Constabulary (RUC) officer also previously held the post of former deputy director-general of the Scottish Crime and Drug Enforcement Agency – which was absorbed into Police Scotland in 2014.

The third candidate is Lincolnshire Police Chief Constable Bill Skelly, who joined Devon and Cornwall Police from Police Scotland as Deputy Chief Constable in 2013 and was appointed as chief Constable of the force last year.

The shortlisted candidates will undergo a selection process including two panel interviews, chaired by the Scottish Police Authority’s own boss Susan Deacon.

And the selection panel will also include SPA board member Mary Pitcaithly, NHS Scotland chief executive Paul Gray, Professor Lorne Crerar, – chairman of legal firm Harper MacLeod; and National Crime Agency Director General Lynne Owens.

Gill Imery – the current Her Majesty’s Chief Inspector of Constabulary in Scotland will also act as an ‘advisor’ to the team.

According to the job information pack: “Shortlisted candidates will be invited to participate in a psychometric and personality profile exercise, an Assessment Centre, and an interview with the Selection Panel.”The assessment centre will include a scenario exercise and a mock media interview.

Final interviews of the three candidates are expected to take place on 13 and 14 August.

A report on the allegations of sexual assault against Iain Livingstone by a female Police Officer, allegations which were dismissed by a tribunal headed by male Police Officer colleagues of Livingstone was reported earlier by DOI here: TOP COP SECRETS: Transparency lacking at Police Scotland as spy scandal cops refuse to disclose files on complaints & historical sexual assault case details involving Deputy Chief Constable Iain Livingstone

 

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COURT FRACKING: Scottish Government ban on fracking does not exist says Lord Pentland – Court of Session throws out INEOS challenge as Judge says Ministerial claims “did not accurately express the legal effect of the decisions”

Scottish Govt fracking ban does not exist – judge. SCOTLAND’S top court has ruled that claims by Ministers that fracking is banned, are not consistent with current law, and therefore the forced extraction of extracting shale gas from subterranean  rocks – has not been banned in Scotland.

The Court of Session’s decision also hits out at numerous “mistaken” statements by SNP ministers of a ban on what many regard as an environmentally damaging process which uses water and chemicals pumped at high pressure into underground shale beds to release methane gas.

Earlier today, the Judiciary of Scotland published Lord Pentland’s ruling on the INEOS challenge to the Scottish Government’s claims of a ban on fracking – in which the court threw out the challenge, on the grounds there was and is no existing prohibition against shale gas extraction in Scotland.

Despite claims of a ban on fracking by numerous Scottish Government Ministers, including the First Minister herself Nicola Sturgeon, Lord Pentland ruled that no such ban exists, and that in reality there is little more than an evolving planning policy.

Revealing there is no existing legal basis for claims by the First Minister & others that a ban on fracking is in force – Lord Pentland said statements by ministers including Paul Wheelhouse MSP and First Minister Nicola Sturgeon that a ban existed “did not accurately express the legal effect of the decisions” involved.

The statement issued by the Judicial Office notes that [despite numerous claims by Ministers] “the Lord Advocate, on behalf of the Scottish Ministers, made it clear to the court that such statements were mistaken and did not accurately reflect the legal position”.

Lord Pentland’s judgement concludes that “as a matter of law, there is no prohibition against fracking in Scotland”.

The ruling issued today followed statements by the Scottish Government to the Scottish Parliament during October 2017 that fracking had effectively been banned through the use of new guidance on planning consent.

Energy minister Paul Wheelhousewho once made false claims to a Holyrood Committee that fictitious gangsters made transparency in the judiciary impossible – told MSPs last year that “fracking cannot and will not take place in Scotland”.

Similarly, First Minister Nicola Sturgeon said “fracking is being banned in Scotland – end of story”.

Earlier this year, and after the continued claims by the Scottish Government and it’s supporters of a ban on fracking, Ineos Upstream Ltd and Reach CSG sought a judicial review of the effective ban, the Scottish Government began t changed its tune.

When the case was called in court, the Scottish Government’s own lawyer – James Mure QC  – claimed the legal challenge by Ineos was premature as SNP ministers had “not yet adopted a position” and that in effect Ministers had merely announced a preference for a ban.

James Mure QC was forced to admit to the court that his client the Scottish Government had merely spun the issue of a preference of a ban, into an actual ban.

The QC was forced to tell the court in the earlier hearing: “The concept of an effective ban is a gloss. It is the language of a press statement.”

However, in the Court of Session opinion issued today, Lord Pentland’s judgement rubbished Ministerial claims of a ban on fracking, concluding that “as a matter of law, there is no prohibition against fracking in Scotland”.

In the judgment, Lord Pentland also rejected Ineos and Reach CSG’s case on the basis that no ban exists.

The Herald newspaper reported on the court’s decision today, and also reported – “After the judgment was released, the SNP rewrote the environment section of its website, deleting the words “The Scottish Government has put in place a ban on fracking in Scotland”.

Ineos, which runs the Grangemouth refinery and already imports US shale gas as a precursor for petrochemical works, would like to frack gas in the Central Belt.

It has previously accused the government of an “Alice in Wonderland” position on fracking.

Ineos said it now expected all planning applications for fracking to be considered on merit, not “prejudice and political expediency” and ministers of wasting public money by not being clearer earlier.

Mr Wheelhouse, who told MSPs there was a ban, welcomed the Court saying there wasn’t.

He said: “This decision vindicates the extensive process of research and consultation which the Scottish Government has undertaken since 2015.

“As I set out in October, our preferred position is not to support Unconventional Oil and Gas extraction in Scotland, and that position remains unchanged.

“I have repeatedly set out to parliament that we would undertake a Strategic Environmental Assessment (SEA) ahead of finalising that position and that approach has been endorsed by the overwhelming majority of the Scottish Parliament.

“The work to complete the SEA and a Business and Regulatory Impact Assessment is currently underway and the findings will be carefully considered.

“In the meantime, a moratorium is in place which means no local authority can grant planning permission and Ministers would defer any decision on any planning application that did come forward until the policymaking process is completed.

“The practical effect of the current moratorium and the policymaking process which is underway to finalise our position is that no fracking can take place in Scotland at this time.”

In his judgement published earlier today, Lord Pentland quoted First Minister Nicola Sturgeon and Mr Wheelhouse’s statements in parliament about there being a ban.

However, in what seems an attempt at appeasing the misleading statements by Ministers, Lord Pentland was forced to add that the accuracy of such misleading ministerial statements was not the core issue – even though the existence of the misleading claims by the First Minister & Scotish Government led to the Ineos legal challenge in the first place.

Lord Pentland said: “The legal question is not whether ministers have accurately described or commented on their understanding of the legal effect of the various steps they have taken or authorised to be taken under the planning system, but the fundamentally different question of what the legal effect of those steps really is.

He added: “The ministerial comments reflecting the opinion that there was an effective ban on fracking are (a) irrelevant to the legal question before the court; (b) not binding on the court; (c) in any event, not determinative of the question of construction that the court has to address; and (d) to the extent that they did not accurately express the legal effect of the decisions taken must be left out of account when it comes to answering the legal question.”

“To the extent that some sections of the ministerial statements made to the Scottish Parliament were capable of being read as suggesting that the policy would amount to a ban on fracking, Mr Mure QC accepted on behalf of the Lord Advocate that such statements did not accurately reflect the legal position; they were to that extent mistaken.”

The full statement issued by the Judicial Office for Scotland

Ineos Upstream Ltd and another v Lord Advocate

A petition seeking judicial review of certain acts and decisions of the Scottish Government in implementation of what was purportedly an indefinite ban on “fracking” has been refused. The Court of Session held that the legal effect of certain statements and planning directions made by the Scottish Ministers to the effect that the Scottish Government will not support the development of unconventional oil and gas extraction in Scotland, and a subsequent decision that the directions should continue in force indefinitely, is that there is in fact no prohibition against fracking in force. The following is a summary of the detailed opinion issued by Lord Pentland.

On 28 January 2015 the Scottish energy minister, Mr Fergus Ewing MSP, made a statement to the Scottish Parliament on the development of unconventional oil and gas extraction in Scotland (“UOG”) to the effect that there was to be work on planning and environmental regulation, a health impact assessment, and a consultation process on UOG. He stated that given the importance of this work it would be inappropriate to allow any planning consents in the meantime. He therefore announced what he described as a “moratorium” on the granting of planning consents for all UOG developments, including the method of oil and gas extraction known as hydraulic fracturing or “fracking”. The moratorium was to continue until such time as the work referred to had been completed. The minister stated that a direction would be sent to all Scottish planning authorities to give immediate effect to that policy. A similar direction would be issued to SEPA.

The 2015 Planning Direction and the 2015 SEPA Direction gave legal effect to the moratorium, by requiring planning authorities to intimate the receipt of planning applications for any UOG developments to the Scottish Ministers, prohibiting planning authorities from granting planning permission within 28 days of notification to ministers, and giving ministers the power to call in applications for determination by them. The power of the Scottish Government to call in planning applications for determination by them, coupled with the 2015 Planning Direction and the 2015 SEPA Direction gave Scottish Ministers the means to control two of the essential legal requirements for onshore extraction of UOG. By refusing planning permission or authorisation of controlled activities, the Scottish Government could prevent onshore UOG development extending beyond drilling of core samples. To date, the notification requirements under the 2015 Planning Direction have not been triggered. No application has been remitted to ministers by SEPA under the 2015 SEPA Direction.

Following further research into the impact of onshore UOG development in Scotland and a public consultation, the Minister for Business, Innovation and Energy, Mr Paul Wheelhouse MSP made a statement to the Scottish Parliament on 3 October 2017 in which he confirmed the Scottish Government’s “preferred position”, namely that it would not support the development of UOG in Scotland and that it would use planning powers to deliver its position; that it had written to local authorities across Scotland to make it clear that the directions that give effect to the moratorium would remain in place indefinitely; and that this action was sufficient to “effectively ban” UOG in Scotland.

On 5 October 2017 at First Minister’s question time, in reply to an observation that there was concern that the ban was not yet legally watertight, the First Minister said that: “What Paul Wheelhouse outlined to the chamber earlier this week is an effective way of banning fracking and … is the quickest way of banning fracking.”

At a debate on UOG in the Scottish Parliament on 24 October 2017, Mr Wheelhouse said that the Scottish Government was honouring the commitment it had previously given to allow MSPs an opportunity to “endorse our carefully considered and robust position on unconventional oil and gas”.  An amended motion was passed endorsing the Scottish Government’s decision to introduce an immediate and effective ban on UOG and noting that this position would be subject to a strategic environmental assessment before being finalised.

In December 2017 Ineos Upstream Limited and Reach Coal Seam Gas Limited, which both hold interests in petroleum exploration and development licences (“PEDLs”) in respect of certain onshore areas in Scotland raised the present proceedings, seeking judicial review of the acts and decisions of the Scottish Government in relation to UOG in Scotland. The basis of the petitioners’ case was that in 2017 the Scottish Government unlawfully imposed an indefinite ban on fracking.

The Lord Advocate on behalf of the Scottish Ministers maintained that, on a correct understanding of its acts and decisions, the Scottish Government did not impose any such ban. He contended that since there was no ban the petitioners have no case; the petition for judicial review was based on a series of fundamental misunderstandings of the Scottish Government’s position and should accordingly be refused.

Refusing the petition, the judge held that, as a matter of law, there is no prohibition against fracking in Scotland. The fact that the emerging policy position was expressed as being a “preferred” one shows that the Scottish Government understood that unless and until the strategic environmental assessment was completed, a policy on UOG could not lawfully be finalised and adopted. Ministerial comments reflecting the opinion that there was an effective ban on fracking were (a) irrelevant to the legal question before the court; (b) not binding on the court; (c) in any event, not determinative of the question of construction that the court had to address; and (d) to the extent that they did not accurately express the legal effect of the decisions taken must be left out of account when answering the legal question.

Lord Pentland’s opinion stated: “The petition is predicated on the proposition that the Scottish Government has introduced an unlawful prohibition against fracking in Scotland. Whilst acknowledging that there have been a number of ministerial statements to the effect that there is an effective ban, the Lord Advocate, on behalf of the Scottish Ministers, made it clear to the court that such statements were mistaken and did not accurately reflect the legal position. The stance of the Scottish Government before the court is that there is no legally enforceable prohibition. For the reasons set out in this judgment, I consider that the Government’s legal position is soundly based and that there is indeed no prohibition against fracking in force at the present time. What exists at present is an emerging and unfinalised planning policy expressing no support on the part of the Scottish Government for the development or extraction of UOG in Scotland. The process of policy development is not yet complete; the important stages of a strategic environmental assessment and a business and regulatory impact assessment have still to be carried out. There is no basis on which the court should interfere with those procedures; the petitioners will have a full opportunity to contribute to and participate in them. I conclude that since there is no prohibition against fracking, the petitioners’ case is unfounded; their application for judicial review of the alleged ban must accordingly fail.”

The full opinion can be accessed online here: Ineos Upstream Ltd and another v Lord Advocate

The Top judge who said court lawyers & judiciary should profit from & serve shale gas extraction & fossil fuel interests:

THREE years ago, Scotland’s now former top judge – Lord Brian Gill spoke on the very same day the Scottish Government announced the ‘moratorium’ on fracking, expressing his desire – and ultimately judicial policy – that fracking for shale gas should go ahead, and will increase business in the courts.

In a speech given at a Holyrood digital media conference on the same day that Minister Fergus Ewing MSP announced the moratorium on fracking, Lord gill also said he wanted to turn Scotland’s legal system into a mediation haven for big business, big oil, shale gas barons & bankers, according to a speech he gave on the theme of “Digital Justice” last week.

Lord Gill’s plans for fracking & big oil mediation was hoped to draw in millions for lawyers and judges – without the need to declare any interests.

During the fourteen page speech – Gill (72) also urged the legal sector to better exploit Scotland’s “natural resources” and renewable energy for their own profit.

Speaking on the issue of fracking, and taking aim squarely at the Scottish Government’s alleged policy on a moratorium, Lord Gill told conference delegates: “Our resources of energy may be increased by the retrieval of shale gas, if that should be allowed. It seems to me therefore that the opportunity that our natural resources present should be served by the court system.”

Speech by Lord Gill on Digital Justice, Fracking & Big Oil. During the speech, Lord Gill also chastised his own judicial colleagues & lawyers for missing out on exploitation of Scotland’s oil boom.

Lord Gill said: “In the 1960s and 1970s the economy of Scotland was transformed by the discovery of North Sea oil. The judges and lawyers of that time were not alert to the opportunity that Scotland could be an international forum for resolving disputes in the oil and gas industry. We paid a price for our complacency when the international oil and gas industry passed us by.”

Gill continued: “Half a century on we should look at Scotland’s economic opportunities and see how the courts can best serve them. In recent years a commitment to renewable energy has brought wind power to the fore as an energy source. Other forms of renewable energy may follow.”

The top judge also claimed Scotland can be made an international centre for litigation and mediation.

Gill said “Our legal system should be a driver for economic progress in Scotland. Our courts and our judges can and should contribute to the prosperity of our country. We can do that if, by the excellence of our judges, and our legal profession and the efficiency of our courts, we make Scotland a forum of litigation that not only retains litigations that at present go elsewhere but also becomes a forum of choice for litigations from abroad..”

Lord Gill’s own speech on the issue of fracking, and personal desire for shale oil gas extraction to go ahead, as a matter of judicial policy – was at complete odds with the statement issued by Scottish Government Minister Fergus Ewing on the same day to MSPs at Holyrood.:

While Gill gave his ‘fracking is good for the legal profession, courts & judiary’ lecture, Mr Ewing told the Parliament: “I want to ensure that the voices of the communities likely to be most affected are heard, and are heard in a more formal and structured way.I am therefore announcing today that in addition to the technical work I’ve referred to on planning, environmental regulation and upon assessing the impact on public health, Scottish ministers will also launch a full public consultation on unconventional oil and gas extraction.”

An earlier report on Lord Gill’s speech on the issue of fracking can be found here: FRACKING JUDGES: Scotland’s top judge promotes shale gas extraction, big oil and renewable energy as profit incentive for courts on same day Scottish Government announce ban on fracking

 

 

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JUDICIAL REGISTER: Holyrood Petitions Committee calls for legislation to require Scotland’s judges to declare their interests in a register of judicial Interests

MSPs support creation of Judicial Register. A SIX YEAR Scottish Parliament investigation of a petition calling for the creation of a register of interests for judges has received the backing of a powerful Holyrood Committee – who have concluded the proposal to increase judicial transparency – should become law.

On Thursday, 22 March 2018, the Public Petitions Committee of the Scottish Parliament held it’s 25th hearing to discuss Petition PE1458: Register of Interests for members of Scotland’s judiciary.

Members of the Committee concluded that such a register should be introduced into law – and cast aside arguments put forward by two top judges that such a register was “unworkable

Petitions Committee Convener Johann Lamont MSP (Scottish Labour) said: “In the course of our consideration of the petition, positive developments have occurred—most notably the introduction and further development of a register of judicial recusals. The register brings welcome transparency to instances where a judge may decide, or be requested, to decline to hear a particular case. “

“The committee particularly welcomes the recent agreement of the Lord President to expand the information that is captured in the register. However, the core action that was requested by the petition was the establishment of a register of financial interests.”

“We have given much thought to this request, hearing views both for and against such a register. Having taken those arguments into account, the committee has concluded that a register of financial interests is not unworkable, and it is the view of this committee that such a register should be introduced.”

Deputy Convener Angus MacDonald MSP (Scottish National Party) added: “This is another long-running petition, having been live since December 2012—for as long as I have been on the committee. It was originally based on a similar move in New Zealand, which was subsequently withdrawn.”

“Along with a wide range of back benchers from across the political spectrum, I spoke in favour of the introduction of a register of interests during a debate in the chamber in the previous session. It is clear to me that we need to ensure transparency and openness in public life as well as ensuring that people can have confidence in those holding public office. I believe that a register of interests along the lines of the system operating in Norway, which I have looked at, is the way to go. However, I am aware that the committee as a whole has not taken a view on that.”

“The petition has already secured a result, which you have referred to, with the introduction of a register of recusals, which was brought into effect in April 2014, directly as a result of this petition. You also referred to the fact that the current Lord President, Lord Carloway, has agreed to extend the scope of the register of recusals.”

“I would be keen for the Scottish Government and the Judicial Office for Scotland to do some further work on the introduction on the introduction of a register of financial interests. However, as you have suggested as possibly being the way forward, in the first instance we should refer the petition to the Justice Committee to allow it to move the issue forward.”

The Petitions Committee have since written to the Justice Secretary Michael Matheson, and Lord Carloway.

When responses are received, MSPs will consider further action.

Video footage and a transcript of the Public Petitions Committee hearing follows:

Petition PE 1458 Register of Judicial Interests Public Petitions Committee 22 March 2018

Judiciary (Register of Interests) (PE1458):

The Convener:  The next petition, PE1458, calls for the introduction of a register of interests for members of Scotland’s judiciary. As members will recall, we have previously agreed to write to the Lord President and the Cabinet Secretary for Justice, and have considered a draft letter at previous meetings. The petition has received much consideration since it was lodged in 2012. I express my gratitude to the petitioner for raising the issue and to all those who have engaged in discussions on the issues that are raised in the petition, including the Lord President, Lord Carloway, and his predecessor, Lord Gill.

In the course of our consideration of the petition, positive developments have occurred—most notably the introduction and further development of a register of judicial recusals. The register brings welcome transparency to instances where a judge may decide, or be requested, to decline to hear a particular case. The committee particularly welcomes the recent agreement of the Lord President to expand the information that is captured in the register. However, the core action that was requested by the petition was the establishment of a register of financial interests. We have given much thought to this request, hearing views both for and against such a register. Having taken those arguments into account, the committee has concluded that a register of financial interests is not unworkable, and it is the view of this committee that such a register should be introduced.

In reaching that view, the committee is very clear that it does not consider there to be a basis for any suggestion of corruption in respect of Scotland’s judiciary or of inappropriate influences on judicial decision making. Rather, it is the view that we have reached, based on the principles of transparency and openness in public life. While that is the view of this committee, we also understand that the Lord President and the Scottish Government have indicated they do not support the introduction of a register.

Would it be appropriate for us to invite the Justice Committee to consider the petition in light of our recommendation? Would members be content to write to the Lord President and the Scottish Government setting out our view and to refer the petition to the Justice Committee for its consideration? Do members have any comments?

Angus MacDonald (Falkirk East) (SNP): This is another long-running petition, having been live since December 2012—for as long as I have been on the committee. It was originally based on a similar move in New Zealand, which was subsequently withdrawn. Along with a wide range of back benchers from across the political spectrum, I spoke in favour of the introduction of a register of interests during a debate in the chamber in the previous session. It is clear to me that we need to ensure transparency and openness in public life as well as ensuring that people can have confidence in those holding public office. I believe that a register of interests along the lines of the system operating in Norway, which I have looked at, is the way to go. However, I am aware that the committee as a whole has not taken a view on that.

The petition has already secured a result, which you have referred to, with the introduction of a register of recusals, which was brought into effect in April 2014, directly as a result of this petition. You also referred to the fact that the current Lord President, Lord Carloway, has agreed to extend the scope of the register of recusals.

I would be keen for the Scottish Government and the Judicial Office for Scotland to do some further work on the introduction on the introduction of a register of financial interests. However, as you have suggested as possibly being the way forward, in the first instance we should refer the petition to the Justice Committee to allow it to move the issue forward.

Rona Mackay: I broadly agree with what my colleague has said. That is a natural way forward for the petition. I do not think that we can take it any further, given the history that we have just heard. I think that it is sensible to send it to the Justice Committee for its consideration.

The Convener:  Do we agree to write to the Lord President and the Scottish Government setting out our view and to refer the petition to the Justice Committee for its consideration?

Members indicated agreement.

Decision: PE1458 by Peter Cherbi on Register of Interests for members of Scotland’s judiciary. The Committee agreed to write to the Lord President and the Scottish Government setting out its view that a register of interests should be introduced and to refer the petition to the Justice Committee, under Rule 15.6.2 of Standing Orders, for its consideration.

The judicial interests petition – filed at Holyrood in October 2012 and 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 report containing video footage of every hearing, speech, and evidence sessions at the Scottish Parliament on Petition PE1458 can be found here: Scottish Parliament debates, speeches & evidence sessions on widely supported judicial transparency petition calling for a Register of Interests for Scotland’s judiciary.

MSP at Holyrood have previously heard over sixty two submissions of evidence, during twenty one Committee hearings, and a private meeting between two MSPs and a top judge, and two private meetings since early December 2017 to decide a way forward on their six year investigation.

Cross party support for the Petition at the Scottish Parliament saw fifteen speeches by MSPs during a full Holyrood debate spanning from 2012 to 2018.

The move to create a register of judicial interests enjoys cross party support, is widely supported in the media and  in public debate as a result of media coverage.

The petition secured early support of Scotland’s Judicial Complaints Reviewer Moi Ali, and her successor – Gillian Thompson.

Moi Ali – who served as Scotland’s first Judicial Complaints Reviewer (JCR) – appeared before the Public Petitions Committee of the Scottish Parliament in a hard hitting evidence session during September of 2013, giving early backing to the proposals calling for the creation of a register of judicial interests.– reported here: Judicial Complaints Reviewer tells MSPs judges should register their interests like others in public life.

Scotland’s second Judicial Complaints Reviewer Gillian Thompson OBE also supported  the petition and the creation of a register of judicial interests during an evidence session at Holyrood in June 2015.

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.

Video footage and a full report on Lord Brian Gill giving evidence to the Scottish Parliament in November 2015 can be found here: JUDGE ANOTHER DAY: Sparks fly as top judge demands MSPs close investigation on judges’ secret wealth & interests – Petitions Committee Chief brands Lord Gill’s evidence as “passive aggression”

Video footage and a full report on Lord Carloway (Colin Sutherland) giving widely criticised evidence to the Scottish Parliament in July 2017 can be found here: REGISTER TO JUDGE: Lord Carloway criticised after he blasts Parliament probe on judicial transparency – Top judge says register of judges’ interests should only be created if judiciary discover scandal or corruption within their own ranks

The letters sent by the Public Petitions Committee to Lord President Lord Carloway, and Justice Secretary Michael Matheson recommend the creation of a register of judicial interests:

Dear Lord Carloway,

Petition PE1458: Register of Interests for members of Scotland’s judiciary

Calling on the Scottish Parliament to urge the Scottish Government to create a Register of Pecuniary Interests of Judges Bill (as is currently being considered in New Zealand’s Parliament) or amend present legislation to require all members of the Judiciary in Scotland to submit their interests & hospitality received to a publicly available Register of Interests.

As you may be aware, the above petition was lodged in December 2012 and has been considered by the current Public Petitions Committee and its Session 4 predecessor. Over this period MSPs have taken on board the arguments for and against a register of interests and the nature of the interests that might be covered in such a register. This letter sets out the conclusions that the Public Petitions Committee has reached on the petition.

In setting out these conclusions, I would emphasise that the Committee absolutely recognises that an independent and well-functioning judiciary is, and must be, an essential part of our system of government.

I also make clear that the Committee’s consideration of the petition, and the views set out in this letter, reflect our viewpoint that there is no basis for any suggestion of corruption in respect of Scotland’s judiciary or of inappropriate influences on judicial decision making.

The Committee has reached its views based on the wider contemporary picture of transparency and openness in public life wherein preventing the perception of any undue influence is important in ensuring confidence in those holding public office.

Register of recusals

One of the welcome developments in the course of this petition has been the introduction of a register of recusals. The Committee notes that this register was brought into effect in April 2014 directly as a result of the petition and a meeting between the then Lord President, Lord Gill, and representatives of the Session 4 Public Petitions Committee. In recent discussions with the Committee, and the petitioner, you agreed to extend the scope of the register of recusals. As a result, the register will now ensure transparency about recusal across courts and tribunals in Scotland. The Committee very much welcomes these measures.

In doing so, we note that this addresses one of the arguments made against a register of financial interests – that it would not capture those instances where consideration of any potential conflict in a case was based on a social or personal connection that may not be known about prior to a case coming to court.

The Committee agrees that the practicalities are such that it would not be possible or proportionate to require advance registration of personal connection with parties that may at some point be relevant within a particular case. However, we do consider that public transparency of such connections is vital and the register of recusals is the tool that strikes an appropriate balance in this regard.

We would also observe that the value of collating information about recusals is that it enables analysis to be undertaken of the way the recusal systems operates and for this analysis to inform ongoing thinking about the administration of justice through the Scottish courts.

Register of financial interests

Turning now to the core question of a register of interests, the Committee’s most recent consideration of the petition focussed on seeking to understand and explore some of the arguments put forward against the introduction of such a register.

These arguments have included—

• a risk of online fraud due to retribution from dissatisfied litigants (which, it was argued, may have an inhibitory effect on the administration of justice if judges start to decline roles on public bodies such as the board of the Scottish Courts and Tribunals Service) and,

• the possibility of the existence of a register of interests having a damaging effect on recruitment.

Members do, of course, have an understanding of the practical operation of a register of interests given the duties that apply to elected members. However, in considering the arguments put forward, we have not considered the role of judges as analogous to the role of elected members or had in mind any particular model for a register of interests that might be appropriate for judges.

Instead, our consideration has been based on an understanding of the expectations that apply to all holders of public office, whether elected or unelected, in relation to disclosure of financial interests. As we noted above, such disclosures not only allow for demonstration that decision-making is not influenced by personal interests but also prevent the perception of the influence of interests on decision-making.

Having considered these arguments and the thinking behind them, the Committee has not been convinced that a register of interests is an unworkable idea and it is the view of the Committee that such a register should be introduced.

Recognising that the Scottish Government and the Judicial Office for Scotland have indicated that they do not support the introduction of a register, the Committee today agreed to refer the petition to the Justice Committee, inviting that Committee to consider the petition further, in light of our recommendation.

Yours sincerely: Johann Lamont MSP Convener

The National reported on the success of the six year petition calling for a register of judicial interests, in the following articles:

Judges register backed by MSPs to become law

Martin Hannan Journalist 23 March 2018

IT’S taken nearly six years and 25 hearings but as The National predicted yesterday, a register of interests for all Scottish judges is set to become law.

The petition for a register by legal issues campaigner Peter Cherbi will now go the Justice Committee at Holyrood with a recommendation that the register becomes law.

The current and previous Lord Presidents, Lord Carloway and Lord Gill respectively, both strongly opposed the register which they feel will make it difficult for judges to be recruited.

Committee chair Johann Lamont said: “The committee has concluded that a register of financial interests is not unworkable and it is the view of the committee that such a register should be introduced.”

She said the committee’s view had been reached with regard to “the principles of openness and transparency in public life”.

Having achieved his success after years of work, Peter Cherbi told The National: “I am delighted to hear the Public Petitions Committee support the creation of a register of interests for judges, and applaud their work on this petition.

“From filing the petition in 2012, being a part of the process to submit evidence, report on hearings, and observing witness evidence, I am very impressed that Holyrood followed this through from committee, to a full debate in the main chamber in October 2014, where the petition gathered overwhelming cross party support, to now, with the decision to recommend the creation of a register of judicial interests.

“Key evidence from Judicial Complaints Reviewer Moi Ali in September 2013 was, I believe, the turning point and a key moment where the proposal for register of judicial interests gathered steam.

“MSPs were able to hear for themselves from someone within the justice framework how a register of interests for judges would not only benefit transparency, but also bring back much needed public trust and respect to the justice system and our courts.

“My sincere thanks to MSPs Angus MacDonald, David Torrance, current Convener Johann Lamont, ex-convener David Stewart, Jackson Carlaw, particularly Alex Neil who asked key questions several times in the process, former MSPs Chic Brodie and John Wilson and all members of the Public Petitions Committee past and present who have given their considerable time, effort and input into this petition, have taken the time to study the evidence, and arrive at the conclusion transparency in the judiciary is a good thing, and not as Lord Carloway and Lord Gill claimed ‘unworkable’.”

This is a good day for the Scottish Parliament and for transparency.

The Sunday Mail print edition reported on the Petitions Committee backing for legislation to require judges to declare their interest, and also featured a report on Alex Neil MSP – who supports the judicial transparency proposals and is prepared to bring in a Members Bill to create a register of judges’ interests:

BATTLE TO BRING IN JUDGES’ REGISTER

Sunday Mail 25 March 2018

Ex-minister Alex Neil will defy Nicola Sturgeon with a bill forcing Scotland’s judges to declare their interests.

Holyrood’s petitions committee have asked the Government to legislate for a register which may include details of financial, professional and personal connections of judges, sheriffs and justices of the peace.

Sturgeon is expected to reject the committee’s recommendation. But Neil believes there is enough cross-party support to raise his own bill, in a rare act of SNP backbench rebellion.

He said: “If no bill is brought forward by the Government, I would intend to do so myself, as there is significant support from other MSPs.”

Former health secretary Neil backs the register after representing constituent Donal Nolan, who took Advance Construction to court over a land dispute.

It later emerged that judge Lord Malcolm sat on the case despite his lawyer son Ewen Campell acting for the construction firm.

Neil said: “If the committee decide to recommend a bill, it is absolutely necessary as I have seen from cases such as Nolan v Advance Construction where there were undeclared interests.”

The Scottish Sun print edition also reported on the Petition Committee’s backing for a register of judicial interests and Alex Neil MSP’s plan for a Member’s Bill:

JUDGE LIST IS BACKED

Scottish Sun 23 March 2018

MSPs defied Nicola Sturgeon yesterday by calling for judges to list their financial ties.

Holyrood’s cross-party Public Petitions Committee backed a register of interests for the judiciary.

Its convener Johann Lamont said the move was based on “principles of transparency and openness in public life”.

Top judge Lord Carloway claimed the register would hit recruitment and the Government has said it was “not needed”.

Last night Nats MSP Alex Neil warned if plans for the list are not backed he is “prepared to do it as a Member’s Bill”.

A further report in The National newspaper:

MSPs to call for judges’ register in Scotland after years-long campaign

Martin Hannan Journalist 22 March 2018

AFTER nearly six years and 25 sittings of evidence and debate on the petition to create a register of judges’ interests, The National has learned that the Holyrood Petitions Committee is set to recommend legislation to the Scottish Government.

The petition lodged by legal issues campaigner Peter Cherbi in 2012 called for a Register of Pecuniary Interests Bill and when it meets later today, the Petitions Committee will have a draft letter before it suggesting the Scottish Government brings in such a register.

Cherbi’s petition has been strongly supported by MSPs such as Alex Neil and equally strongly opposed by members of the judiciary led by the current and former Lord Presidents, Lords Carloway and Gill respectively, who said it could be harmful to judges and their recruitment.

Cherbi said last night: “Everyone apart from the judiciary, and apparently those with a desire on becoming a judge, gets the idea that judges should declare their interests in a register, just like everyone else in public positions.

“For the judiciary to have stalled this transparency proposal on their reasoning that judges should be given a pass from transparency just because they are judges does not fit in with modern life or expectations by the public of openness in government and the justice system.

“Two top judges have given evidence. Both adopted overwhelmingly aggressive positions to the idea that the same transparency which exists across public life, and which they are charged with enforcing in our courts, should be applied to them.


“Yet amidst their inferences that justice would shut down, judges could not be hired, and the world would stop turning, neither Lord Carloway nor Lord Gill could make a convincing case against creating a register of judicial interests.

“Prosecutors, police, court staff, even the legal aid board – all key parts of the justice system have registers of interest. Therefore there can be no exclusion from transparency for the most powerful members of the justice system – the judiciary itself.

“Who would have thought judges would have been so fearful of transparency and disclosing their own interests, that it would have taken six years for the Scottish Parliament to reach this stage of recommending legislation? Time now to take openness forward for our judiciary, which will ultimately help regain a measure of public confidence in the courts.

“This is a win win for Scotland. We as a team, petitioners, the media, Judicial Complaints Reviewers, those in our courts and even the legal profession who back this move – changed the judiciary’s expectations of openness and requirements of transparency.”

Previous articles on the lack of transparency within Scotland’s judiciary, investigations by Diary of Injustice including reports from the media, 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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CAPITAL SECRET: Crown Office block disclosure of financial costs in FIVE YEAR probe of collapsed £400m Heather Capital hedge fund linked to Scotland’s judiciary

Crown Office Hedge Fund probe secrecy. A FIVE YEAR investigation by the Crown Office & Procurator Fiscal Service (COPFS) into charges relating to a collapsed hedge fund – remains shrouded in secrecy after the case was axed, and with a recent decision to block disclosure of costs of the probe.

The collapse of the Isle of Man based Heather Capital Hedge Fund saw four persons charged after a three year long Police investigation –  in April 2013 – in connection with events relating to the broke £400million hedge fund.

Heather Capital launched in 2005 – attracting global investors, loaning money to fund property deals.

After the collapse of the hedge fund in 2010, Paul Duffy, the liquidator of Heather Capital – claimed that about £90 million was unaccounted for.

However, in February of this year, Lord Advocate James Wolffe QC quietly axed the lengthy five year investigation of the collapsed hedge fund and solicitors Gregory King & Andrew Sobolewski , accountant Andrew Millar and property expert Scott Carmichael.

In a response to a Freedom of Information request, the Crown Office has now refused to disclose any information in relation to the costs of the five year investigation into a collapsed hedge fund which saw four persons charged by Police Scotland in 2013.

The Crown Office were asked for information contained in the costs (figures) of the investigation by the Crown Office into charges against four persons in relation to the collapsed Hedge Fund Heather Capital.

When (date) the decision was taken to drop any action against the four persons charged in connection with above.

How many independent or other counsel & crown counsel served or worked on this investigation (and other COPFS staff, or others contracted in for this investigation (and their speciality role) – and their costs.

Information contained in any overseas travel (dates & destinations, costs of) in relation to this investigation.

Responding for the Crown Office, Christine Lazzarin claimed there was no costing available for the failed five year investigation, as the Crown Office intentionally does not monitor costs in investigations.

However, legal insiders have suggested costs around the five year investigation have run into millions of pounds,and that some felt the case was flawed from the outset due to ‘a lack of additional charges.

There are also claims a number of prosecutors & counsel became inactive, leaving the probe over the span of the five years.

Responding to the Freedom of Information request, Christine Lazzarin of the Crown Office ‘Information Unit’ wrote: In relation to your request I will firstly explain that the Crown Office and Procurator Fiscal Service (COPFS) does not routinely collate the total costs associated with investigating individual cases, and having made enquiries with our Finance Division I can advise that there are no COPFS costs recorded against the case reference allocated to this investigation.

By way of explanation there was no specific team created to investigate this case and all COPFS costs associated with the investigation will be addressed within the existing budgetary framework and not recorded separately. We do not therefore hold associated staffing costs in terms of Section 17 of FOISA. Additionally I can confirm that there was no overseas travel involved in this investigation.

The investigation was handled by staff within the COPFS Serious and Organised Crime Division (SOCD) in consultation with the COPFS International Co-operation Unit. The case was then reported to Crown Counsel to take a decision on whether to prosecute.

Following full and careful consideration of the facts and circumstances of the case, including the currently available admissible evidence, Crown Counsel instructed that there should be no proceedings at this time. The Crown however reserves the right to raise proceedings should further evidence become available.

It may be helpful if I outline the COPFS policy in relation to providing case related information in relation to a Freedom of Information request. Other than confirming that we do hold information, this information will not be provided to persons unconnected to a case under a Freedom of Information Act request. Information about a case will include sensitive personal data about the accused, victims and witnesses in terms of the Data Protection Act 1998, disclosure of which could constitute a breach of that legislation. Where disclosure of personal sensitive information would contravene the Data Protection Act, we are not required to disclose it under FOISA.

Having explained our general position you have asked for the date this decision was made and I can advise that I am unable to provide you with the information you have requested for the following reasons:-

The information is exempt in terms of section 34(1)(a) of FOISA because it is held by the Crown Office and Procurator Fiscal Service for the purposes of an investigation carried out by virtue of a duty to ascertain whether a person(s) should be prosecuted for an offence(s). This is not an absolute exemption and I have therefore considered whether the public interest favours disclosure of the information, notwithstanding the exemption. Although the public interest is not defined in FOISA it has been described as “something which is of serious concern or benefit to the public”. It has also been held that the public interest does not mean “of interest to the public” but “in the interest of the public”. The decision to take no proceedings at this time is already in the public domain but I do not consider that it is in the interests of the public to know the date the decision was made. Additionally as the Crown reserves the right to raise proceedings should further evidence become available in the future it would be inappropriate to release case related details over and above those already in the public domain.

I also consider that under section 38(1)(b) of FOISA, release of the information requested would contravene section 10 of the Data Protection Act 1998 as you are requesting details of a criminal case reported to COPFS against particular individuals. This is an absolute exemption and I am not required to consider the public interest test.

I hope you find this information helpful.

If you are dissatisfied with the way in which your request has been handled, you do have the right to ask us to review it. Your request should be made within 40 working days of receipt of this letter and we will reply within 20 working days of receipt. If you require a review of our decision to be carried out, please e-mail foi@copfs.gsi.gov.uk.

The review will be undertaken by staff not involved in the original decision making process.

If our decision is unchanged following a review and you remain dissatisfied with this, please note that although generally under section 47(1) of FOISA there is a right of appeal to the Scottish Information Commissioner, where the information requested is held by the Lord Advocate as head of the systems of criminal prosecution and investigation of deaths in Scotland, under section 48(c) no application can be made as respects a request for review made to the Lord Advocate. The information you have requested appears to fall into that category, although ultimately it would be for the Commissioner to decide whether that was the case should you refer the matter to him.

In circumstances where section 48(c) does not apply and the Commissioner accepts an appeal, should you subsequently wish to appeal against that decision, there is a right of appeal to the Court of Session on a point of law only.

While an investigation will be sought from the Scottish Information Commissioner’s office, previous attempts to have the SIC look at Crown Office blocking of Freedom of Information requests have fallen by the wayside – even when a request was made to investigate the Lord Advocate’s secrecy block on publication of the COPFS register of interests, more on which can be viewed here: DECLARE THE CROWN: Secrecy block on Crown Office Register of Interests – after fears info will reveal crooked staff, dodgy business dealings, prosecutors links to judiciary, criminals, drugs dealers and dodgy law firms

Although the Crown Office have refused to answer any questions on the status or costs associated with their five year investigation of the Heather Capital collapse, legal insiders have pointed to previous COPFS investigations and recent trials of financial frauds, where costs to the taxpayer have ran up to nearly ten million pounds.

One such case was the Mclaren property fraud case – which the Crown Office did everything in their power to avoid categorising as a “mortgage fraud” prosecution – after claims emerged the fraud duo once worked for, and had dealings with among others – a senior legal figure linked to one of the current top legal officers in the Crown Office.

In the McLaren case, Edwin McLaren, from Quarriers Village in Renfrewshire, was found guilty of property fraud totalling about £1.6m, convicted on 29 charges, and his wife Lorraine – on two charges.

The trial at the High Court in Glasgow began in September 2015 and heard evidence for 320 days.

Reports in the media quoted costs of around £7.5m, with more than £2.4m in legal aid paid for defence lawyers.

However, legal insiders claim the investigation by COPFS prior to the trial of the McLarens also ran into millions of pounds.

Similarly, with the complexity of the Heather Capital collapse – at £400million – the trail of money and international capital transfers – the costs of the Crown Office five year Heather Capital probe are likely to be at least equal to, or significantly higher than the investigation into the McLaren property fraud prior to that case going to trial.

HEATHER CAPITAL £28M CIVIL CLAIM ENDS:

Solicitor Peter Black Watson, formerly of Glasgow law firm Levy & Mcrae –  was linked to the collapsed hedge fund in a now abandoned £28million civil claim.

However, it has been previously reported part time Sheriff Peter Watson was suspended in February 2015 by Scotland’s top judge – Lord Brian Gill “to maintain public confidence in the judiciary”

A statement from the Judicial Office for Scotland issued after a newspaper asked for a comment, stated: Sheriff Peter Watson was suspended from the office of part-time sheriff on 16 February 2015, in terms of section 34 of the Judiciary and Courts (Scotland) Act 2008.

“On Friday 13 February the Judicial Office was made aware of the existence of a summons containing certain allegations against a number of individuals including part-time sheriff Peter Watson.

The Lord President’s Private Office immediately contacted Mr Watson and he offered not to sit as a part-time sheriff on a voluntary basis, pending the outcome of those proceedings.

Mr Watson e-mailed a copy of the summons to the Lord President’s Private Office on Saturday 14 February.

On Monday 16 February the Lord President considered the matter.

Having been shown the summons, the Lord President concluded that in the circumstances a voluntary de-rostering was not appropriate and that suspension was necessary in order to maintain public confidence in the judiciary.

Mr Watson was therefore duly suspended from office on Monday 16 February 2015.”

Peter Watson now has his own law business, PBW Law – also based in Glasgow.

Watson, and his former law firm named in the Heather Capital writ – Levy and Mcrae –  also currently represent the Scottish Police Federation – who in turn represent all Police Officers in Police Scotland.

Investigations by the media also show that suspended Sheriff Peter Watson represented, among others – Lord Advocate Elish Angiolini – during her term as Lord Advocate.

Watson’s other clients included Alex Salmond, Stephen Purcell, Yorkhill Hospital Board – which has now changed it’s name to Glasgow Children’s Hospital Charity – of which Watson is chair, of the board and Rangers Chiefs.

In Court documents published online by the Scottish Court Service, it is noteworthy that during the tenure of Lord Advocate Elish Angiolini – who was Lord Advocate from 12 October 2006 – 30 April 2011, significant transfers of capital from Peter Watson’s law firm – Levy & Mcrae – took place to Panamanian and Gibraltar registered companies.

Records from the Court of Session reported:

On 4 January 2007, HC transferred £19 million to its client account with Levy and Mcrae.

On 24 January 2007, HC transferred £9.412 million to its client account with Levy and Mcrae.

On 9 January 2007, Levy and Mcrae transferred £19 million to a Panamanian company (Niblick) owned and controlled by Mr Levene:the money was not therefore transferred to WBP.The transfer was undocumented and without security.

On 29 March 2007, Levy and Mcrae transferred £9.142 million to Hassans, solicitors, Gibraltar, under the reference “Rosecliff Limited” (a company controlled by Mr King):the money was not therefore transferred to WBP.The transfer was undocumented and without security.

A full report on the now abandoned £28million civil claim case against Peter Watson & Levy & Mcrae, and Lord Carloway’s consideration of Watson’s continuing suspension from the judicial bench can be found here: CAPITAL NUDGE: Scotland’s top judge Lord Carloway to consider status of de-benched Sheriff Peter Watson – suspended for a record THREE YEARS over £28million writ linked to collapsed £400m hedge fund Heather Capital

 

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NORWAY, M’LORD: Judicial interests register of Norway cited as example to follow for Holyrood MSPs six year investigation to create a register of judges’ interests in Scotland

Norway’s judicial interests register cited as example for Scotland. A SIX YEAR Scottish Parliament investigation to create a register of judicial interests for judges of the Judiciary of Scotland – should follow the model used by an operational judicial register in Norway which has been in use for some years.

Unlike in Scotland, where judges have lobbied to remain exempt from public transparency of their interests, the Courts of Norway have operated a Register of extra-judicial activities for many years, which lists jobs, investments and other interests of members of the Norwegian judiciary.

The website of the Courts of Norway states that “The rules on registration of interests apply to all judges, including deputy judges.”

“Full-time and provisional judges are covered if appointed or employed for a period exceeding one month. ‘Interests’ cover membership, offices or other forms of commitment other than a company, organisation, association or body of the state, county or local authority.”

The Norway model has been put forward to members of the Scottish Parliament’s Public Petitions Committee – as an example of an operating register of judicial interests in a country close to Scotland which should be included in the evidence base accumulated by Holyrood over the past six years of studying how to move forward on legislation to create a register of interests for all judges in Scotland.

A register of judicial interests for Scotland would include all judges – from the Lord President, down to Justices of the Peace, and members of tribunals.

On Thursday, 22 March 2018, the Public Petitions Committee will hold the 25th hearing to discuss Petition PE1458: Register of Interests for members of Scotland’s judiciary.

A further request has been filed with the Public Petitions Committee to contact Norway’s judiciary, seeking  material and information on how their register operates, and any insight the Norwegian judiciary & Government hold on how the register has benefited their judiciary and justice system.

A late submission to the Public Petitions Committee states: “Given the six years of evidence collected by the Scottish Parliament on the merits of creating a register of judicial interests for Scotland, to have evidence from a working register of interests as part of the public debate and the Parliamentary record of this petition is a worthwhile step to take.”

“While the recusals register does not tell the full story on conflicts of interest, having up until now, carefully avoided any mention of financial conflicts of interest & disclosures relating to instances where judges have been asked to recuse but have failed to do so, the recusals register is again, another indicator that an accurate, updated and fully published register of judicial interests is beneficial to the public, court users, and public scrutiny of the judiciary.”

Readers can View here the Register of extra-judicial activities from the Courts of Norway website.

The judicial interests petition – filed at Holyrood in October 2012 and 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 report containing video footage of every hearing, speech, and evidence sessions at the Scottish Parliament on Petition PE1458 can be found here: Scottish Parliament debates, speeches & evidence sessions on widely supported judicial transparency petition calling for a Register of Interests for Scotland’s judiciary.

MSP at Holyrood have previously heard over sixty two submissions of evidence, during twenty one Committee hearings, and a private meeting between two MSPs and a top judge, and two private meetings since early December 2017 to decide a way forward on their six year investigation.

Cross party support for the Petition at the Scottish Parliament saw fifteen speeches by MSPs during a full Holyrood debate spanning from 2012 to 2018.

The move to create a register of judicial interests enjoys cross party support, is widely supported in the media and  in public debate as a result of media coverage.

The petition secured early support of Scotland’s Judicial Complaints Reviewer Moi Ali, and her successor – Gillian Thompson.

Moi Ali – who served as Scotland’s first Judicial Complaints Reviewer (JCR) – appeared before the Public Petitions Committee of the Scottish Parliament in a hard hitting evidence session during September of 2013, giving early backing to the proposals calling for the creation of a register of judicial interests.– reported here: Judicial Complaints Reviewer tells MSPs judges should register their interests like others in public life.

Scotland’s second Judicial Complaints Reviewer Gillian Thompson OBE also supported  the petition and the creation of a register of judicial interests during an evidence session at Holyrood in June 2015.

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.

Video footage and a full report on Lord Brian Gill giving evidence to the Scottish Parliament in November 2015 can be found here: JUDGE ANOTHER DAY: Sparks fly as top judge demands MSPs close investigation on judges’ secret wealth & interests – Petitions Committee Chief brands Lord Gill’s evidence as “passive aggression”

Video footage and a full report on Lord Carloway (Colin Sutherland) giving widely criticised evidence to the Scottish Parliament in July 2017 can be found here: REGISTER TO JUDGE: Lord Carloway criticised after he blasts Parliament probe on judicial transparency – Top judge says register of judges’ interests should only be created if judiciary discover scandal or corruption within their own ranks

NORWAY: A register of judges’ interests Scotland could adopt, and improve upon:

THE COURTS OF NORWAY:

To ensure that no one is any doubt about the impartiality of a judge in a case, there is a ‘register of extra-judicial activities : View the Register of extra-judicial activities (pdf)

This lists honorary posts, investments etc. that a judge may be engaged in alongside his/her duties as a judge. The purpose of the register to ensure full openness. This page provides details of what is registered and how to search the register.

The rules on registration of interests apply to all judges, including deputy judges. Full-time and provisional judges are covered if appointed or employed for a period exceeding one month. ‘Interests’ cover membership, offices or other forms of commitment other than a company, organisation, association or body of the state, county or local authority.

What is registered?

The rules basically require all interests to be registered with the exception of:

  • Membership of political parties, religious communities, stakeholder organisations and non-profit organisations.

  • Offices and the like in non-profit organisations with fewer than 100 members.

  • One-off lectures and the like.

What should be registered:
  • Investments in individual companies exceeding NOK 200,000 at the time of investment or ownership exceeding 10% of the company. The duty to register does not cover bank accounts, unit trusts or the like. The size of investment does not have to be registered.

  • Honorary posts in associations, societies, organisations or political parties with over 100 members.

  • Membership of brother- or sisterhoods, e.g. the Freemasons or Odd Fellow.

  • Employment in private or public sector companies.

  • Participation in committees, boards or the like set up by the public sector. The same applies to private arbitration boards or the equivalent.

  • Other involvement, e.g. in education, exam censor, authorship, arbitration or other types of activity.

  • The last position held before being appointed as a judge.

An interest should be deleted from the register when more than three years have passed since it ended.

How Norway’s Judiciary works:

Background:

Independence of the Courts

The independence of the Courts of Justice protects all citizens against arbitrary decisions and abuses committed by other branches of state power, This independence is a consequence of Norway being a constitutional democracy. The Constitution sets clear limits on legislative and executive power even when decisions are carried by a majority vote.
Control of the other branches of state power

The Courts of Justice exert a control function regarding new laws and changes to existing laws that are proposed by the National Assembly. If a law is against the Constitution by, for example, violating the constitutional rights of one or many citizens, a court may set aside the law in any trial where such rights are deemed to have been violated. In a case brought before the Supreme Court where two or more judges deem that a specific law breaks the constitution the case is settled in a plenary meeting of the Supreme Court. This may result in the Supreme Court setting aside the law in question in the settlement of the case.This implies that the Supreme Court through its rulings can control or limit the legislative power of the National Assembly. This control or limitation by the Supreme Court has only occurred on very rare occasions.

In concrete cases the Courts of Justice also have the authority to check on decisions made by the government or other subordinate administrative bodies. In such cases the Courts of Justice will decide whether the administration has remained within the framework of the law, whether the resolution is based on accepted facts and correct proceedure, and that the administration’s judgement is not improper or seriously unreasonable. If such errors have occurred, an administrative pronouncement can be ruled invalid by the Courts of Justice. However, it should be noted that such a ruling can only occur in response to an actual dispute brought before a court.

How independence is guaranteed

According to our Constitution judges’ decisions in each and every case are to be independent of external influence. Judges’ verdicts cannot be instructed or influenced. The decisions of the Supreme Court cannot be rejected or altered by other authorities.

Over the last few decades the situation has changed somewhat. The influence of international courts of justice has grown, especially regarding the international conventions on human rights. Amongst others, the Court of Human Rights in Strasbourg plays an important role in the development of law and jurisdiction in Norway. When, in future, the Court of Human Rights interpretes the convention differently from the Supreme Court the Norwegian Supreme Court must act in accordance with the guidelines and rulings made in Strasbourg. So even though the Supreme Court is the ‘last instance’, the Supreme is obliged to take into consideration the decisions of the Court of Human Rights.

A verdict can only be altered by a superior court of justice after an appeal proceedure. In criminal cases the usual deadline for appeal is 14 days after the verdict is handed down. In civil cases the deadline is one month. A superior court on its own initiative cannot instruct a subordinate court on its proceedings in any one specific case. However, if one party makes an appeal or an interlocutory appeal against a verdict, the court of justice processing the appeal may rule that the subordinate court must process the case again. The subordinate court must then abide by the interpretation of the law which constitutes the basis for the superior court’s ruling.

The National Assembly (Stortinget) passes general laws which the Courts of Justice apply in all cases heard in court. The Courts of Justice are independent in their interpretation of the law. This means that the courts, headed by the Supreme Court, have a a great influence on how the letter of each law is applied in each individual case. Furthermore, there exists large areas of the law wherecourt rulings and interpretations have developed or evolved contemporary law and jurisdiction.

The Courts of Justice and all judges must be protected from external influence over rulings and verdicts. For a state to be democratic and legal the judges must be both independent and impartial with regards disputing parties and all interests represented by such parties. The parties in a case may request a judge to step down if the judge in question has any connection with the case or the individual parties which might raise doubts over the impartiality or independence of the process. Judges have a personal responsibility to ensure that they do not give grounds for disqualification in any individual case.

Although the independence of the courts is guaranteed by the Constitution, all courts are not insulated from democratic developments insociety.The National Assembly passes regulations relating to the organisation of the courts, for example: how many courts shall be provided throughout the nation, where they shall be situated, the number of presiding judges for each court and the proceedure for appointing judges. All of the latter are practical matters reflecting the ever changing developments in society. The Courts of Justice are administratively subordinate to the independant Norwegian Courts Administration (NCA).

Judges cannot be dismissed

Judges appointed according to the constitutional regulations have, like other civil servants, an especially protected employment status according to § 22 of the Constitution. They hold permanent positions and cannot be dismissed or moved against their will. They can only be dismissed following a court hearing and a verdict of guilty. Permanently appointed judges can be suspended, but such a decision can only be carried out by the King in cabinet. Civil or criminal proceedings to remove a judge must be started immediately following the King’s decision to suspend a judge. Like other civil servants permanent judges can be punished for breaking the law while carrying out their duties or for offences committed outside their workplace. However, the decision about whether to prosecute for offences relating to a judge’s duties may only be taken by the King in cabinet. Permanently appointed judges cannot be indicted for public order offences according to the regulations for all civil servants. Supreme Court judges enjoy even stronger protection and can only be removed through an impeachment process.

Judges are guaranteed protection of office to enable them to make rulings and give verdicts that may be unpopular, judges have to be free of the fear of dismissal because their decisions are not supported by the authorities or by other judges. By granting judges such a secure position, all parties appearing in court are ensured an independent and impartial ruling from the Courts of Justice.

What does it mean to be a lay judge in a norwegian court? (film)

The Courts must have the people’s confidence

The decisions of judges often have great significance for many individual citizens. It is a vital requirement in a state governed by law that all the citizens of that state respect a court’s ruling as well as the laws on which such rulings are based. The courts need the trust of the people in order to maintain their authority and legitimacy. It is the legitimacy and the authority of a court which ensures that rulings are respected. The credibility of the courts must not be weakened by the perception that courts can be influenced by any external pressure.

In order for the courts to be able perform in a free and independent manner it is necessary that they have sufficient professional and economic resources to be able to fulfil their tasks.

Both the costs and the duration of court proceedings can have a negative effect on whether an ordinary citizen will take their case to court. An efficient rather than a long drawn out processing of cases is itself a guarantee of legal protection. “Justice delayed is justice denied”. The issue of reducing the duration of case processing has received a great deal of attention in recent years in Norway. Norwegian courts are now among the most efficient in Europe in this context.

A brief history of the Norwegian courts

The Viking Age

We know that there were legislative, judicial and executive authorities as early as the 10th century. In those days the kinship group was the most important executive power; crimes and conflicts were resolved by negotiation between the kin-groups, often involving agreement on the penalty. In the course of the 11th century there developed local and regional assemblies (bygdeting and lagting), which also functioned as courts; the Norwegian word ting still means both. Their most important function was to reach solutions to various disputes and their formation was driven by population growth, bigger districts and increased collaboration between districts. King Håkon I “the Good” changed the composition of the assemblies from universal attendance to representation by delegates. The most famous regional assemblies from that period are the Gulating for Western Norway and the Frostating for the Trøndelag in the middle of the country. The Hålogaland, Eidsivating and Borgarting assemblies developed in the 12th and 13th centuries, but never achieved the same influence as Gulating and Frostating. Legislative codes from the Gulating and Frostating were rediscovered in modern times. The development of the assemblies and the discovery of the codes clearly show that the rule of law was well on the way to becoming centralised as early as the 12th century.

The most usual legislative instance at that time was customary law: that is to say, there were many rules of law, but not laid down by any public authority. Customary or common law is still in use today not only in international law, but also in national areas such as constitutional and administrative law, some parts of private law and the law of damages.

The High Middle Ages

In the course of the High Middle Ages the king acquired more power, and ultimately discharged all three roles – legislative, judicial and executive. The Church also had a role in all three areas, resulting in a constant tug-of-war for supremacy. The need for codification increased, and in 1274, under king Magnus VI “Lawmender” the old regional laws were reworked and called the National Law (Landsloven). This was meant to be authoritative for the regional courts and to some extent for the district courts.

The Law was regarded as an administrative unification of Norway, the political unification being traditionally dated to 1030. The National Law also involved amendments to the judicial and executive aspects of the legal system, such as royally appointed court presidents (lagmenn) to chair the proceedings between the parties. More higher courts (lagting) were created, and sited in towns or other centres. Crime was no longer conceived as an offence against the kin-group, but as against the King. The period saw not only the beginnings of centralisation, but also of bureaucratising and professionalisation.

The Union period

Norway was in union with Denmark, and intermittently with Sweden too, from 1390 to 1814, a period in which the Norwegian legal system saw further professionalisation. Norwegian cases began in the city or district court, proceeded to the higher courts and finally to the Overhoffretten in Oslo, from 1624 called Christiania. After Denmark created a Supreme Court in 166 1, Norwegian cases could be appealed there.

The Danes had little knowledge of Norwegian laws and legal thinking, and therefore settled cases by their own laws. The Supreme Court was subject to the king, and until 1771 all decisions made by the Supreme Court were to be reviewed by him. In 1771 this review power was abolished, except for death sentences. In the course of the Danish Union, attempts were made to increase the distinction between the judicial and executive powers, at the same time as the king maintained his position as the fount of legislation.

The National Law promulgated under Magnus “Lawmender” was still applicable law in Norway. As the 17th century progressed a need was felt to update it, leading to the Norwegian Law (Den norske lov) of 1687, which was to a certain extent based on the Danish code of 1683. The Supreme Court in Denmark could now deal with two legal codes that were more or less similar.

The separation of powers and the Norwegian Constitution

The principle of “separation of powers” – that is, between the legislative, executive and judicial functions – was formulated by the French philosopher Montesquieu. Montesquieu’s separation of powers was central to the Norwegian constitution of 1814, adopted after that year’s separation from Denmark. The King was the executive power, the Storting the legislative power and the courts the judicial power. The Norwegian constitution was more liberal than many others, inter alia being based on the principle of popular sovereignty.

Norway acquired its own Supreme Court in 1815. The Norwegian constitution remained in force after the young state entered a union with Sweden, and so the final Norwegian independence in 1905 did not represent any change in the Norwegian legal system. During the German occupation of 1940-45 the Supreme Court resigned, and judges were appointed who were loyal to the occupiers. Neither the judges nor their decisions from this period were recognised after Liberation.

Previous articles on the lack of transparency within Scotland’s judiciary, investigations by Diary of Injustice including reports from the media, 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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CAPITAL NUDGE: Scotland’s top judge Lord Carloway to consider status of de-benched Sheriff Peter Watson – suspended for a record THREE YEARS over £28million writ linked to collapsed £400m hedge fund Heather Capital

Lord Carloway considering status of suspended Sheriff linked to collapsed Hedge Fund. A JUDGE who has been suspended from the Judiciary of Scotland for a record THREE YEARS – after being named in a £28million writ linked to the collapse of a £400m Hedge fund – remains suspended despite the closure of the civil claim.

Now, Lord Carloway (Colin Sutherland) – Scotland’s most senior judge – is now said to be considering the position of part time Sheriff Peter Black Watson (64) – after the liquidator of Heather Capital Paul Duffy of EY – mysteriously abandoned the £28m action against Glasgow law firm Levy and McRae solicitors – in which Peter Watson was once a partner.

Peter Watson was suspended from the Judiciary of Scotland more than three years ago on February 16, 2015 – after the then Lord President, Lord Brian Gill, was informed by a journalist of the claims in the case against Levy and McRae, and specifically against Watson, over Heather Capital’s collapse in 2010.

The move came after allegations surfaced in a £28million writ naming part time Sheriff Peter Black Watson – and his former law firm Levy and Mcrae, and a number of individuals under investigation in connection with the £400million collapse of Heather Capital.

In response to queries from the media in February 2015 on the contents of the writ – the Judicial Office subsequently issued a statement confirming Lord Brian Gill  had suspended Sheriff Peter Black Watson (61) on 16 February 2015.

The suspension came after Gill demanded sight of the writ.

Responding to the Lord President’s request, Watson then offered to step aside temporarily – while the litigation concluded – however a Judicial Office spokesperson said “The Lord President concluded that in the circumstances a voluntary de-rostering was not appropriate and that suspension was necessary in order to maintain public confidence in the judiciary.”

A statement from the Judicial Office for Scotland read as follows: Sheriff Peter Watson was suspended from the office of part-time sheriff on 16 February 2015, in terms of section 34 of the Judiciary and Courts (Scotland) Act 2008.

“On Friday 13 February the Judicial Office was made aware of the existence of a summons containing certain allegations against a number of individuals including part-time sheriff Peter Watson.

The Lord President’s Private Office immediately contacted Mr Watson and he offered not to sit as a part-time sheriff on a voluntary basis, pending the outcome of those proceedings.

Mr Watson e-mailed a copy of the summons to the Lord President’s Private Office on Saturday 14 February.

On Monday 16 February the Lord President considered the matter.

Having been shown the summons, the Lord President concluded that in the circumstances a voluntary de-rostering was not appropriate and that suspension was necessary in order to maintain public confidence in the judiciary.

Mr Watson was therefore duly suspended from office on Monday 16 February 2015.”

Watson’s former law firm –  Levy & McRae, was one of several companies being sued by Heather’s liquidator, Ernst & Young, after the fund’s collapse in 2010.

Watson was also a director of a company called Mathon Ltd – a key part of the Heather empire.

The collapsed hedge fund Heather Capital – run by lawyer Gregory King was the subject of a Police Scotland investigation and a FIVE YEAR probe by the Crown Office.

However, in early February, the Crown Office coincidently confirmed there would be no prosecutions in the cases of the four individuals  – lawyers Gregory King & Andrew Sobolewski, accountant Andrew Millar and property expert Scott Carmichael – who were charged by Police Scotland in connection with a Police investigation of events relating to the collapse of Heather Capital.

Peter Watson now has his own law business, PBW Law.

Watson, and his former law firm named in the Heather Capital writ – Levy and Mcrae –  also represent the Scottish Police Federation.

Responding to queries from reporters, a  spokesperson for the Judicial Office said: “The action, in which suspended part time Sheriff Peter Watson was among the defenders, has settled.  An interlocutor to that effect has been issued.  The Lord President will consider what, if any, steps now require to be taken‎.”

Despite EY’s withdrawal of the £28million claim against Levy and Mcrae & Peter Watson, detailed claims in the Court of Session revealed the following:

[21]      In the Levy Mcrae case:

  • On 4 January 2007, HC transferred £19 million to its client account with LM (Lord Doherty paragraph [5]).
  • On 24 January 2007, HC transferred £9.412 million to its client account with LM (Lord Doherty paragraph [5]).
  • The money was intended to be loaned to a first level SPV Westernbrook Properties Ltd (WBP) for onward lending to second level SPVs (Lord Doherty paragraph [5]).
  • On 9 January 2007, LM transferred £19 million to a Panamanian company (Niblick) owned and controlled by Mr Levene:the money was not therefore transferred to WBP.The transfer was undocumented and without security (Lord Doherty paragraph [5], and Condescendence 6 and 17, pages 20 and 44 of LM reclaiming print).
  • By a memorandum dated 17 March 2007, HC’s auditors KPMG “identified a number of concerns relating to the documentation provided in respect of these loans”.Further work and information was required (Condescendence 5, page 13 of LM reclaiming print).
  • On 29 March 2007, LM transferred £9.142 million to Hassans, solicitors, Gibraltar, under the reference “Rosecliff Limited” (a company controlled by Mr King):the money was not therefore transferred to WBP.The transfer was undocumented and without security (Lord Doherty paragraph [5], and Condescendence 6 and 17, pages 20 and 44 of LM reclaiming print).
  • In April to June 2007, amounts equivalent to the loans thought to have been made to WBP (including accrued interest) were “repaid” to HC via Cannons, solicitors, Glasgow.The directors were unable to ascertain the source of these repayments (Lord Doherty paragraph [7]).
  • Approaches made by HC to Mr Volpe and Triay & Triay, a firm of solicitors in Gibraltar, were met with a total lack of co-operation (Lord Doherty paragraph [8]).
  • At a board meeting on 6 September 2007, “KPMG could not approve HC’s accounts … Santo Volpe had executed certain loans to SPV companies where non‑standard procedures had been followed which meant that inadequate security had been given for some loans … Gregory King stated that the loans to the SPVs had been repaid in full in May 2007” (Condescendence 5, page 13 of LM reclaiming print).
  • By email to a non‑executive director of HC (Mr Bourbon) dated 7 September 2007, Mr McGarry of KPMG referred to the previous day’s board meeting, and expressed concerns about the situation.He asked for further information, namely “all possible evidence regarding the movement of monies out of Heather Capital into these SPVs and onwards to whatever purpose the funds were applied – ie, sight of bank statements, payment/remittance instructions, certified extracts from solicitors clients’ money accounts etc”.(It should be noted that, contrary to HC’s averment in Condescendence 5 at page 13C‑D of LM reclaiming print, the email did not restrict the inquiries requested to “explaining what information was required from Santo Volpe”:the request was much broader.)
  • In October 2007 the non‑executive directors of HC met with the Isle of Man Financial Services Commission (FSC) to discuss “the issues” (Lord Doherty paragraph [8]).A director also disclosed the suspicious activity and Mr Volpe’s obstruction to the Isle of Man Financial Crime Unit (FCU), who said they would investigate (Condescendence 5 page 14 of LM reclaiming print).The auditors KPMG carried out an additional full scope audit.
  • By letter dated 18 October 2007, FSC wrote to the directors of HC setting out further information which they required.
  • By letter dated 26 November 2007 Mr King advised the HC board that “some sort of fraud had been deliberately introduced with invalid land registry details on a number of the loans”.He stated that he had applied pressure to Mr Volpe and Mr Cannon, whereupon there had been “full repayment of the loans with relevant interest” which meant that “investors were secure”.
  • On 17 December 2007, KPMG signed the accounts and added a completion note using language such as “The risk of fraud increased to high as a result of the documentation issues surrounding the SPVs, where some form of fraud appeared to have been attempted”.In their audit report opinion, they stated “We have been unable to verify where funds advanced to the SPVs were invested.In addition, we were supplied with false documentation in relation to the SPVs which appears to have been a deliberate attempt to mislead us.Given these loans were repaid in the period, we consider that the effect of this is not so material and pervasive that we are unable to form an opinion on the financial statements [opting instead for express qualifications that loan and security documentation could not be validated] … There is uncertainty as to where the monies lent to the [SPVs] were then subsequently invested … Investigations continue to determine what party (or parties) were involved in and were accountable for these events, and whether any action should be taken against them …” (Lord Doherty paragraph [9]).
  • By letter to HC dated 4 January 2008, KPMG gave serious warnings about their inability to validate loan and security documentation, and lack of evidence as to the purpose for which the money advanced to SPVs was applied.In their words:

“ … Our report is designed to … avoid weaknesses that could lead to material loss or misstatement.  However, it is your obligation to take the actions needed to remedy those weaknesses and should you fail to do so we shall not be held responsible if loss or misstatement occurs as a result … [Having explained the disappearance of the funds and the apparent repayments, on which legal advice had been received, KPMG warned] … these matters are extremely serious … an attempted fraud appears to have been perpetrated … We would recommend that the Board continue their investigation into this matter and formally document their decision as to whether or not to inform the criminal justice authorities …”

A full copy of a court opinion detailing these and other claims with regards to a further case against Burness Paull LLB  – which coincidently also collapsed earlier last year – can be viewed here: Court of Session allows proof against Levy & Mcrae and Burness Paull LLP in Heather Capital case as liquidators attempt to recover cash from collapsed £280m hedge fund.

In the motion of abandonment filed by EY & Heather Capital, heard in the Court of Session on 28 February before Lord Glennie, Lady Paton & Lady Clark of Calton, Lord Glennie’s opinion sums up matters in relation to issues in the Heather Capital case, which linked claims of financial wrongdoing directly to Scotland’s judiciary – who, ultimately heard and ruled on the case.

Lord Glennie stated in his opinion:

[97]      I have had the advantage of reading in draft the opinions to be given by Lady Paton and Lady Clark of Calton.  I agree with them and, for the reasons they give, I too would allow parties a Proof Before Answer of all their averments on record preserving all pleas. 

[98]      I would wish to add two comments of my own. 

[99]      The main focus of the debate in each case was whether the pursuer, HC, had made sufficient and relevant averments of “reasonable diligence” for the purposes of section 11(3) and the proviso to section 6(4) of the 1973 Act.  In both cases the Lord Ordinary held that HC had not said enough and in sufficient detail to justify sending the matter to a Proof Before Answer.  The matter could be determined on the pleadings.  Lady Paton has explained why we take a different view.  But I have a more general concern about this approach. 

[100]    In his note of argument in the LM case, under reference to cases such as John Doyle Construction Ltd v Laing Management (Scotland) Ltd 2004 SC 713 at pages 722 – 723 and Watson v Greater Glasgow Health Board [2016] CSOH 93 at paragraphs 22-23, Lord Davidson QC was at pains to remind us that the purpose of pleading is to give fair notice of the assertions of fact sought to be established in the evidence as well as to identify the essential propositions of law on which a party founds.  Elaborate pleading is unnecessary in any action, not just in a commercial action.  The purpose of the pleadings is to give notice of the essential elements of the case.  The pleadings should set out the bare bones of the case.  They are not the place to set out in full the evidence intended to be adduced.  In the present cases that appears to have been overlooked.  To that extent I have some sympathy with Lord Davidson’s submission.  The Closed Record in the BP action, as it appears in the Reclaiming Print, runs to some 59 pages, while that in the LM action extends to 93 pages.  This has happened, so it seems to me, because in their pleadings parties have indulged in a process akin to trial by pleading.  The defenders have made averments of fact intended to undermine the pursuer’s case on reasonable diligence; the pursuer has responded by making further averments addressed to those points;  this in turn has caused the defenders to make further averments or raise further questions;  the pursuer has tried to answer by making yet further averments;  and this is constantly repeated until parties are finally exhausted.  The process resembles one of cross examination and response, a process for which pleadings are quite unfitted.  I do not seek to apportion blame.  In a case such as this, the temptation to pile pressure on to the pursuer by pleading a wealth of detail is difficult to resist;  and a pursuer who does not respond in kind runs the risk of being thought to have no answer to the points which have been raised.  Difficulty arises when the matter comes to debate on the question of whether, for example, the pursuer has made sufficiently relevant and specific averments that it “could not with reasonable diligence have been aware” that loss had occurred (section 11(3)) and that it could not “with reasonable diligence have discovered” the fraud or error induced by the debtor which induced it to refrain from making a relevant claim at an earlier stage (section 6(4), proviso).  Points are made in argument about the failure to take certain steps or to follow up on the particular line of enquiry;  and the Lord Ordinary is invited to form a view that what was done was insufficient or that the reasons given for not doing it are inadequate.  Such an invitation should, in my view, be resisted save in the most obvious case.  The judgments which the court is being asked to make are essentially value judgments, assessments of the reasonableness or otherwise of a party’s conduct.  Such judgments should seldom if ever be made on the basis of the pleadings without hearing evidence.  It may seem obvious, on paper, that something ought to have been done or that a line of enquiry ought to have been pursued; but when evidence is led it might seem less obvious, or there might be good reasons for not taking that course.  It is not the function of pleadings to set out every reason why each relevant individual took or did not take any particular step.  In many cases issues of credibility and reliability might arise, the evidence may be far more nuanced than it is possible to convey on paper, explanations may be given more fully and persuasively than can come over in the pleadings, and some of the criticisms may, in light of all the evidence, be seen to be informed by hindsight.  I should emphasise that I make these observations without reference to any of the particular points decided in the particular cases with which we are here concerned.  But it does seem to me that the cases with which we are concerned illustrate the danger of the court being drawn into deciding cases on detailed averments of fact when it would be more appropriate that all the evidence be heard before any decision is made. 

[101]    The other comment I would wish to make concerns the question of whether the claims advanced in both actions on the basis of the existence of a trust are subject to the 5‑year prescriptive period in section 6 of the 1973 Act or are subject to the 20-year long negative prescription in section 7.  This matter was discussed by Lord Doherty in the LM action at paragraphs [25]-[31].  He concluded that the obligation of a trustee to produce trust accounts is an imprescriptible obligation;  that the liability to make payment of the sum found due in an accounting for trust funds is subject only to the long negative prescription;  and that the obligation of a trustee to restore the value of trust property paid away in breach of trust is also subject only to the long negative prescription.  The matter was not discussed by Lord Tyre in the BP case for reasons which are slightly unclear – matters appear to have proceeded in that debate on the basis that all obligations were subject to the 5-year prescriptive period and that the only issues in that respect concerned the pursuer’s case on sections 6(4) and 11(3) – but it was not suggested before us that the point is not live in that action too.  Detailed submissions on the point were made by Mr Duncan QC on behalf of LM and adopted by Mr Dunlop QC on behalf of BP.  Lord Davidson QC responded on behalf of HC.  I, for one, was grateful for their submissions.  It emerged in the course of those submissions, as it had to some extent at the debate in the LM case, that not only was there a dispute as to the law to be applied in a case of accounting and/or breach of trust but there was also a dispute as to whether the circumstances of the present cases gave rise to a relationship of trust at all or, alternatively, a trust of a kind intended to be excluded from the 5-year short negative prescription.  In light of this, it seems to me that it would be desirable that all of the relevant facts be determined before the issues are decided.  For that reason, and for the reasons given by Lady Paton in paragraph [80] of her opinion, I am persuaded that it would be premature to attempt to decide these points at this stage.

COLLAPSE OF FIVE YEAR CROWN OFFICE PROBE:

In a further twist to the Heather Capital saga, a FIVE YEAR probe by the Crown Office & Procurator Fiscal Service (COPFS) collapsed just a few days before the collapse of the £28million writ against Levy and Mcrae, & Peter Watson.

A report by journalist Russell Findlay revealed: CROWN prosecutors will take no action against four men following a fraud probe into a collapsed £400 million finance firm.

Lawyer Gregory King, 49, and three others were reported to the Crown by detectives who investigated his hedge fund Heather Capital which was based in the Isle of Man.

Heather, launched by King in 2005, attracted investors from around the world and loaned money to fund property deals.

Following its 2010 collapse, Heather’s liquidator Paul Duffy claimed that around £90million was unaccounted for and a police fraud probe resulted in the four men being reported to the Crown Office in April 2013.

An Isle of Man court judgement likened Heather to a ‘Ponzi’ scheme, made famous by US financier Bernie Madoff who was jailed for 150 years in 2009.

The other three reported by police were lawyer Andrew Sobolewski, of Bridge of Weir, Renfrewshire, Andrew Millar, of ­Cambuslang, near Glasgow, and Scott ­Carmichael, of Thorntonhall, near Glasgow.

Last year there was criticism of the Crown for taking so long to consider the case but after almost five years it has now dropped the case.

A Crown Office spokesman said: “Following full and careful consideration of the facts and circumstances of the case, including the currently available admissible evidence, Crown Counsel instructed  that there should be no proceedings at this time.

“The Crown reserves the right to raise proceedings should further evidence become available.”

The Scottish Sun reported on the serving of the £28million civil writ which named lawyer Peter Black Watson – back in February 2015, here:

The Scottish Sun reports:

WRIT HITS THE FAN

FIRM FIRM SLAPPED WITH COURT SUMMONS – Top legal outfit in megabucks lawsuit

Practice is linked to bust hedge fund – Briefs with ties to big business and high-profile clients

By RUSSELL FINDLAY Scottish Sun 15 February 2015

A TOP law firm has been hit with a multi-million pound writ linked to a finance company at the centre of a fraud investigation.

Legal practice Levy & McRae — which acts for footballers, politicians, cops and newspapers — faces the claim over its role in connection with £400million investment scheme Heather Capital.

It’s claimed millions of pounds went missing following the collapse of the hedge fund. And The Scottish Sun told last week how four men — including tycoon Gregory King — have been reported to prosecutors probing the allegations.

King, 46, ran Heather subsidiary Mathon, where Sheriff Peter Watson — a former senior partner at Levy & McRae — was also briefly a director.

The Court of Session summons was served on the firm six months after he left the legal firm.

Watson is one of the country’s most high-profile lawyers and spent 33 years with Levy & McRae before quitting to set up his own business.

The visiting Strathclyde University professor sat on an expert panel created by former First Minister Alex Salmond to look into media regulation in Scotland.

Watson also acted for former Lord Advocate Elish Angiolini after she was harassed by a campaigner who was later jailed.

‘Their clients are a who’s who of Scotland’ And he includes ex-Glasgow City Council chief Steven Purcell among his list of clients, as well as senior police and prison officers.

The legal expert, 61 — chairman of Yorkhill Sick Kids’ Hospital charity — has also acted for former Rangers owner Sir David Murray.

And a Gers supporters’ group closed down its website following legal threats from Watson, who was working for under-fire directors Sandy and James Easdale.

A source said: “Watson and Levy & McRae are very well known and their clients are a who’s who of Scotland.”

Investors from around the world sunk their cash into Gibraltar-based fund Heather Capital, which launched in 2004.

Some of the cash was loaned to Mathon to bankroll developments across Scotland. But many of the Mathon-funded plans did not happen — and some of the cash was not repaid.

Liquidator Paul Duffy of Ernst & Young has been battling to recover investors’ cash since 2010 and is suing Heather’s auditors KPMG for negligence over their role. Isle of Man court documents — acquired by The Scottish Sun — claim Heather was operating a “Ponzi” scheme to dupe investors.

They alleged that as early as December 2006, senior KPMG staff feared that Heather Capital “may have been perpetrating a fraud”.

And in August 2007, KPMG employee Raymond Gawne told a colleague that he was “very uncomfortable” acting for the fund which “may have acted in a criminal manner”.

The claim also alleges that millions of pounds of loans passed through the client account of Glasgow lawyer Frank Cannon who acted for Heather. KPMG senior executive David McGarry sent an email to Gregory King stating: “Frank Cannon has been uncooperative, either in providing some form of explanation for all of the security documentation prepared by his firm, or in agreeing to facilitate access to Cannon’s clients’ money account”. McGarry added he did not accept “that this is due” to Cannon.

Watson declined to comment on the writ and Levy & McRae and Cannon did not respond to our requests for comment.

The Police Scotland report naming Mr King and his associates Andrew Sobolewski, Andrew Millar and Scott Carmichael is now being considered by the Crown Office.

A spokesman for Ernst & Young confirmed: “Heather Capital, via Ernst & Young, has made a claim against Levy & McRae.” And a KPMG spokesman said: “The passages in the plaintiff’s summons provide a selective and misleading picture and are drawn out simply to seek to make what is a wholly unsubstantiated case.

“The allegations are completely unfounded and are being fully contested by KPMG.”

GREGORY KING MARBELLA-based former Glasgow Academy pupil, 46, was a lawyer and taxi firm boss before launching Heather Capital in 2004. Family business dynasty includes nightclub boss cousin Stefan King.

PETER WATSON GREENOCK-born solicitor advocate, 61, carved out a fearsome reputation as a media lawyer during 33 years at Levy & McRae. He also dishes out justice as a part-time sheriff across Scotland.

KING’S £400million hedge fund Heather Capital loaned millions of pounds to Glasgow-based Mathon, of which Watson was briefly a director.

TOP lawyer and part-time sheriff Watson has acted for a string of high profile celebrity, political, sport and media clients in a glittering legal career:

Watson’s clients included Alex Salmond, Stephen Purcell, Elish Angiolini, Yorkhill Hospital Board, Rangers Chiefs.

and a further development reported by the Scottish Sun on the suspension of Sheriff Peter Watson:

Bench ban for sheriff linked to fraud probe

Lawman, 61, suspended

By RUSSELL FINDLAY 25th February 2015, Scottish Sun

A SHERIFF was suspended after he was linked to a collapsed finance firm at the centre of a massive fraud probe.

Peter Watson, 61, was barred from the bench by judges’ boss Lord President Lord Gill following an inquiry by The Scottish Sun.

Watson, whose past clients include ex-First Minister Alex Salmond, was briefly a director of Mathon, a company run by Glasgow bookie’s son Gregory King, 46.

It received millions in loans from King’s hedge fund Heather Capital which crashed owing a seven-figure sum.

Watson’s suspension came 24 hours after we revealed Heather liquidators Ernst & Young filed a multi-million court demand against his former law firm Levy & McRae.

Lord Gill, 73, can suspend sheriffs and judges if it’s “necessary for the purpose of maintaining public confidence”.

Watson forged a fearsome reputation as a media lawyer over 33 years with Levy & McRae before he left the firm six months ago.

King is one of four men named in a police report which is being considered by the Crown Office.

The Judicial Office for Scotland said last night: “Sheriff Peter Watson was suspended from the office of part-time sheriff on February 16.”

The National also recently reported on the continuing suspension of Peter Watson from the judicial bench, here:

Lawyer Peter Watson still suspended despite case ending

Martin Hannan Journalist

Peter Watson was suspended from the bench more than three years ago

LAWYER Peter Watson remains suspended from his position as a part-time sheriff despite a £28 million court action in which he was being sued having been brought to an end.

Lord Carloway, the Lord President and Scotland’s senior judge, is said by legal sources to be considering the position of Watson after Paul Duffy, the liquidator of Heather Capital, abandoned the £28m action against Levy and McRae solicitors in which Watson was a former partner.

Watson was suspended from the bench more than three years ago on February 16, 2015, after the then Lord President, Lord Gill, was informed of the claims in the case against Levy and McRae, and specifically against Watson, over Heather Capital’s collapse in 2010.

It was Watson himself who e-mailed the summons material to the Lord President’s office himself and volunteered “not to sit as a part-time sheriff on a voluntary basis, pending the outcome of those proceedings,” as the Judicial Office stated at the time.

The statement added that Lord Gill had “concluded that … suspension was necessary in order to maintain public confidence in the judiciary.”

Watson now has his own law business, PBW Law.

He told reporters: “I am very pleased that this action has been abandoned and I am looking forward to serving my clients now it is clear that there was no valid basis for this claim.”

A spokesperson for the Judicial Office said: “The action, in which suspended part time Sheriff Peter Watson was among the defenders, has settled.

“The Lord President will consider what, if any, steps now require to be taken?,” the spokesperson added.

 

 

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FAIR COP: Police Scotland officers fabricated intelligence in order to spy on journalists & sources in CCU spying scandal – evidence from Durham Constabulary’s Chief Constable to Holyrood Justice Committee

Chief Constable says Police Scotland hindered probe. SCOTLAND’S single national Police service – Police Scotland has been accused of fabricating intelligence to justify spying on journalists and sources – in connection with the unsolved murder of Emma Caldwell – who was murdered in South Lanarkshire, in May 2005.

Last Thursday, the Scottish Parliament’s Justice Committee heard from Michael Barton – the Chief Constable of Durham Constabulary – who candidly told MSPs that ‘evidence’ in the form of intelligence used by Scottish Police Officers to spy on their colleagues, and journalists – “was a lie”.

Chief Constable Barton was attending the Scottish Parliament to give evidence in connection with the Durham Constabulary investigation into events at Police Scotland where officers were found to have deliberately and illegally obtained communications data on journalists, while circumventing the judicial process around obtaining interception warrants.

The damning statement from the Durham Constabulary Chief in relation to Scottish Police officers fabricating intelligence – came in an exchange with Justice Committee member Stewart Stevenson MSP (SNP).

During questions, Mr Stevenson attempted to make a legal point to Mr Barton, stating: “… It would be perfectly legal for Police Scotland to have the intelligence that led to the action.”

However, Chief Constable Barton responded to the MSP, stating : “Not if it is wrong.”

Stewart Stevenson continued: ” No. I was going to make the point that having it does not make it correct.”

However, Chief Constable Barton did not back down, and said: “Police Scotland cannot keep something about somebody when it is a lie.”

Stewart Stevenson again raised the issue of the validity & existence of the intelligence at Police Scotland, stating: “I understand that, but it was perfectly proper for Police Scotland to have it in the first place before it concluded, as you say, that it was a lie.”

However, Chief Constable Barton was candid in his response, stating: “No. It was never legitimate for Police Scotland to have it, because it had made it up.”

The exchange between the two then ended with Stewart Stevenson saying: “Okay. That is clear.”

After that short, yet critical exchange, the meeting was brought to a halt, due to an ‘overrun of time’.

However, during earlier questions & answers, Chief Constable Michael Barton also accused the single Scottish Police force of preventing him from carrying out a full-scale misconduct probe.

Michael Barton said came up against a “culture of secrecy” at Police Scotland.

He also said Police Scotland’s complaints staff should be “put into a sack and shaken up”

Durham Constabulary’s Operation Seastorm report on the Counter Corruption Unit.

The Counter Corruption Unit (CCU) was used by Police Scotland to secretly spy on journalists & sources while circumventing judicial procures to obtain communications interception warrants.

A full report by the Sunday Mail newspaper on the Durham Constabulary report and spying scandal at Police Scotland can be viewed here: Police Scotland’s embarrassing illegal spying scandal began with a ‘suspicious’ Costa Coffee meeting

Police Scotland has earlier claimed that a full investigation had eventually been carried out into events at the Counter Corruption Unit (CCU), adding that there had been “significant organisational learning” from the case.

Seven Police Scotland officers from the counter corruption unit (CCU) were cleared by in-house Police hearings of misconduct in January following a lengthy investigation involving several police forces.

Police Scotland had asked their counterpart in Northern Ireland – the Police Service of Northern Ireland (PSNI) to ‘examine’ the allegations of misconduct.

The investigation, by Assistant Chief Constable Mark Hamilton, concluded that there was no misconduct on the part of any officer.

However, officers were found to have obtained communications data without judicial permission while trying to identify a journalist’s sources, after information about the Emma Caldwell murder inquiry was leaked.

An investigation by the Interception of Communications Commissioner’s Office (IOCCO) into the actions of Police Scotland officers said the failures “could properly be viewed as reckless”, however, Police Scotland’s senior officers maintained throughout that it had been an issue of “misjudgement” by an officer “misinterpreting” a newly-introduced code.

After the Interception of Communications Commissioner’s Office (IOCCO) identified that there had been a breach of protocols in June 2015, Durham Constabulary was asked to look into the breach.

The English force recommended a full misconduct probe, which was carried out by the Police Service of Northern Ireland – which resulted in all seven officers being cleared by their Northern Ireland Police colleagues.

Mr Barton told MSPs that he had initially been asked to conduct a full investigation, but later found this was downgraded to an inquiry – a lesser form of probe which would mean he would not have access to all documents or be able to interview people under caution.

He said: “As far as I was concerned, I was asked to investigate. That’s what I wanted to do. And I was prevented from doing so.”

Mr Barton said he was frustrated by the decision, and said there was “a lack of openness in certain parts of the organisation – and that remains so”.

He added: “I think currently, the lawyers in Police Scotland are not transparent, and they’re overly defensive, and they’re risk-averse, and that got in my way.”

In responses to questions Michael Barton added: “I got dreadfully cross with the legal people and the professional standards department people because I think they misinterpreted the rules, frankly, and I think they’re too risk averse, but they’re still smashing people. But it’s the culture.

“It’s that secrecy, that lack of transparency, that’s incredibly unfair to everybody, because there isn’t speedy justice.”

Mr Barton told Holyrood’s justice sub-committee on policing that the complaints processes at the Scottish single force needed to be “shaken up”.

He said: “What’s happened here, over time, is people have dug them into the trenches. So you can’t seem to get out of it. I think it’s preposterous that in an inquiry I was asked to go and speak to officers, and they couldn’t be held to account for what they told me.

“They could have just told me a load of old bunkum and I’d have had to write it down and hand it on to somebody who’s investigating, and then they’d look at me and say, ‘you’re not so good Mick, you’ve just put a load of bunkum in front of me’ because it couldn’t be a probing interview under caution.

“I think it’s grown over time. But I do think it needs everybody put into a sack and shaken up and told, ‘for heaven’s sake fix it, and stop it’. Because the only people who are suffering as a result of this are the complainants who are making complaints, and they have a less than optimal service, and the officers themselves, because it’s dreadful that they’re held under suspicion for quite so long.”

Following the conclusion of the misconduct probe, Police Scotland acknowledged that guidelines had been breached and said there had been “significant organisational learning” as a result of the case.

Dep Ch Con Rose Fitzpatrick – who was recently in the headlines for receiving ‘relocation’ payments of £67,000 and having a tax bill of £53,000 paid for her from public cash – claimed: “A full misconduct investigation was carried out by PSNI at our request, which is the element of the process that Chief Constable Barton says he was prevented from undertaking.

“The PSNI investigation found that there was no misconduct on the part of any of the seven officers who were investigated. It is our position, supported by external and independent legal opinion from a QC, that our regulations would not have permitted Chief Constable Barton from carrying out both the complaint enquiry and the misconduct investigation.

“We have previously said that there has been significant organisational learning from these enquiries and a report on this has been provided to the Scottish Parliament’s justice sub-committee.”

In the wake of additional revelations during the testimony of Chief Constable Michael Barton – who told MSPs that Police Scotland officers wanted to destroy evidence of illegally obtained surveillance data, the Justice Committee has since written to Police Scotland asking for assurances the data will not be destroyed.

A letter to Police Scotland, from the Justice sub-Committee on Policing states the following:

The Justice Sub-Committee on Policing is aware that Police Scotland has written to at least one of the complainants involved in the Counter Corruption Unit (CCU) investigation to inform them of the process going forward now that the conduct investigation has concluded.

The correspondence indicates that it is Police Scotland’s intention in the coming weeks to cleanse the contents of the relevant Force databases and to remove all material not considered to reflect the truth of those matters. Police Scotland is taking this action to reflect the Investigatory Powers Tribunal (IPT) judgement of 8 August 2016.

The Sub-Committee understands that the IPT’s view is that the destruction of this data without the consent of the applicants would appear to be in breach of the agreement contained within the order. The IPT has instructed that Police Scotland should desist from this action, unless it makes a further application to the Tribunal.

The conduct investigation has been completed, but there may be continuing related proceedings, for example in the High Court. The Sub-Committee is therefore seeking an urgent assurance from Police Scotland that it will not destroy any evidence or data until the applicants have consented.

The Justice sub-committee on Policing also wrote to the Scottish Police Authority, asking for information on the SPA’s oversight responsibilities for the process and the CCU investigation and the SPA’s view on Police Scotland’s proposed action to destroy evidence of illegality, and timeframe.

The full evidence session with Durham Chief Constable Michael Barton,  Investigator Darren Ellis of Durham Constabulary and the Justice sub-Committee on Policing can be viewed here:

Durham Constabulary Chief Constable evidence to Justice Sub committee on Policing 22 Feb 2018


Full report of Justice sub-Committee on Policing, Counter-corruption Unit (Durham Constabulary Reports):

The Convener: Item 2 is an evidence session on Durham Constabulary’s reports on Police Scotland’s counter-corruption unit. I refer members to paper 1, which is a note by the clerk, and paper 2, which is a private paper. I welcome Michael Barton, chief constable, and Darren Ellis, senior investigator, from Durham Constabulary. Thank you for travelling to see us. Chief constable, I invite you to make some opening remarks, if you wish to.

Chief Constable Michael Barton (Durham Constabulary): Thank you for your invitation to us both. This is not the first time that we have been in Scotland, because we were up for seven months on our investigation. The reason why I wrote to the committee was that I read the Official Report of a previous meeting that you had in relation to the matter, and I felt that some of the evidence that was given to you needed to be corrected.

The Convener: Your report and others have generated a considerable amount of paper and contain a lot of detailed information. Can I ask first about your terms of reference? Do you believe that there was clarity about that?

Chief Constable Barton: I will ask Darren Ellis to follow up on what I say. I was called by Chief Constable Gormley and asked to do an inquiry. It was going to be in two parts. First of all, there was to be an independent investigation, as described by the Investigatory Powers Tribunal. The law department in Police Scotland had given the IPT in London an undertaking that it would conduct an independent investigation, because the authorisations that had been gained within the counter-corruption unit were deemed to be unlawful by the IPT. I agreed to do that. The other part of the investigation involved reviewing a number of cases that the counter-corruption unit had been part of. When I scoped that part of the inquiry, I realised that it would be too much for us. It would have been an inordinate amount of work for Durham to do all its own business as well as both sides of the inquiry, so I asked the chief constable of Northumbria Police, with Chief Constable Gormley’s agreement, whether they would do that part of the inquiry.

When I was given the inquiry, it was made clear to me by the chief constable that we were being asked to do an investigation. That means that we can investigate, access all the documents and interview people, so that we can make a recommendation on whether or not there may be misconduct. Of course, all the way through any such inquiry, we must be cognisant that criminal matters may be revealed. By the way, we were satisfied all the way through the inquiry that there were no criminal matters that needed to be referred, but it is always something that we have at the back of our mind.

However, as we were doing our inquiry we were told, “This isn’t an investigation. This is an inquiry.” That is where I became a little bit confused and concerned. Have I got that right, Darren?

Darren Ellis (Durham Constabulary): Yes. What struck me was that, although the terms of reference for the piece of work were eminently clear, the chronology—without getting too detailed—was such that an inspection by the Interception of Communications Commissioner’s Office in June 2015 identified something that was later deemed to be unlawful. That was reported a month later, and then in more detail in November 2015.

The four adversely affected people, as they were termed by the Investigatory Powers Tribunal process, were in themselves complainants. Let us not lose sight of the fact that, at that time, two of the four were serving members of Police Scotland. Those people did not provide a complaint statement until February 2016. They were clear that the Investigatory Powers Tribunal process was to ensue, but they did not know what they did not know—one could argue, that those individuals were perhaps not engaged with, and nor were matters explained in any great detail or with any great haste, so they really did not know the position until the IPT position, in the August, was clear. That led to my staff having to re-engage with the complainants at that juncture, to find out what they were concerned about, and to determine the length and breadth of the work that needed to be done. That was done subsequent to any terms of reference.

In short, I think that the terms of reference were set far too early. The work that we were required to do was based on an undertaking on Police Scotland’s behalf to the IPT to fulfil an independent investigation. There were also four complainants who needed to be engaged with, reassured and satisfied, and answers given. The terms of reference, I would argue, were set far too early.

The Convener: That seems to be a pivotal part of the issue. The relationship between any misconduct or discipline issues—call them what you will; I am not sure what they would be called south of the border—and criminal matters would also be pivotal. It would be important for the individuals to understand their status and to know whether they were a witness, a suspect or an accused. Was no clarity given on those aspects in the initial brief? How were you initially advised?

Chief Constable Barton: I was initially asked to conduct an investigation, and that is what I agreed with Phil Gormley. Subsequently, the professional standards department in Police Scotland decided that we should conduct only an inquiry. I argued with the department all the way through that I should be allowed to do an investigation, because that was the commitment that Police Scotland had given the IPT, but I was never allowed to do an investigation. We were not allowed investigation status, which would have enabled us to speak to officers who may or may not have been guilty of misconduct and who it was certainly pivotal for us to speak to under caution.

The Convener: I do not wish to labour the point, but underpinning this are various pieces of legislation. Criminal matters are at the behest of the Crown Office and Procurator Fiscal Service and misconduct matters are at the behest of the deputy chief constable. Was there any discussion of the parameters?

Chief Constable Barton: It was unsaid. I cannot be clear about whether we had a specific agreement—it would have been an unspoken agreement. I do lots of inquiries in other forces, and there is an unspoken agreement that, when we are conducting misconduct inquiries, if we reveal criminality, there will be an immediate discussion with, in Scotland, the relevant law officer or, in England, the Crown Prosecution Service or relevant chief constable. The criminality side was not a problem. I was not concerned at all about that component of our terms of reference.

I do not know whether that is helpful.

The Convener: The issue seems to hinge on the initial contact, which is what I am trying to burrow down into.

Chief Constable Barton: Yes, it does.

The Convener: It is not unreasonable for a chief constable who is asked to investigate something to assume that it will be what the layperson assumes is an investigation. However, I am trying to link the issue into the investigatory powers system, what Police Scotland’s expectation was and whether Chief Constable Gormley asked you to deliver that expectation rather than an inquiry that might have encompassed misconduct and indeed criminality.

Chief Constable Barton: As far as I am concerned, I was asked to investigate and I agree that it was what the common man or woman would understand to be an investigation. That is what I wanted to do, but I was prevented from doing so.

The Convener: Members have a number of questions, but I will ask a final one. Were the terms of reference in writing?

Darren Ellis: Yes, but I refer to my earlier point that the terms of reference arrived in August or September 2016 and, at that point, we had not engaged with the complainants. I agree with Mr Barton that Mr Gormley’s request for an independent investigation came as a direct result of the wording that was provided by the IPT. However, with respect, sir, we should remember that, as part of that process, we also had four individuals who quite distinctly had made complaints to Police Scotland. Our investigation was to cover the requirements of the IPT process and the undertaking given by Police Scotland, but it was also to satisfy the four individuals who had made police complaints to Police Scotland, as they were entitled to do.

Stewart Stevenson (Banffshire and Buchan Coast) (SNP): I have a very simple quick question. Chief constable, you said that, when you initially looked at what you were being asked to do, it was beyond what you felt that Durham could undertake and hence Northumbria Police was brought to the table. Were there any downsides as a result of dividing the task in that way? I hope to hear that the answer is no.

Chief Constable Barton:#You will not be disappointed. There were no downsides whatsoever—that is why we divided it. In fact, if we had kept both tasks, there would have been confusion. What we gave Northumbria was a review of everything that was completely disconnected to the inquiry, and we kept everything that was connected to the inquiry. The two were completely separate tasks. When Phil Gormley first spoke to me, we discussed the fact that one was a really big task. The Northumbria force is more than twice the size of mine and, after a bit of cajoling, it agreed to take that. Seriously—it was not a small undertaking.

Stewart Stevenson: The two forces that were undertaking the work would have talked to each other if what they were doing revealed the need to do so.

Chief Constable Barton: Yes. We kept in touch, but I do not think that we found anything that strictly overlapped.

The Convener: I understand that Liam McArthur has a supplementary question on that.

Liam McArthur (Orkney Islands) (LD): Towards the end of the report to the SPA, you say:

“The findings have been reached on the basis that the alleged conduct occurred without any influence or participation from any officer of an Executive rank.”

You go on to say:

“However, in reaching this conclusion the SPA must also consider the restricted working environment Durham have operated within as articulated in the ‘Lessons Learned’ chapter. In particular the fact that Durham have not been able to fully investigate the conduct of the officers within the CCU by means of an unfettered misconduct investigation.”

That level of concern almost begs the question whether, in producing the report, you have legitimised a process in which you do not appear to have full confidence. Would that be a fair characterisation?

Chief Constable Barton: It was clear to me when we started on the process—when we first made contact with the four people who had been deeply wronged—that we had to try to bring fairness and justice to their position. My position at the start—it remains so, and I have articulated this to the deputy chief constable, as well as to the chief superintendent—was that if they had allowed me to do an independent investigation, I could have brought an end to the matter much sooner and much more effectively for the four complainants, because of course it is still not over.

I was frustrated, but it was clear that Police Scotland—erroneously, I believe—felt that I had to go through an inquiry for it subsequently to launch an independent investigation. In effect, it was putting me in as an interim investigator in order for there to be an independent investigation thereafter. I pointed out to Police Scotland more than once that I felt myself to be sufficiently independent.

To try to answer the question, Mr McArthur, it is instructive that, in the evidence that you were given at your previous meeting, a question was put to Chief Superintendent Speirs about the idea that people who deal with misconduct cannot deal with complaints. There is a real separation of those issues in the current interpretation within Police Scotland. I think that that is wrong.

Mr Speirs said that, to run an investigation, officers “cannot have any previous involvement in any complaint handling.”—[Official Report, Justice Sub-Committee on Policing, 23 November 2017; c 6.]

That is wrong. It is not what the regulations say. The regulations say three things about my status if I am to do any investigation. The first is that I must be a rank above the officers that are being investigated. I fulfil that criterion. Secondly, I must have the appropriate skills and experience. That is for others to judge. Thirdly, I must act impartially—and that is it. The false—in my view—separation between complaints and misconduct simply serves to lengthen the process, and Police Scotland does that all the time.

The way that I would have dealt with the matter if I had been in Police Scotland when it was first alerted to it is through IOCCO. IOCCO governs me, too—it governs the entire country. It is a really important day for me when, in effect, the High Court comes into my organisation and looks at the secret stuff that I do, so I have to be on my best behaviour, and I am prepared for that meeting. Generally, we get a clean bill of health, although sometimes minor recommendations are made.

However, the IOCCO report that Police Scotland got in June 2015 was excoriating. Police Scotland was told that people had acted illegally. Following the verbal report in June, Police Scotland got the report in July. At that time, two of the officers were still serving and two were retired. Even though they were in jeopardy and had been wronged, Police Scotland did not contact them.

The IOCCO report was published in November 2015. The four officers who were wronged were written to—in a regimented way—as a result of that report, but not by Police Scotland. They were told that they were in jeopardy. They were perplexed because, at that time, there had still been no contact from Police Scotland, even though it employed two of those people.

Then—I think that it was in February 2016—a complaint was made. As far as I can make out, that was Police Scotland’s first contact with the four people, bearing in mind that it had been told that it had acted unlawfully the previous June.

I need to put the matter into context and explain how I would have dealt with the situation. This committee meeting is necessary, but it is such a pity that we are here. If I had got a report from a High Court judge in June, I would have said. “We need to put this right—now.” I would have immediately made sure that the counter-corruption unit was fit for purpose. If I considered that some people needed training, that would have been done promptly; if I considered that people needed to be investigated, they would have been deployed elsewhere. I would have kept the High Court judge formally informed every month and informally informed every fortnight. Those four people would have been approached and we would have reassured them that everything that we had obtained illegally had been destroyed forthwith. That material has still has not been destroyed. Indeed, last week, I got a letter from Police Scotland asking me to oversee the destruction of the material that was obtained illegally in 2015.

If that had all been done, we would not be where we are. I have had four complainants, one of whom who is still a serving officer—Sergeant Steven Adams. He has been—and remains—gravely wronged. We have got—

The Convener: Mr Barton, I am sorry to interrupt you, but we have to go with what is in the report, so it would probably be helpful not to mention individuals, please.

Chief Constable Barton: Okay; that is fine.

Margaret Mitchell (Central Scotland) (Con): I seek clarification from the clerks about what we can and cannot say. Police Scotland is an inanimate object; it is a single force. What are we talking about here? Police Scotland is the police force under investigation and we must drill down into who has, as I understand it, blocked the investigation that Mr Barton thought that he could fully carry out but was not allowed to do so.

The Convener: I have conferred with the clerks. I am very keen that we thoroughly look into the matter. However, we have a lot of communications, which Margaret Mitchell is aware of, that suggest that some proceedings are still live. That issue is at the back of my mind when talking about individual officers. I am not trying to fetter Mr Barton’s explanation of the whole circumstances—

Chief Constable Barton: I have absolutely no intention of naming any officers who may—or may not—be in jeopardy. That would be incorrect of me and it could jeopardise further proceedings, so I will not do that. However, the names of the four people who were wronged is a matter of public record—they are named in the reports by the IOCCO, the IPT and Her Majesty’s inspectorate of constabulary in Scotland, all of which are in the public domain. I am simply repeating things that are in the public domain. I have no intention at all of embarrassing you, convener.

The Convener: No, it is not embarrassing—

Chief Constable Barton: Sorry, I meant legally embarrassing.

The Convener: Please continue.

Chief Constable Barton: We have four people who were—and continue to be—gravely wronged. Our problem when dealing with those four people is that, every time that we go to see them again, they feel that there is more conspiratorial activity by Police Scotland. I can understand why, because they are not getting to the end of it all. I try to reassure them that there is no conspiracy in Police Scotland and that the situation is a result of ineptitude. I reassure the committee that it is certainly not a conspiracy.

However, because this has carried on so long, we have four complainants, one of whom still works for the organisation, who feel that the organisation is ganging up on them. As a result, every time we see them, we get more allegations that we have to field in our inquiry.

I am simply trying to point out to you that Police Scotland’s aim is to be speedy with all this, but its current interpretation of the rules that it works under is, I think, wrong and does not serve anybody. Officers wait for years to get an adjudication and complainants wait for years to get satisfaction.

The Convener: On the point about the interpretation of the regulations, I believe that Police Scotland sought Queen’s counsel opinion and shared it with you.

Chief Constable Barton: I sought that too, and the legal opinion that I received was exactly what I thought it would be. I have a law degree, and I read and interpreted the regulations. What has happened is that Police Scotland has created a policy on top of the regulations, and it is working not to the regulations but to the policy that it wrote after the regulations. That policy does not carry the force of regulation. The regulations are clear; indeed, I have already explained the three things that I need to be in order to conduct an investigation.

I do not know whether I am going to be unhelpful here, but the way in which this is being misinterpreted is that Police Scotland is separating complaints from misconduct. When a member of the public complains to Police Scotland, the complaint is investigated; when that investigation is finished and it appears that there might be misconduct, the matter is pushed into the misconduct line. However, the complainant is told, “It’s all done and dusted. That’s it—your complaint’s been dealt with.” If they say, “What’s happening with the misconduct issue?”, they are told, “That’s nothing to do with you. It’s a completely separate matter.” That is wrong. If a complainant complains about something in my organisation, they are able to stay with the matter all the way through and we absolutely keep them informed—so much so, indeed, that they can be invited to the hearing, if there is one. They will certainly be informed of the result.

In my force, if the result takes us into misconduct, we will say, “This officer”—we would not name them, but the complainant would know who they were—“has got to have management advice and go on a training course.” At the end of the training course—say, a year later—we would inform the complainant of exactly what we had done. That does not happen in Scotland. Once Police Scotland deems the complaint closed, that is it. The complainant is pretty much set free, and the misconduct element is addressed completely separately and not transparently.

The Convener: Thank you for that. I see that members have a number of questions.

Rona Mackay (Strathkelvin and Bearsden) (SNP): Just to backtrack a wee bit, how much time elapsed between your thinking that you were about to conduct an investigation and your subsequently being told that it was an inquiry?

Darren Ellis: It was two to three months. The team and I started in earnest in early December. In the initial stages of any investigation, we clear the ground, gain understanding, obtain documents and speak to witnesses—not vulnerable ones, but ones who can help with the picture. Then the dialogue started with Police Scotland.

Rona Mackay: So you actually had a chance to start the investigation—or what you thought was going to be an investigation.

Darren Ellis: Absolutely.

Chief Constable Barton: There are one or two nuances with regard to the difference between inquiries and investigations, but, to help you, I would say that the main difference is that in an inquiry we cannot interview officers under caution. If we spoke to the officers who might be at risk, whatever they said to us could never be used in a subsequent investigation. That seemed bizarre to me. There was therefore no point in speaking to the officers, because whatever they told us would not be helpful to the person who subsequently took over my inquiry.

Rona Mackay: Finally, has this ever happened to you before, or is it something entirely new?

Chief Constable Barton: This is a novel experience for me.

Margaret Mitchell: You have said that we are talking about ineptitude rather than anything more serious. It is comforting that, at this stage, that is your conclusion.

Do you think that some of the ineptitude has been a result of having a single force—a single force that was under review because of what had happened? Given that the single force was under review, do you think that it was appropriate that it was the arbiter, that it set the policy and that it made the determination that you could not continue the investigation and that you could look only at complaints rather than conduct?

Chief Constable Barton: I cannot comment on whether I was asked to do an inquiry rather than conduct an investigation because there was a single force. Quite frankly, that did not cross my mind; I was dealing with what I was dealing with.

I think that there was a lack of openness in certain parts of the organisation—in the legal department, certainly—and that remains the case. When we conducted our inquiry, we wanted to look at everything. When we looked at the senior officers, we needed to see the emails that people sent each other before coming before your committee, to find out whether there was a conspiracy that involved people not telling you the truth, but we were told that we could not see those email chains.

The legal officers in Police Scotland misinterpreted legal privilege. We never asked to see legally privileged documents, which are documents relating to advice provided by a solicitor or a lawyer to their client. It is legitimate for a senior police officer or a member of the Scottish Police Federation to sit down with their solicitor and to be absolutely sure that those conversations are sacrosanct. I did not want to breach that, but the law officers in Police Scotland misinterpreted legal privilege—they deemed anything that a senior officer did as a result of such a meeting to be legally privileged, which is clearly nonsense. It took me two or three months just to get through that impasse.

Another impasse was to do with the fact that we wanted to speak to senior officers who had retired. Police Scotland wanted us to do that as part of the inquiry, but lawyers in Police Scotland said that we were not allowed to know where those retired officers lived, because that would be a breach of data protection. We asked them very politely how the devil we could get in touch with those people. Eventually—after another two months—we got the details and we were able to go and see them.

I think that, currently, the lawyers in Police Scotland are not transparent. They are also overly defensive and risk averse, and that got in my way. I cannot say whether that has anything to do with it being a single force.

Margaret Mitchell: That certainly chimes with the concern that some of us have had since the inception of Police Scotland that the checks and balances are not there to ensure the necessary accountability, transparency and openness. It seems to me that there is a conflict of interest if the organisation that is under investigation can block the passing on of information.

Could you comment on Northumbria Police’s report?

Chief Constable Barton: I have not seen that. I know that if Northumbria Police has not sent it, it is pretty much sent.

Margaret Mitchell: Have you reached any conclusions about the culture in the organisation? Northumbria Police’s report says:

“Within Police Scotland and unlike the complaints process in England, officers subject of an investigation by Police Scotland PSD/CCU often resulted in a counter allegation made against those officers who are conducting the investigation.”

It goes on to say:

“It is unclear if this is orchestrated by individuals or they are coerced in to this course of action by legal representatives, federation or peers but this does appear to be the immediate response following any executive action taken as part of CCU/PSD investigations.”

Chief Constable Barton: Darren Ellis might come in after my comment on this because he is closer to some of the detail.

What you describe to me, Ms Mitchell, is a culture. The reason why I fall on my sword smartly in any such situation and do so genuinely is that organisations need to have humility. That applies especially to police forces, because we yield power on behalf of our communities and states and it is crucial that we exercise that power with humility. Therefore, I fall on my sword quickly.

That is why I know what I would have done in this case. Darren Ellis, who is my former head of professional standards, would have come into my office and looked grave. It would have been clear to me within five minutes what I would have to do, which would be to have the four complainants in and apologise profusely.

When that does not happen, it permeates an organisation. Individually, there are some smashing people in Police Scotland. Everybody we met was a smashing person. I have to say that I got dreadfully cross with the legal people and the PSD people because they misinterpreted the rules, to be frank, and are too risk averse, but they are still smashing people. The issue is the culture.

It was instructive that, when one of the committee members asked what the four complainants were like, Mr Speirs said something like, “Oh well, we have sort of subcontracted that to Durham and Durham are really in touch with them and looking after them.” Yes, we are, but only by default. That should have been done by Police Scotland. It should have been really clear from day 1. That is why the officer who continues to serve continues to have a grave injustice inflicted upon him.

Margaret Mitchell: You said in your opening statement that there was information given to the committee that needed to be corrected. Has that now been corrected?

Chief Constable Barton: No.

Margaret Mitchell: Will you elaborate on what that was?

Chief Constable Barton: Thank you. I will now take you through the Official Report of your meeting of 23 November 2017, if you do not mind.

The end of the paragraph at the top of column 6 says: “the process seems to have become complicated and somewhat protracted.”

I emphasise to you that that is because of the decisions that I have just described—the way that risk-averse decisions were made. However, I agree with the convener at the time, who suggested that it did not need to be so.

I disagree that “Complaints and conduct are two separate matters in … the Police Service of Scotland (Conduct) Regulations 2014”.

They are not. That is just how they have been misinterpreted.

The Official Report says that it was “Police Scotland’s intention to publish a redacted version” of our report. I have sent you an unredacted version of both our reports. I sent them before the end of the year. As the reports’ author, the handling codes on those documents gave me the right to do that.

Halfway down column 7, Chief Superintendent Speirs said: “It would probably be unfair for me to go into the finer details because that, in itself, would probably identify those officers.”

Those officers are already named in three separate published reports.

At the top of column 8, he says: “The report becoming public would prejudice the investigation.”

However, the matters looked into were already in the public domain in the IPT judgment, the IOCCO review and the HMICS report. People say that they want to be open and transparent but everything that they do and say militates against that.

At the bottom of column 8, Chief Superintendent Speirs says that providing a summary “would be incredibly unfair on the officers who are subject to the inquiry at this time”.

He has got that wrong. It is incredibly unfair to the four complainants and, actually, the length of the process is incredibly unfair to the officers. That secrecy and lack of transparency are incredibly unfair to everybody, because there is not speedy justice.

At the bottom of column 9, Chief Superintendent Speirs says: “The redaction will largely be in the Durham report and will relate to very personal information.”

At the bottom of column 13, in response to Ms Mackay’s question, he goes on to say that my report “goes into fine detail about the officers”, such as “their ages”—I never mentioned anybody’s age—and “their postings”. I mentioned their relevant postings—whether they were in the CCU or part of the murder inquiry or neither. He says that my report contained “a whole raft of other details.”

Forgive me, but there was no raft of other details. There were no ages. I simply named the officers and where they worked, and that information was drawn from three reports that were in the public domain.

At the top of column 14, Chief Superintendent Speirs says: That is a good question. I will be honest with you that the report is written in Durham’s style.”

There is an implication there that, bless me, I have created a Durham style that is not quite up to snuff in Scotland. I absolutely disagree with that judgment. He goes on:

“When we asked that force to do an investigation and provide a report, we accepted the report in the format that it provided. I gave the force guidance on the normal approach that Police Scotland anticipated, but I am working with the report that Durham submitted to us.”—[Official Report, Justice Sub-Committee on Policing, 23 November 2017; c 6, 7, 8, 9, 13, 14.]

The implication is that he told us exactly how he wanted his report and we failed to comply. He gave us one sheet of paper, which I have supplied to the committee, with a Police Scotland heading on it—that was it. I have done quite a few such reports, and the most important parts of them are the lessons learned, but that was not part of any template that we were given. The really instructive thing is that, when we spoke to the Police Service of Northern Ireland, as we had to because that service took over the inquiry, and we had to brief it, we found that the Police Service of Northern Ireland was told by Police Scotland—by Mr Speirs’s department—to follow our report structure, because they found it helpful.

At column 19, Mr Finnie asks about suspension. I never spoke to anybody about suspension. It was never raised with me and I did not offer an opinion, as that was not within my brief. However, since it was mentioned and there was an implication that we were involved, I will say this: I do not think that those officers in the CCU should have continued in the CCU after the decision was made by IOCCO. I am going back now to June 2015.

I am sorry for going on, convener, but I have one more comment. Actually, it is more of a comment about timeliness. I moved at pace, and the only times that we paused were when we asked for preliminary assessments. At any time in our inquiry, the officers in the professional standards department could have done a preliminary assessment. If they had done that, they could have switched the process, even under their arcane rules, into an investigation, and they chose not to do that. We gave them ample opportunity on a number of occasions to switch to a full investigation. We were balked in speaking to some people because we were not given the addresses and we were balked because we were not allowed to see what were assessed as being legally privileged documents, although they were not. I just wanted to comment on timeliness.

The Convener: Thank you—it has been helpful to get all that on the record. I am told that it is also important to put on the record that, as the unredacted reports were Police Scotland and SPA reports, the sub-committee was unable to publish them—as you will be aware, we publish all documentation in advance of meetings. Members are therefore not able to refer to those particular reports.

Daniel Johnson (Edinburgh Southern) (Lab): It sounds to me as though there are two fundamental issues. One issue is the timing of the setting of the scope of your work. As I understand it, the complainants had not had the opportunity to come forward at the point that the scope was set. Is that correct?

Chief Constable Barton: They had not come forward in an informed manner.

Daniel Johnson: The second issue is the interpretation of regulations. You are saying that the same regulations apply to all forces in the United Kingdom, but that Police Scotland has interpreted them in a different way. Is that right?

Chief Constable Barton: No, that is not true. There are different regulations in Scotland. The main difference is that Police Scotland officers can make a complaint as if they were a member of the public. Police officers in England and Wales cannot do that.

Daniel Johnson: Are you saying that, in essence, there should be no difference in how a complaint is pursued thereafter?

Chief Constable Barton: When I saw the Police Scotland regulations, I was entirely comfortable with them because what was in them is the same as what I had worked with in England and Wales. When I saw those three rules for doing an independent investigation, they were fine by me. However, I think that how the regulations have been wrapped up in procedure and policy thereafter in Police Scotland is the reason why the problems started.

Daniel Johnson: You referred a number of times to having done a number of similar investigations in the past and in a number of different forces in the rest of the UK. So that we can get an understanding of how unique your experience in Scotland has been, will you tell us how many you have done?

Chief Constable Barton: I am conducting some quite confidential inquiries at the moment. I have not just inquired into England and Wales matters; I inquire into matters in other countries, but I am not at liberty to explain that. All I can say is that I was flummoxed by the interpretation—misinterpretation, in my view—of how we should proceed.

Darren Ellis: I was the head of PSD for seven years, so my total runs into dozens. I have never been confronted by the issue that we were confronted by here.

Durham picked up four adversely affected, disillusioned people who had not been given respect. You should keep looking to see whether any of the Police Scotland values of integrity, fairness and respect shine through in this plot. Misunderstandings and myths built up because those people had not been shown respect by being given an explanation.

I can understand why your are drilling down into the terms of reference, but, outwith Durham conducting an independent investigation, what did we need in further detail? The investigation started with the four individuals not really understanding the terms of reference. For terms of reference to be meaningful, they needed to be pliable and flexible enough to meet the needs of the four complainants.

Notwithstanding that, for the IPT process to meet its statutory responsibility—this has been shared with Police Scotland—it has to oversee an effective remedy, which, as written down in the regulations, is an investigation on which reasonable decisions can be made. It has yet to be decided whether the process adopted by Police Scotland meets the needs of the complainants who have spoken to the IPT.

Daniel Johnson: That is a really critical point. I hear your differences of opinion with Mr Speirs’ evidence and I hear what you are saying about how the legal department interprets the regulations. Is the source of the issues regarding the way that Police Scotland has interpreted the regulations and implemented its processes and procedures limited to the legal department, or does it extend beyond that? To what extent is there a responsibility on senior officers to ensure that their legal processes are fit for purpose and serve the interest of the officers in their force?

Chief Constable Barton: I have a great deal of sympathy for the chief officers of Police Scotland, because the process is one that they have received rather than one that they have designed.

I think that the situation started with an overcautious approach. My impression is that the unions—Unison, the Scottish Police Federation and the Association of Scottish Police Superintendents—sat down and asked themselves how they would work in the process. The process has become overly protracted, and I understand that the Scottish Police Federation has lodged judicial review proceedings against the force. That tends to create polarised opinions. The only way in which to make the regulations breathe and work so that people can feel that there is fairness is for there to be co-operation on all sides.

The issue is not principally or exclusively the legal department. All that I have to say is that I got quite cross at times with the way in which it dealt with our reasonable requests for information. However, the process has grown like Topsy, and people have added in a little word here and a little word there. I will give you an example. Darren, have you got the policy in front of you? Can you find where two or three items have been added?

Darren Ellis: Yes, I have the guidance.

Chief Constable Barton: Will you find the policy, Darren? Thank you. That will help the committee to understand how I think things have grown.

I refer members to part 2 of the Police Service of Scotland (Conduct) Regulations 2014, on “Misconduct investigations”. Regulation 10(5) states: “An investigator appointed under paragraph (4)(a) must— (a) be a constable of a higher rank than the constable being investigated; and (b) have the necessary knowledge, skills and expertise to plan and manage the misconduct investigation in relation to which the appointment is made.”

Regulation 10(6) states: “The deputy chief constable must not appoint as an investigator any constable whose appointment could give rise to a reasonable concern as to whether that constable could act impartially in relation to the misconduct investigation.”

I will explain how that regulation has been interpreted. People have considered a situation in which somebody has a look at something in a preliminary inquiry and they have asked themselves whether that person could be impartial for the second half of that work. In order to ensure that they are bombproof on that aspect, they have built into the policy that the person who does the inquiry cannot do the investigation.

They have taken that view instead of taking a pragmatic view. Goodness me! I do not know any of the protagonists in this inquiry—other than Mr Gormley, when I entered into the work—so I must be seen as impartial, yet I was not deemed impartial because Police Scotland concentrated on the rule that it had created, over and above the regs, that the person who did an inquiry could not do an investigation. Does that answer that point?

Daniel Johnson: It does. I have a final question. It is clear that you found that the legal department put stumbling blocks in your way. Did you experience any other blockages or impediments from other people in Police Scotland as you tried to do your work?

Darren Ellis: Irrespective of which legislation you are speaking about, which conduct or complaint regulation you are using or whether the matter relates to England, Wales or Scotland, there is an expectation that, on receipt of a complaint—no matter what it looks like—a preliminary assessment will be conducted. That preliminary assessment has never been carried out in this investigation, and that is a significant issue.

I was initially told that a preliminary assessment had been completed. I was then told that one had not been completed. Then I was told that one had been completed and lost, and, after that, I was again told that one had not been completed. Over six to eight weeks, I tried to identify the starting point and what Police Scotland considered to be the views of the four complainants and the IPT, because an assessment of that would dictate the play. I do not believe that that work was ever done—

Chief Constable Barton: We do not know, do we?

Darren Ellis: We do not know. That is another reason for the delay. It was a really difficult position, because I did not have a starting point.

The Convener: Are there items of correspondence or email exchanges regarding that particular aspect?

Darren Ellis: Not to my knowledge. The last instruction was that, after a degree of searching, consultation and engagement with key members of staff, there should be a preliminary assessment. That is a fairly significant piece of work and it is required for a complaint at even the lowest level, which the case that we are discussing is not at—as we know, it was described as serious, unlawful and in need of an independent investigation by the IPT. Therefore, for a preliminary investigation to be absent is surprising and of concern.

Liam McArthur: At various stages, you have referred to ineptitude within Police Scotland, a culture of secrecy and risk aversion and a number of other concerns. You have given evidence on why you have come to your conclusions. At any stage, did you have conversations with the former chief constable or, more recently, DCC Livingstone, about those concerns, recognising that you appear to have come up against impasses with the legal department and others?

Chief Constable Barton: Can I name the two chief officers I have spoken to?

The Convener: Yes.

Chief Constable Barton: I have not spoken to Mr Livingstone about it, because he is not part of this. On the decision making, I have been speaking to DCC Fitzpatrick. I also spoke to Mr Gormley when he first rang me. Because he was the chief constable, I would not have expected to speak to him at all after that. However, when I was frustrated by an early meeting with the professional standards department, I met him at a National Police Chiefs Council meeting and asked him to have a word, because the process was not moving as quickly as I would have liked it to. That was the length and breadth of our conversation. I would not have anticipated the conversation being more than that, because the chief constable has to be kept separate in these matters as they can sometimes be called on to adjudicate. That would be the standard procedure for me—I would not want to compromise him.

It is a matter of record that DCC Fitzpatrick does not agree with my interpretation. She stands by Police Scotland’s interpretation, and you are right to note that Police Scotland has received advice from lawyers. However, I think that that advice is wrong.

The Convener: As part of your engagement, were you given a point of contact? Were you given any support from Police Scotland in the form of a staff office or something of that nature?

Chief Constable Barton: We are pretty much self-contained. We do lots of these investigations, and we are not needy people. Our point of contact was the professional standards department—principally Mr Speirs.

Ben Macpherson (Edinburgh Northern and Leith) (SNP): Much of what I wanted to ask has already been covered. Going back to the issue of the obstruction that you felt you encountered in relation to the legal team in particular, do you feel that that was a culture that had continued from historical arrangements pre-merger, or did it appear to be a set of practices that had come about in recent times?

Chief Constable Barton: My understanding—which accords with the findings of the judicial reviews—is that the federation, the supers, the professional standards department and the lawyers have got into a position whereby things have been made overly legalistic, which is not what the regulations called for. The regulations were designed to get rid of that over-lawyerliness, so that people could sit down and learn lessons. The intention was to ensure that the complaints would be a liberating experience for an organisation because they would shine the light on where people were getting let down. However, that is not what has happened in this case. What has happened here is that, over time, people have dug themselves into trenches and they cannot seem to get out of them.

It is preposterous that, in an inquiry, I was invited to speak to officers who could not be held to account for what they told me, which meant that I could not conduct probing interviews under caution. They could have just told me a load of old bunkum and I would have had to write it down and hand it on to someone who was investigating it, who might have looked at me and said, “You’re not so good, Mick. You’ve just put a load of bunkum in front of me.”

My answer to your question is that that culture has grown over time. I think that everybody needs to be put into a sack, shaken up and told, “For heaven’s sake, fix it—stop this.” The only people who are suffering are the people who make complaints, who are getting a less-than-optimal service, and the officers themselves—it is dreadful that they are being held under suspicion for quite so long.

Darren Ellis: Members of the public are suffering, too. They deserve openness, transparency and explanation. If their rights cease to exist from the point at which the complaint inquiry is completed and do not continue right to the end of the process, that is contrary to what all the strategic documents say about explanation, apology, openness, transparency and understanding—those things are never achieved.

Mr Livingstone was interviewed as part of our inquiry, but his involvement was not significant and was discounted in the SPA report. It is right to explain that the work that Northumbria Police did was on recommendation 39. I am sure that the committee is overseeing the previous 38 recommendations with regard to the counter-corruption unit.

Chief Constable Barton: You are referring to the HMIC report.

Darren Ellis: Yes. When we were investigating processes in the counter-corruption unit, other stakeholders had observed that improvement—38 recommendations’ worth of improvement—was required. We did not see the application of any policy book or any rationale around decision making that would have made our hypotheses and conclusions a bit different. If we understood why certain individuals embarked on certain actions, the picture might have been different, but there is nothing to defer to in helping us to understand the decision-making rationale as to why what we would call actions in the investigation that brought about the illegal applications were taken. The absence of any explanation of why that was done or where it would take the investigator makes it all the more concerning.

The Convener: I am not clear whether the committee’s role includes sack shaking. We can look into that and get back to you.

Chief Constable Barton: It is a great English custom. [Laughter.]

The Convener: It sounds like a commendable practice.

Margaret Mitchell: You have highlighted that there are four people who have been seriously wronged, and it appears that they are still being wronged. The committee has received a letter from one of the complainants. I think that you said that the IPT is deliberating on whether Police Scotland has delivered a “reasoned decision” as required by the IPT judgment. Those deliberations are still on-going.

The complainant says that, despite that, an attempt has been made to close down the whole episode, as the letter from Alan Speirs shows. It says: “I write to advise you”— “you” being the complainant— “that in line with the IPT recommendations, it is the intention of Police Scotland to cleanse the contents of the relevant Force databases and all material not considered to reflect the truth of these matters will now be removed.”

I take it that you would be absolutely opposed to that, as the committee has already said it is.

Chief Constable Barton: No—that bit needs to be done.

Margaret Mitchell: That is interesting.

Chief Constable Barton: In my evidence, I said that, if I had been the chief or the senior officer who in 2015 had received the very critical IOCCO report that said, “The activity that you engaged in against those four people in April of this year was illegal and you shouldn’t have done it,” I would have got rid of that material then and there. That is the material that DCC Fitzpatrick invited me to oversee the destruction of, when she wrote to me last week. We will do that, but we have not yet put in place the arrangements for that. The phone records that were illegally obtained still exist in Police Scotland. They are sealed off, but they still exist and they need to be destroyed. We will oversee the destruction of those records.

Margaret Mitchell: I am a bit puzzled—I am not sure that I understand that, and the complainant certainly does not, because—

Chief Constable Barton: You have hit the nail on the head with the fact that you are perplexed. Because people take an overly lawyerly approach to the issue, rather than sitting down and having a normal conversation in everyday language, they do not understand what has happened. That is exactly what has happened to the four complainants all the way through. They have either been starved of information or have been given very legalistic and dry information. Frankly, it is hard to understand some of the letters.

Margaret Mitchell: Should the destruction of the records not be halted until the investigation is fully complete if there is even a scintilla of uncertainty about whether they are relevant?

Chief Constable Barton: I would do that only after I had contacted the force. I am not going to steam in and destroy records without going to see the four complainants. We have a good relationship with the four complainants and we will not do anything pivotal in the inquiry unless they are kept briefed. I did not tell you that, because it is just like breathing.

Darren Ellis: Those letters are really recent—they could even have been sent this week. I am picking up a vibe from you, Mrs Mitchell. It is our shout to provide quality assurance to the four complainants. We will not oversee any destruction of data until we are sure that all proceedings ensuing from this debacle are concluded. Two of the complainants are in the room today and I am sure that we would have their consent for Police Scotland to hold that information until all matters are finalised. It would be wrong to destroy the data before then, because it could contain information that is helpful to those four, who may consider other proceedings.

Margaret Mitchell: Thank you. That is greatly reassuring.

The Convener: Yes. It is helpful to have that on the record. Stewart, do you have a question?

Stewart Stevenson: I want to get absolute clarity, so I will use a particular form of words. The data or information about which we are talking is data or information that it has been determined it is not legal for Police Scotland to have. Let me correct myself. The process by which Police Scotland obtained the data is not legal and, therefore, it is not legal for Police Scotland to hold that data. That is the data about which we are having this discussion.

Darren Ellis: It is three forms of data. It is the data that led to the application, the application process itself and the data received as a result of the application process.

Stewart Stevenson: Yes. However, to be absolutely clear, I am not focusing on the process, because all that we can destroy—when and if that happens—is the data and information that is obtained.

Chief Constable Barton: No—we can destroy the false intelligence that was used to acquire the data. All of it must be cleansed. Anything that is wrong, in any of the process—from the start, before any data was even collected—must be cleansed.

Stewart Stevenson: I was just making sure that we have on record a clear understanding of what data we are talking about. As a layperson, it seemed to me that there was a danger that—

Chief Constable Barton: Could I help? Data was obtained, but information and intelligence was used to obtain that data. The information and intelligence will be cleansed as well as the data itself.

Stewart Stevenson: Sorry—I will return to that subject. It would be perfectly legal for Police Scotland to have the intelligence that led to the action—

Chief Constable Barton: Not if it is wrong.

Stewart Stevenson: No. I was going to make the point that having it does not make it correct.

Chief Constable Barton: Police Scotland cannot keep something about somebody when it is a lie.

Stewart Stevenson: I understand that, but it was perfectly proper for Police Scotland to have it in the first place before it concluded, as you say, that it was a lie.

Chief Constable Barton: No. It was never legitimate for Police Scotland to have it, because it had made it up.

Stewart Stevenson: Okay. That is clear.

The Convener: We have gone over our time. Mr Barton, I know that you have read previous Official Reports. You also talked about the pivotal role that senior officers could have played in this issue. Our early engagement on the issue was with former Deputy Chief Constable Neil Richardson. Do you wish to comment on your examination of the Official Report and on whether DCC Richardson has been helpful to us in discharging our obligations in relation to scrutinising the issue?

Chief Constable Barton: My preference is that you read the report that I provided to the Scottish Police Authority. I am very clear in that report.

The Convener: I am grateful for that response.

Thank you, Mr Barton and Mr Ellis, for your attention to detail on the issue and for coming here today. I wish you a safe journey home.

14:10 Meeting continued in private until 14:25.

 

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